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The N.C. Court of Appeals should block a new Clayton
Town Council election with all of the five original
candidates on the ballot because it would be “an absurd
result,” the Attorney General’s Office said in a brief filed
on behalf of the State Board of Elections earlier this
month.
“The voters made clear their preference in the initial
election, and it makes no sense to allow even those
candidates whose elections were unaffected by
irregularities to participate in the new election,” said the
brief, filed on March 7 by Attorney General Roy Cooper.
The state board agrees with a Wake County Superior Court
judge’s decision that there should be a new election to
determine who should fill the two Town Council seats that
were up for grabs on Nov. 6. However, the board believes
that only the top three finishers in the original election –
Councilman Alex Harding and challengers Art Holder and
Butch Lawter – should be on the ballot.
Errors at two Clayton precincts cast doubt on the outcome
of the original election, in which Harding, Holder and
Lawter were separated by a total of 14 votes.
Opposing the board in its appeal is Councilman Alex
Atchison, who finished a distant fourth in the Nov. 6
election and appealed the election board’s order in
December to exclude him from a revote and certify the re-
election of Harding.
The board’s decision was overturned last month by Wake
County Superior Court Judge Robert Hobgood, who ruled
in favor of Atchison and ordered a new election with all of
the original candidates on the ballot.
Prior to Hobgood’s ruling, the county Board of Elections
had a scheduled a Feb. 19 runoff between Holder and
Lawter to determine the winner of the second seat. That
race was effectively canceled when Hobgood issued his
decision.
Atchison’s attorneys have argued that the state board has
misinterpreted “the plain meaning” of a section of the
statute outlining the board’s authority to limit new
elections to a subset of the original candidates.
At issue is the meaning of the phrase “leading vote
getters.” The law stipulates that the state board may order
a new election among only some of the original
candidates “if the election is for a multiseat office” – as is
the case with the disputed Town Council election – “and
the irregularities could not have affected the election of
one or more of the leading vote getters.”
The irregularities in the Clayton election could have
affected the top three vote getters, since there were 20
wrongly cast ballots, and only 14 votes separated Harding,
Holder and Lawter.
But the state board argues that Atchison also qualifies as
a “leading vote getter,” because he finished ahead of last-
place Mike Starks. And since the irregularities could not
have caused Atchison to fall short of winning one of the
two open seats, the statute allows the state board to call
for a new election with fewer than the original five
candidates on the ballot.
Atchison’s attorneys contend that the state board has
settled on an odd definition of “leading vote getters.”
“The natural, ordinary meaning of ‘leading vote getters’ in
the context of a multi-seat election is those candidates
who were foremost contenders for the open seats to be
elected,” Atchison’s attorneys state in a brief filed with the
Court of Appeals on March 17. “In a two-seat race such as
for Clayton Town Council, the leading vote getters would
be the candidates who came in first and second in the
original election.”
According to that reasoning, the leading vote getters in
the original race both could have been affected by the
irregularities, so a new election would have to include all
of the original candidates.
But the state board’s brief argues that Atchison’s position
leads to “an absurd result … where a leading vote getter
[Atchison] whose election could not have been affected by
the irregularities could compel a new election and a
chance to win a seat in a multiseat race even though it
was not possible for him … to have won the initial
election.”
Atchison’s attorneys counter in their brief that the law
should be understood as offering the board a way to
excuse clear winners from having to participate in revotes,
but, absent a clear winner or winners in the original race,
the board must do what it can to reproduce the dynamic
of the original election.
Lawmakers, Atchison’s attorneys state, “can seek to make
the new election as much like the first election in ways it
can control, including the ballot of candidates who will be
allowed to participate.”
The appeals court has yet to schedule a hearing in the
case. John Connell, clerk of the court, said Monday that
the case probably won’t be heard until at least mid-May.
The court has a summer recess beginning in mid-June
that lasts until late August.
It usually takes the court about 30 days to issue a ruling
after hearing a case.
After the court rules, the county election board will set a
date for a new election. At least 55 days must pass from
the time of the court order to the date of the new election.
Consequently, a new election for the two council seats
probably can’t be held any earlier than mid-August.
Atchison and Harding, whose seats were up for election,
will serve extended terms until a new election is held and
the winners are sworn in.
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