Judge Denies Request to Throw Out Provisional Ballots

Wake County Judge Henry Hight refused to issue a temporary restraining order that would have halted the recounts. Barring a successful appeal, county election officials are required to report their recounted results to the state by the end of the day Wednesday.

Stopping the recount would have delayed a final result in two statewide races - superintendent and agriculture commissioner - and could cost the state $200,000, lawyers for the state said in court Monday.

Bill Fletcher, the Republican candidate for superintendent of public instruction, sued the State Board of Elections to attempt to stop it from counting the provisional ballots cast by people who did not live in the precincts in which they voted.

Fletcher last week requested a recount in his race against Democrat June Atkinson. The unofficial vote totals showed Fletcher lost his race by about 9,200 votes.

Fletcher and local candidates in Mecklenburg and Guilford counties wanted recounts to stop while the candidates seek to have the disputed ballots disregarded.

The Republican candidate for agriculture commissioner, Steve Troxler, led Democrat Britt Cobb by more than 2,600 votes.

Another statewide election costing $3 million to $3.5 million is possible as elections officials try to answer the multiplying questions about ballots counted and not counted.

Provisional ballots, which are shaping up as an issue as contentious as Florida's "hanging chads" in 2000, are given when a voter shows up at the polls and his or her name is not on the precinct rolls.

Election officials determine after the election whether the voter was registered to vote, and whether that vote should be counted. Some voters this year voted outside their home precincts out of convenience or confusion because of a change in federal law.

Michael Crowell, a lawyer for Fletcher, argued Monday in court that the state constitution requires that voters reside in the precinct where they vote for 30 days before an election. Fletcher and the others want the state and local votes on those ballots invalidated.

Out of the roughly 76,000 provisional ballots cast on Nov. 2, Crowell said he estimated about 10,000 fell into the "out-of-precinct" category.

Susan Nichols, a special deputy attorney general for the state, said she noted the constitution talks about voters living in the "precinct, ward or other election district." She argued that the "election district" means counties, since that is where voters are registered, and that their registration remains valid unless they move outside the county.

She said Fletcher's logic would invalidate most early votes, since those voters went to central locations such as county boards of elections, instead of their home precinct.

Federal courts upheld challenges to provisional ballots cast in the wrong place in Ohio, Florida, Missouri, Michigan and Colorado, said Doug Chapin, director of electionline.org, a nonpartisan Web site that collects and analyzes information on election changes.