RALEIGH – What is a contested election?
Sounds like a simple question to answer, but there’s quite a bit of disagreement in Raleigh about the matter. The North Carolina constitution authorizes the General Assembly to decide the outcome of contested elections. Article VI, Section 5 states, "A contested election for any [executive] office ... shall be determined by joint ballot of both houses of the General Assembly in the manner prescribed by law."
During the Carteret-balloting controversy that kept Republican Steve Troxler from claiming his victory in the race for agriculture commissioner, Democratic Britt Cobb briefly floated the idea of kicking the issue to the General Assembly for resolution. So did Democrat June Atkinson, the top vote-getter in the race for state superintendent of public instruction.
But ruling on Republican superintendent candidate Bill Fletcher’s challenge to out-of-precinct provisional ballots, the North Carolina Supreme Court concluded that there was no statute currently in force authorizing the General Assembly to step in. There had once been legislative provisions for handling electoral disputes, but they were repealed in 1971. The only relevant law on the books, the Court found, was for resolving exact ties.
Sen. Dan Clodfelter, a Charlotte Democrat, has drafted a bill to address the issue. It passed the Judiciary Committee Tuesday and may be considered by the full Senate as early as Wednesday. Similar legislation has been introduced in the NC House.
Clodfelter is quoted by the Associated Press as saying that the state courts should never have gotten involved in the Atkinson-Fletcher race in the first place, and he apparently intends for the current legislation to apply retroactively to that dispute. Clodfelter is a skilled, thoughtful lawmaker. But he's overstating his case and overreacting to the situation. The Supreme Court had not only the right but the responsibility to rule on the two matters at hand: whether there were statutory or constitutional barriers to the use of out-of-precinct provisional ballots and whether a legal process existed for the General Assembly to resolve a contested election for state superintendent.
Obviously, the legislature cannot be viewed as the court of jurisdiction for any legal claim relating to an election that has been appealed from the State Board of Elections. That would be unprecedented, preposterous, and a violation of the separation of powers. Fletcher’s challenge (with which I disagreed, by the way) was not an invitation to "determine" a "contested election." It had to do with the legal and constitutional rules governing North Carolina elections. The legislature gets to make laws, and to submit constitutional amendments to the voters. It does not get to act as a court for interpreting these laws and applying them to individual disputes.
What the legislature can do, and should do, is establish for the future a sensible process for resolving races frought with mistakes, lost votes, corruption, or other irreparable flaws, so as to keep them from frustrating the process of electing executives. Since no such process existed before the 2004 elections, lawmakers can’t pretend there was one. The check on such a power is, in the end, the will of voters in the next legislative elections. But this power is not the same as, a substitute for, or a supplanting of the judiciary’s role in adjudicating specific disputes regarding election laws.
Take the time to get this one right, ladies and gentlemen.
Hood is president of the John Locke Foundation and publisher of Carolina Journal.