State Judge Tosses Superintendent's Race To Legislature

Judge Henry Hight said it was up to the elected body, not the courts, to decide the race for superintendent of public instruction. Legislators passed a law this session that gives them the authority to settle disputed races.

The 4 1/2-month standoff over the state school superintendent's election jumped to the federal courts earlier this week when a Republican sued to keep the newly approved laws from applying to the race.

Democrat June Atkinson leads Republican Bill Fletcher by 8,535 votes, but no winner has yet been finalized due to Fletcher's protest over 11,000 provisional ballots.

The Republican-majority state Supreme Court agreed last month with Fletcher that those out-of-precinct ballots were unlawful and told the Superior Court to come up with a way to remove them from the count.

But Democrats in the General Assembly have passed two laws that order the provisionals included in the totals and set down rules by which the Legislature can decide the race.

John Wallace, Atkinson's lawyer, said the federal lawsuit was ``an effort to thwart the will of the General Assembly and to obstruct the process that is established in our constitution'' to resolve contested elections.

The federal filing came the same day that Hight heard more arguments from the state, Atkinson and Fletcher on the new laws and whether they should be applied to the superintendent's race.

Fletcher's attorney told Hight that legislators were usurping the powers of the judicial branch by trying to change the rules of the election after the fact. Following the Supreme Court ruling, he said, Fletcher has a right to have the provisional ballots kept out of the tally.

Alexander Peters of the state attorney general's office said lawmakers did not change the law, but only clarified the intent of a 2003 law that Democrats say was intended to ensure that out-of-precinct ballots were counted. Such votes were tallied during last year's primary and primary runoff elections.

Atkinson asked the General Assembly to intervene in her case last week, less than three hours after Easley signed into law the procedures for resolving a contested election.

According to the new procedures, a 10-member panel would hold a hearing before the General Assembly meets in a joint session to choose a winner. Atkinson would hold the advantage in such a scenario, as Democrats hold a majority of seats in the Legislature and the rules do not allow the loser to appeal the General Assembly's decision.

Either side ultimately could appeal any ruling by Hight or the federal court.