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Division, intrigue, then acceptance as new State Board of Elections holds first meeting

Posted March 21, 2018 11:23 a.m. EDT
Updated March 22, 2018 4:24 p.m. EDT

One of several deadlocked votes Wednesday, March 21, 2018, for the new N.C. State Board of Elections and Ethics Enforcement. Republicans and Democrats on the board took several 4-4 votes before agreeing on two nominations as the board's potential ninth member. One GOP member is not pictured and participated in the meeting by telephone.

Update: Gov. Roy Cooper has selected Damon Circosta, executive director of the A.J. Fletcher Foundation, to be the board's ninth member. The announcement came at about 5:45 p.m., and the governor chose Circosta over Burley Mitchell, a former chief justice of the North Carolina Supreme Court.

RALEIGH, N.C. — Democrats got their choice for the new State Board of Elections & Ethics Enforcement's tie-breaking ninth member Wednesday after a back-and-forth of deadlocked votes that killed Republican efforts to nominate longtime Democratic voters to the position.

A provision in unrelated legislation passed last month called for the elections board to consist of four Republicans, four Democrats and one person unaffiliated with either party. The eight Republicans and Democrats were supposed to nominate two people for the final slot, with the final decision made by Gov. Roy Cooper.

At one point Wednesday, the board's four Democrats, then its four Republicans, voted for Gerry Cohen, a longtime legislative attorney who was a registered Democrat up until this week. But they didn't all vote for Cohen at the same time, so despite that support, his name was left off the list of the two nominees.

The nominees are former chief justice of the North Carolina Supreme Court Burley Mitchell and Damon Circosta, executive director of the A.J. Fletcher Foundation. The foundation was started by the founder of Capitol Broadcasting Company, which owns WRAL-TV. Capitol Broadcasting leadership sits on the foundation board.

Before joining the Fletcher Foundation, Circosta headed the North Carolina Center for Voter Education, a nonprofit and nonpartisan organization dedicated to helping people participate more fully in democracy.

Democrats on the board clearly pushed to make sure Circosta's name was included. Mitchell was initially suggested by a Republican member.

Mitchell and Circosta are both registered as unaffiliated voters, but both have voted in Democratic primaries for years with one exception: Mitchell pulled a Republican ballot in the 2016 presidential primary. North Carolina publishes records of voters' party registrations and the primaries they participate in, but not who they voted for.

Not being registered with the Republican or Democratic Party is a requirement for the ninth board member. Cohen said he was asked to change his status to be eligible for the board, which he did Tuesday. Before that, he'd been a Democrat going back to 1971.

It was a convoluted journey just to get to this first meeting of the new board, and the board itself may not last. Cooper is locked in a third lawsuit with the General Assembly's Republican leadership over changes they made to the board shortly after he defeated then-Gov. Pat McCrory in 2016; courts have twice invalidated how lawmakers wanted members named.

Before Republicans reworked the board, its majority – and the majority of county-level boards that the state board names – were members of the sitting governor's party. The boards make decisions about early voting locations and times and election equipment.

Cooper agreed last week to appoint the state board so it could clear a backlog of work ahead of this year's elections -- primary elections are in May -- but he also promised to continue legal challenges against the new format.

Republicans have argued everyone should favor a bipartisan board, and state party Executive Director Dallas Woodhouse brought "bipartisan donuts" to Wednesday's first meeting. GOP members kicked off that meeting by asking for another week to consider potential nominees, with an online application process open statewide.

Democrats blocked that suggestion on a 4-4 tie vote, saying it was time to get on with the board's work and pointing to the law that created the new board and which laid out requirements for its first meeting. That law says the "sole purpose" of the board's first meeting must be selecting two nominees and that it must submit those names "promptly."

After voting against delay, Democrats nominated Cohen and Circosta. The vote was again 4-4, which meant the motion died. Republicans voted against, though two said they'd like to vote for Cohen and against Circosta.

Republicans then nominated just Mitchell, a move Chairman Andy Penry initially wouldn't allow, saying nominations had to include two names. After board attorney Josh Lawson said the law doesn't speak to this issue, Penry allowed the vote to go forward. The vote was again 4-4, with Democrats blocking Mitchell's lone nomination and Democratic member Joshua Malcolm promising only nominations including two names had a chance to pass.

Republicans then nominated Mitchell and Cohen together. That, too, went down 4-4. Democrats nominated Mitchell and Circosta together, which also failed 4-4.

After a 10-minute recess, during which Republicans and Democrats occasionally huddled, a Republican member asked to put all three names – Cohen, Circosta and Mitchell – into a hat and draw two.

"No sir," Penry said. "That is not allowed by the statute."

The meeting moved on without anyone challenging this, and Republicans agreed to reconsider a joint nomination for Mitchell and Circosta.

That passed unanimously.

Afterwards Cohen, who attended the meeting, predicted Cooper will appoint Circosta.

"I can't imagine that not being the result," he said. "Clearly, the governor had very strong opinions, and that didn't include me."

Cohen also said "various people" asked him to change his voter registration, but he did not name names. He'd been a registered Democrat, he said, since 1971.

Penry said the decision "had nothing to do with Gerry" and that the governor didn't ask him to make sure Circosta was among the nominees.

"I'm not familiar with anybody being asked to do so," Penry said.

After the meeting, Woodhouse accused Cooper of pushing the board toward failure, and he said he expects the state GOP to suggest a constitutional amendment to keep a bipartisan board of elections in place. That would require legislative approval, followed by a successful statewide voter referendum. If an amendment passes, Cooper could not challenge the change on constitutional grounds.