A little more than a week after issuing a ruling and then reversing her decision, an administrative law judge has ruled once again that the North Carolina State Board of Elections violated its own rules and must conduct a new hearing into local elections board members.
The 15-page opinion from Administrative Law Judge Linda F. Nelson was released on Feb. 24. She originally gave the same ruling on Feb. 12, but struck it on Feb.13 to be retroactive to Feb. 12, removing it from the docket.
Steve Holland of Weaverville and Michael Frazier of Salisbury filed a complaint against the elections board. Holland and Frazier alleged that seven Wake and Rowan County boards of elections members failed to follow a state board directive requiring the removal of early votes cast by individuals who died before Election Day, Nov. 8, 2024.
Both Frazier and Holland requested hearings on Nov. 21 and Dec. 4, 2024, on whether certain county election board commissioners breached their duties under Chapter 163 of the North Carolina General Statutes or participated “in irregularities, incapacity or incompetency to discharge the duties of office.”
Numbered Memorandum 2022-05, as revised Dec. 15, 2023, directs county election boards to remove ballots cast by voters who voted early in person or by absentee ballot and died before the day of the election.
Numbered memoranda are directives of the state board, including the Resolution on State Board Delegation of Authority to Issue Directives to County Boards, adopted by the State Board on Nov. 28, 2023.
The state board voted 3–2 along party lines in January 2025 not to hold one. At that time, the board included Democratic members Alan Hirsch, Jeff Carmon, and Siobhan Millen; and Republican members Stacey “Four” Eggers and Kevin Lewis.
The present board, named in May by state Auditor Dave Boliek, includes Carmon, Millen, and Eggers, along with Francis De Luca and Robert Rucho.
Holland and Frazier subsequently filed a contested case petition with the Office of Administrative Hearings, challenging what they described as an unlawful decision.
Nelson concluded in her ruling that the state board “erred as a matter of law in determining that the Request[s] for Hearing did not establish a prima facie case,” and ordered the board to hold hearings to determine whether Wake County Board Members Gerry Cohen and Erica Porter, who has since resigned, and Rowan County Board Members Catrelia Hunter and Kenneth Stutts, should be removed from office since they allegedly improperly voted not to remove challenged ballots cast by voters who voted early in person or by absentee ballot and died before Election Day, resulting in these votes being counted.
A prima facie case is established where facts are alleged that, if true, support each element of the charged offense.
State law requires separate hearings in each affected county. Wake County board member Greg Flynn and Rowan County board members John Hudson and Loutricia Cain — whose terms expired in June 2024 — were also subjects of the complaints. Flynn was reappointed to fill Porter’s position. The hearings are expected to address the alleged violations involving those members as well.
“It’s imperative that the State Board schedule these hearings promptly, rather than pursue an appeal,” Holland said in a press release. “With preparations for the November General Election just weeks away, residents in these counties deserve to know whether members of their Boards of Elections are fit to oversee the process. With the changes in the State Board’s composition last June, I’m optimistic they’ll now do the right thing. It’s vital that the State Board restore public confidence in its processes. They must also compel County Boards to observe the requirements of election law — or face the consequences.”
The press release stated that before filing their case, Holland and Frazier made multiple attempts to resolve the issue informally, but the state board failed to engage in required settlement discussions.
“As Board Member Eggers stated when the State Board considered this matter last year, it’s an equal protection issue,” Holland told CJ in an emailed statement earlier this month. “Therefore, the State Board should not sweep this under the rug; it needs a full hearing.”
The North Carolina Attorney General’s Office, representing the state board, sought to dismiss the case last summer on procedural grounds. Judge Nelson rejected all three dismissal arguments, allowing the case to proceed. Holland and Frazier represented themselves pro se.
“This outcome reaffirms that the State Board is accountable under the law, just like the voters they serve,” Frazier said in the release. “Rules must be applied consistently and transparently to preserve the integrity of North Carolina’s election system, and the State Board should set an example for counties.”
The press release states that in a similar case in 2023, the state board removed two Surry County election board members for violating their oath of office after they refused to certify their local elections. The board found that the actions of the two county board members not to certify recent elections and statements made by them violated their duties as county board members to comply with laws as they exist.
Jason Tyson, spokesman for the NCSBE, told Carolina Journal on Thursday that the board’s attorneys are currently reviewing the ruling and deciding their next steps.