John Hood's Syndicated Weekly Column
RALEIGH – Is North Carolina the electoral equivalent of a banana republic? That’s what Sen. Ham Horton, a Winston-Salem Republican, thinks may become a widespread perception if an elections bill already passed by the North Carolina Senate gets approval by the House and Gov. Mike Easley.
Politicos have been alternately mesmerized and horrified by two lingering controversies from the November elections. In one case, Republican Steve Troxler got more votes that Democrat Britt Cobb for agriculture commissioner, but 4,400 uncounted votes in Carteret County led to prolonged legal wrangling before Cobb conceded the race in early February.
The other controversy simmered for months while the Troxler-Cobb imbroglio blazed, but the former contained more potential for legal mischief. That potential started becoming reality the same day that Cobb conceded to Troxler: the NC Supreme Court, responding to a challenge by three Republican candidates, ruled that provisional ballots cast by voters outside their home precincts could not be counted.
Bill Fletcher, the GOP nominee for state school superintendent, trails Democrat June Atkinson by 8,535 votes. Even if all the lost votes in Carteret were from Fletcher supporters, he couldn’t win. But there are at least another 11,310 provisional ballots cast out of precinct, most cast by Democrats.
Citing state constitutional language, Fletcher and two local candidates argued that such ballots shouldn’t be accepted. In response, Atkinson’s attorneys made their own constitutional claim: that courts had no jurisdiction over the issue. 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.” A separate provision provides that each legislative chamber “shall be judge of the qualifications and elections of its own members,” clearly intended to keep the Senate from trying to block duly elected House members from taking office, or vice versa.
Neither Fletcher nor Atkinson actually won a constitutional claim. In Fletcher’s case, the Court sidestepped it. It confined its decision to existing statutes, finding that they did not specifically authorize officials to count the out-of-precinct votes. So Fletcher and the other Republicans got the result they were after, but via a means that the General Assembly is apparently free to change for future elections (and is in the midst of doing so).
On Atkinson’s claim, the Court also declined to speak broadly on the constitutional principle. Instead, it noted that while the legislature does enjoy the constitutional authority to enact laws for settling contested elections, it had not done so – except in the case of a tie vote. That controlling statute also contains a restatement of the Article V language. But it doesn’t define “contested election,” and it sets up no process to conduct hearings or hold a vote. The legislature could have set up a process, and can do so for the future, the Court said, but Atkinson has no such recourse now.
There are debatable aspects to both of the Supreme Court’s rulings (I don’t agree with regard to out-of-precinct ballots). Unfortunately, Democrats angry about what they perceive as judicial usurpation seem dead-set on a retaliation that could provoke a constitutional crisis.
The legislation Sen. Horton is complaining about is a gross and dangerous overreaction. It appears to make the General Assembly the court of jurisdiction for any legal challenge to an election, cutting the state courts completely out– which is an overly broad definition of “contested election.” Surely the term should refer to cases, such as major election-law violations or equipment malfunctions, where the only reasonable means of reaching finality is legislative action.
What’s worse, the bill seeks to apply the new rules retroactively to the Atkinson-Fletcher dispute (which should be a no-no) and to legislative as well as executive-branch elections, even though the state constitution does not grant the General Assembly the authority essentially to pick its own members whenever any election law or procedure is challenged. That is, again, an overly broad and dangerous reading of legislative power.
The state constitution forbids the legislature from stripping the courts of their rightful jurisdiction, and requires that appeals from administrative agencies with quasi-judicial power, such as the State Board of Elections, must be made to the judicial branch, not the legislature.
Yes, the General Assembly retains the constitutional prerogative to come up with a sensible process for picking winners in contested elections, a role judges shouldn’t have. But such a process should define “contested elections” carefully and narrowly. Right now, legislative leaders are in effect declaring war on the state’s judiciary and the constitutional separation and balance of powers. The aftermath won’t be pretty.
Hood is president of the John Locke Foundation, publisher of Carolina Journal.com, and host of the statewide program “Carolina Journal Radio.”