The suit claims that the federal law requiring states to allow provisional ballots contradicts the state Constitution. The state Constitution said that eligible voters must vote in the precinct where they reside.
"It is a state Constitutional requirement that one has to have lived in the precinct for 30 days to vote in an election in North Carolina," attorney Michael Crowell said.
Fletcher believes those provisional votes should be thrown out. A candidate for Mecklenburg County Commission and a Guilford County Commission candidate have joined Fletcher.
Recounts are under way across North Carolina for votes in the state superintendent race and the state agriculture commissioner race. Officials say recount results have to be reported to the State Board of Elections by the end of the day on Wednesday.
Until a judge decides the question of constitutionality, Fletcher wants the recount halted, but June Atkinson, Fletcher's opponent, questions his motive.
"It's very perplexing to me that he would call for the recount and then now ask that the recount be stopped," she said.
Fletcher said he has a different take about the situation.
"Let's all play by the rules. Let's make sure we know what the rules are. Let's have an accurate count and declare a winner," he said.
Judge Henry Hight said he would look over all the documents and issue a ruling Tuesday. Even if he decides to let the recount continue, he could schedule another hearing to decide whether all the provisional ballots should be counted. The plaintiffs hope that hearing will take place later this week.
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