- A legal battle over Pembroke's 2023 mayoral race reached the North Carolina Court of Appeals Tuesday.
- State election officials say challenger Allen Dial defeated incumbent Gregory Cummings by 19 votes, but court orders have allowed Cummings to remain in office as he disputes election results.
- Cummings seeks a new election or a court order forcing the State Board of Elections to hear new evidence in his challenge to the 2023 election result.
A two-year dispute over the 2023 Pembroke mayor’s race reached the North Carolina Court of Appeals Tuesday.
Incumbent Mayor Gregory Cummings has continued to serve in office since the election, even though state election officials say Cummings lost to challenger Allen Dial by 19 votes.
Cummings raised questions about 16 voters who cast ballots in the election. He also questioned other irregularities in his latest race against Dial. The two have faced each other multiple times. Their 2015 mayoral race produced results later overturned by elections officials.
Cummings is asking state courts either to order a new election or to force the State Board of Elections to consider new evidence in his challenge to the 2023 contest’s results.
The election carries a “cloud of suspicion,” argued Jonathan Charleston, Cummings’ lawyer.
“The public has an expectation that elections will be free and fundamentally fair and free of any bias,” Charleston said. “In this case, it’s not there.”
None of Cummings’ complaints would impact the outcome of the 2023 election, answered Special Deputy Attorney General Mary Lucasse, representing the state elections board.
“Petitioner claimed 16 people voted who were ineligible to vote,” Lucasse said. “It’s uncontested that Mr. Dial won the mayoral election by 19 votes.”
“In order to have a new election, it’s important that you show that the things you are complaining about — if true — would have made a difference, and that’s not the case here,” Lucasse added.
“Getting a new election is a really, really extreme situation,” she said. “It’s a grave remedy not lightly employed.”
Judge Donna Stroud asked multiple questions about Cummings’ allegations involving the challenged voters. Some lived on Dial’s commercial properties. The candidate helped them register to vote. Dial’s family members notarized documents they submitted in connection with the legal battle.
“It sounds kind of crazy,” Stroud said.
“Let’s say you’re a person and you own some properties … and there are some people who are in nontraditional housing who live generally in the area, a good strategy to win an election would be to get the people registered to vote and give them your mailing address as their address, and then offer them transport to the polls at the time of the election,” Stroud added. “That’s OK under existing state law?”
“Is this OK? That’s an important question,” responded Elliot Abrams, Dial’s lawyer. “What we see is we have statutes, and those statutes have not been broken in any way.”
Abrams cautioned the court against responding to Cummings’ use of the term “cloud of suspicion,” which emerged from a precedent case in another part of the state involving evidence of widespread vote-buying.
“As we talk about cloud of suspicion, what we’re doing if we set that bar low is we create a process in which we don’t have finality in elections,” Abrams argued. “And so I think what we need to do is stick with the statute … that talks about irregularities that may have changed the result of the election.”
Cummings’ lawyer placed the number of challenged voters in context. “Nineteen votes out of the total cast is 5%. That’s material,” Charleston said.
Stroud and fellows Appeals Court Judges Fred Gore and Julee Flood will decide the case’s outcome. All are Republicans.
Cummings is considered the petitioner at the Appeals Court. Dial is an intervenor.
“The Superior Court below denied Petitioner’s petition for judicial review and affirmed the State Board’s decision denying Petitioner’s protest appeal,” state Justice Department lawyers wrote in October while defending the elections board’s decision to uphold Dial’s election victory.
“As the procedural history demonstrates, this protest has a long history in which it was remanded by consent from the Superior Court back to the county board to give Petitioner an opportunity to present his evidence before coming back through multiple appeals to where it is today,” the court filing continued. “Despite being given this opportunity to marshal his evidence many months after the election itself, the protest has been dismissed or denied at each stage because Petitioner has failed to show substantial evidence of a violation of election law or other irregularity or misconduct.”
“The most recent denial came from the Superior Court sitting in an appellate capacity,” the elections board’s lawyers wrote. “The Superior Court thoroughly reviewed the whole record, including all analysis, findings, and conclusions in the State Board’s final decision. It concluded that Petitioner’s request for additional evidence should be denied and affirmed that the State Board’s Final Decision contained no error.”
“Now, Petitioner brings many of these same arguments to this Court. He argues that the Superior Court’s order should be reversed because it did not sufficiently address those meritless arguments, it did not order a new election, and it did not grant his motion for additional evidence,” the court filing added. “A review of the whole record reveals no error, either from the Superior Court or the State Board in the decisions below.”
An all-Republican three-judge appellate panel issued an order in April effectively blocking certification of the 2023 mayor’s race. Flood and Judges Michael Stading and Thomas Murry granted Cummings’ request for a writ of supersedeas.
The writ blocked a lower court order that would have allowed election officials to certify Dial as the election’s winner. Dial is a registered Democrat. Cummings is unaffiliated.
The challenger Dial leads the incumbent Cummings by 19 votes (197 to 178), according to State Board of Elections records of the November 2023 contest.
“Petitioner has not identified any errors of law” in a March 17 trial court order affirming the elections board’s ruling against Cummings, Dial’s lawyer wrote last spring.
“Notably, Petitioner did not challenge the findings of fact from the Robeson County Board of Elections order in his appeal to the North Carolina Board of Elections or his appeal to the Wake County Superior Court in this matter,” Dial’s court filing continued.
“In those findings of fact, the Robeson County Board of Elections found that there was evidence of only one voter who was ineligible to vote in the Town of Pembroke mayoral election. Intervenor was the witness who testified to that fact during the hearing,” Dial’s lawyer wrote.
“Most importantly, the Robeson County Board of Elections found as facts that Petitioner had no direct knowledge that any of the challenged voters lived outside the Town of Pembroke less than 30 days before the mayoral election, and that Petitioner offered no evidence that any of the challenged voters were in some other way ineligible to vote in the mayoral election,” the court filing added.
“Intervenor has been deprived of the opportunity to govern as he was elected to do,” the court filing continued. That included the “mayoral compensation package” estimated at $26,000 a year.
“Intervenor asserts that the ‘status quo’ as it relates to this case is that Intervenor was elected appropriately and therefore should have assumed office,” Dial’s lawyer wrote. “Petitioner’s election protest and subsequent appeals prevented that from occurring.”
Cummings offered a competing argument to appellate judges.
“Robeson County has a history of voting irregularities,” Cummings’ lawyers wrote. Dial “was a candidate in 2013 and 2015 elections that were overturned as a result of voter misconduct.”
Cummings has been fighting the election result since filing an official protest 15 days after Election Day. Dial intervened in the court proceedings in May 2024.
The Robeson County election board reviewed the dispute in July 2024. “Testimony was given during the County Board hearing that certain voters in the Mayoral Election listed their residential address as an abandoned lot owned by Intervenor,” Cummings’ lawyers wrote. “Voters associated with Intervenor’s lot all registered to vote on 13 October 2023. Another voter listed her residential address as a restaurant owned by Intervenor. Other voters listed their residential addresses as housing that could not be verified as their residences.”
Dial said he helped people living in a tent community register to vote, according to local media reports about the local elections board hearing.
The Robeson elections board ultimately dismissed Cummings’ appeal on July 15, 2024. The state board followed suit in September 2024.
Cummings accused the county and state elections boards of acting “arbitrarily and capriciously.”
Cummings and Dial have faced each other multiple times in Pembroke mayor’s races. The state ordered a new election after their 2015 contest because of Cummings’ concerns about voting irregularities.
