Each county in North Carolina has a board of elections, funded by its county commission. How much leeway do these elections boards have to spend the funds allocated to them, including how many people to hire? And more generally, do local boards of election have the authority to sue and be sued?

The state’s second highest court recently ruled in favor of the local boards, deciding a funding dispute from Graham County.

During a September 2009 meeting, the Graham County Board of Commissioners voted to eliminate one of two full-time positions at the Graham County Board of Elections, leaving it with just one full-time position (the director of elections) and one part-time position. The Board of Elections, however, hired a second part-time employee. The county commission refused to pay Angela Orr, the second part-time employee, even though the Board of Elections had enough money in its budget to fund the position through the remainder of the fiscal year.

The elections board went to court seeking a writ of mandamus to compel the county commission to pay Orr. On Dec. 14, 2009, Superior Court Judge James Baker ruled in favor of the election board, ordering the county to pay Orr and also $5,035.50 of the election board’s attorney fees.

The county commission appealed the ruling, contending that the Board of Elections lacked the legal authority to seek a writ of mandamus or otherwise sue or be sued. Specifically, the commission argued that the board of elections could not sue because it is nothing more than a subdivision of the county.

State law requires each county to have a three-member board of elections, which the local county commission is required to fund adequately. The State Board of Elections, however, appoints members to county boards of election. It also has the authority to remove members or the local director of elections it selects.

Local governments in North Carolina have only as much authority as the General Assembly gives them. No state law explicitly provides local boards of election with the authority to sue or be sued. However, N.C. General Statue § 163-25 authorizes the State Board of Elections to “assist any county or municipal board of elections in any matter in which litigation is contemplated or has been initiated” (emphasis added).

“If the State Board of Elections can assist a county board in ongoing litigation, county boards of elections must have the ability to sue and be sued,” wrote Judge Robert N. Hunter Jr. for the appeals court, in holding that the board of elections had the authority to sue.

“Otherwise, they would not require the assistance of the State Board of Elections with respect to litigation that ‘has been initiated.’

The county also argued that it, and not the board of elections, has the legal authority to determine the number of employees the elections board can hire.

Again, the Court of Appeals disagreed. While the appeals court found that all elections board personnel did indeed qualify as county employees, it also held that this was not the key factor.

N.C. General Statute § 163-32 states that county boards of elections shall pay their employees “such compensation as it shall fix within budget appropriations” while § 163-33(10) states that elections boards have the power “[t]o appoint and remove the board’s clerk, assistant clerks, and other employees.”

“We conclude that, so long as a county board of elections remains within the budget allocated by the local board of county commissioners, the county board of elections has the sole authority to hire and fire elections employees,” wrote Hunter.

“This authority provides the clear legal right required for mandamus. Here, it is uncontested that there were sufficient funds in the budget to pay Ms. Orr. Consequently, the Board of Commissioners was dutybound to disburse funds to pay Ms. Orr. This duty is purely ministerial — there is no discretion involved.”

The case is Graham County Board Of Elections v. Graham County Board of Commissioners, (10-653).

Michael Lowrey is an associate editor of Carolina Journal.