A Morrisville Town Council race settled by two votes is likely headed for the State Board of Elections under an appeal filed today.
Friday's recount confirmed that challenger Michael Schlink leads three-term incumbent Linda Lyons by two votes, 681-679. But attorney Michael Weisel said the Wake Elections Board shouldn't have disallowed eleven absentee ballots that could have changed the outcome.
Weisel represented Lyons in the recount, but he brought the complaint on behalf of two voters whose absentee ballots were disqualified.
One protest, filed by Vivian Mills, represents three voters whose absentee ballots were disallowed because they were witnessed by candidate Linda Lyons. That's a violation of state law. Courts might decide disputed Morrisville election
At Friday's hearing, Weisel told the Wake County Board of Elections his client shouldn't have been disenfranchised because of Lyons' infraction.
"Why would a voter know that a candidate can't witness [a ballot]?" Weisel asked. "The Wake County instructions don't say that. They say nothing. They say, 'Find a witness.'"
Another protest, filed by Carolyn Pearson, argues eight other ballots should have been accepted because state laws are unclear about the deadline by which a municipal absentee ballot must be received by the local elections office.
The rules promulgated by the state board and reproduced on the absentee ballot say absentee ballots must be received by 5pm the day before the election. But state law isn't so clear, Weisel argued. In one place, it says ballots must be postmarked by the date of the election and received up to three business days later.
"Voting is a fundamental right," Weisel told the board. "These protestors have had their rights violated."
Schlink's attorney Roger Knight disagreed. "This is so close. If the election is tainted by misconduct, then what confidence do the people of Morrisville have on how their elected representatives got there?"
The Wake County Elections Board voted 2-1 not to open a hearing on Weisel's protests, noting that the absentee ballot itself gave a clear deadline, and that those voters whose ballots had been disallowed because they were witnessed by Lyons had been contacted and offered a chance to cast another ballot on election day. Several did.
"We want people to vote. We want people to exercise that right as far as possible," said Wake board chairwoman Aida Doss Havel. "But it has to comply with not only the statutes of North Carolina but also the directives of the State Board [of Elections]."
Board member David Robinson noted that the case would likely end up at the state board, anyway, so holding a county hearing on the matter would just delay its resolution.
There's no word yet on when the State Board of Elections will hear the appeal. If it declines, or if either side appeals its decision, the next venue for the case would be Wake Superior Court.
Lyons, a longtime councilmember, made news previously when she attempted to vote twice. She said she forgot she had already voted. Had the error not been caught by a poll worker, she would have been guilty of a felony. The Wake Elections Board has already referred her other infraction to Wake DA Colon Willoughby for further investigation.
Weisel said Lyons was out of the country and unavailable for comment on the board's decision.