Clark survives residency challenge at state elections board

State Sen. Ben Clark, D-Hoke, survived an eligibility challenge that could have knocked him out of his re-election race a few days before the May 8 primary. But his credibility took some blows.

The Bipartisan State Board of Elections and Ethics Enforcement voted 7-1 Thursday, May 3, to uphold a three-member local election board decision favoring Clark. At issue is whether Clark’s primary residence is in Senate District 21 or at a second home outside the district.

“It went as expected,” Clark said as he exited the hearing with attorney John Wallace. He declined further comment.

“I was a little upset,” Spring Lake Mayor Pro Tem James O’Garra said after the hearing. He is considering whether to appeal the decision to the state Court of Appeals. He would have two days after the Election Board files its decision to act.

“This is getting expensive,” O’Garra said. “I don’t usually quit.”

O’Garra insists Clark and his wife live in Vander, just east of Fayetteville in Cumberland County, in Senate District 19. Clark has testified under oath his permanent residence is 32 miles away in Raeford, Hoke County, in District 21.

“I’ve got police officers who live out in Vander, and they tell me they see him out there all the time,” O’Garra said.

He supports Naveed Aziz, Clark’s primary opponent. His challenge is not related to her campaign, he said.

“I’m doing it for me,” O’Garra said. He’s upset Clark worked with Republicans to gerrymander the district.

State Elections Board Chairman Andy Penry acknowledged during the hearing that some board members might doubt Clark’s credibility. However, he said, the board is not a fact-finding body, and can’t take new evidence in a hearing. It can only rule on whether the lower board’s decision followed the law.

“We’re certainly not allowed to substitute our judgment of credibility for that of the board below,” which took testimony, received evidence, and had the opportunity to judge witness credibility, Penry said.

O’Garra’s attorney, John Austin, argued Clark’s attempt to gerrymander District 21 by placing an irregular wedge jutting five miles into District 19 showed his intent to absorb his Vander residence.

“We think this is district shopping,” Austin said.

The General Assembly’s Republican majority agreed to Clark’s gerrymander. But a special master threw out that revision in December, and the federal three-judge panel kept Clark’s Vander home in District 19.

Austin said a public records check determined Clark owned no residential property in Hoke County. He transferred his Raeford property rights to his father, even though the senator filed an affidavit claiming ownership in it.

“He would not even admit that he had deeded the property away. There’s a real credibility issue,” Austin said.

He also said Clark and his wife Dion both signed a deed of trust in February 2017, and borrowed money to purchase the Vander home. The transaction required them to say the Vander house would be their permanent residence for at least one year.

Clark testified in the election board hearing that as the co-borrower he didn’t fall under the residency requirement. The deed doesn’t state that, Austin said.

While Clark provided utility records to establish his Hoke County residency, all were dated after Feb. 28, Austin said. Since Clark didn’t produce any earlier bills at that address, before his gerrymandered district was invalidated, he may have been living in Cumberland County, and returned to Hoke County only to run for re-election, Austin said.

“Why has his wife not testified that she sleeps over in Cumberland County, and he sleeps in Hoke County?” Austin asked.

State elections board records show Dion Clark is registered as an unaffiliated voter in Hoke County. She voted in Guilford, Alamance, and Johnston counties from 2004-14. She cast ballots in Hoke County in two primaries and the general election in 2016.

Elections Board member John Lewis expressed skepticism about Clark’s residency claims.

“I’m looking at a deed of trust that very blatantly says, ‘I plan to live there as a primary residence,’ and he signed it. You can’t refute the fact his signature is there,” Lewis said.

Wallace said Clark was not aware of the residency requirement when he signed it.

He said Clark was surprised to learn that while he was in the Air Force, his father used the power of attorney Clark had given him to convey Clark’s half-ownership of the Raeford home to his parents.

Wallace also noted many North Carolina residents have more than one home, and split time between them.

The couple married in April 2015. Even if Clark’s wife stayed in the Cumberland County home, that does not mean it’s Clark’s primary residence, Wallace said. And Clark has steadfastly maintained he has never abandoned the Raeford home to live elsewhere.

Board member Ken Raymond, the lone dissenting vote, said Clark didn’t meet the burden of proof to establish his Hoke County residency.

But Lewis said placing the burden of proof on candidates is a flaw in the process.

It’s an injustice to candidates to defend against allegations, Lewis said. He thinks the General Assembly should correct the law.

Even so, he expressed concerns about some of the evidence against Clark. “The voters have the right to determine whether this is an issue that’s important to them,” Lewis said, and whether Clark should be re-elected.