The Bipartisan State Board of Elections and Ethics Enforcement approved appeals by two Republican primary candidates, reversing decisions by Clay and Mecklenburg county elections boards that had disqualified the candidates from running.
Some members at the April 4 meeting said their hands were tied by a state Supreme Court decision arising from Gov. Roy Cooper’s lawsuit to block Republican-backed legislation that reformulated the state board. Members debated statutory provisions and competing legal theories. All parties agreed they were in uncharted territory.
The state elections board also retained Sunday early voting in Gaston and New Hanover counties, and allowed it for the first time in Harnett County.
The state board approved appeals by Dwight Penland, a Republican primary candidate for the Clay County Board of Commissioners, and Nora Trotman, a GOP candidate in state Senate District 37. The decisions centered on a new state law that requires county election board rulings to get three-vote majorities.
The Clay County board voted 2-0 against Penland, with one board member abstaining. The MeckIenburg County board voted 2-1 against Trotman.
Local officials argued vehemently that the state board should ignore the new law and let them rule on evidence presented at county election board hearings.
State board attorney Josh Lawson urged members not to sidestep the new law. Lawson said a number of counties were in discord in the summer of 2017. Cooper’s separation-of-powers lawsuit challenging the new makeup of the state election board caused uncertainty. The law also expanded the county boards from three members to four.
The General Assembly and the governor’s office asked the Supreme Court to clarify the situation.
The Supreme Court temporarily allowed county boards to act even though none had four members. It also clarified that county boards must get three votes to constitute a binding majority decision. Lawson said county boards were notified of the changes.
During debate on Penland’s case, Republican state board member John Lewis said the vote had to follow the governing statute.
“If we took any other course of action we would be trying to create or carve out an exception in the law,” he said.
“We’d essentially be substituting our judgment for that of the Clay County Board of Elections, which is not authorized by case law or statute,” Republican board member Stacy Eggers said.
Don Wright, a Wake County attorney representing Clay County, asked the state board to uphold Penland’s disqualification.
“I will state that we lawfully met,” Wright said. “I would argue that it’s a valid order.”
The county board ruled that Penland didn’t live in the district, and wasn’t eligible to seek a seat on the County Commission. It noted he paid property taxes in Towns County, Georgia.
Penland, a former Clay County commissioner and Clay County school board member, is registered to vote in Clay County. He claims the Georgia-North Carolina border is ill-defined, and county tax officials refuse to swear to the accuracy of the maps they use.
The state board voted 6-3 to reverse the county board, restoring Penland to the ballot.
The board voted 5-4 along party lines to reverse the Mecklenburg board, reinstating Trotman. Unaffiliated board member Damon Circosta joined Republicans to form the majority vote.
The county board received two challenges to Trotman’s candidacy. The board alleged she had not registered as a Republican at least 90 days before filing for office, as required by law. The challenge further said Trotman did not submit her own filing papers. North Carolina Republican Party Executive Director Dallas Woodhouse turned in the paperwork.
Trotman claimed she was affiliated with the Republican Party for more than a year — satisfying the language of the state law. GOP officials provided documents supporting her, and said she was a dues-paying member of the Mecklenburg County Young Republicans.
The board disqualified Trotman, citing her decision not to appear or to send a representative to a hearing and argue she was a valid candidate.
State board Chairman Andy Penry pushed the notion that Trotman’s case differed from Penland’s because Trotman did not attend the county hearing.
Lewis said the county decision was invalid because it did not meet the three-vote requirement. The state board has an obligation to ensure the law is enforced equally, he said. If members veer from that principle, “then we get in the quagmire of why we did things differently in certain cases,” he said. “We create confusion, and we create inconsistencies. [It’s] the last thing we need to do.”
He questioned why some board members were treating Trotman’s appeal differently than Penland’s because Trotman had an even stronger case for reversing the county order.
On Sunday early voting, the board voted:
- 8-1 for hours from 1 p.m. to 5 p.m. April 29 at the Board of Elections site in Gaston County. Sunday early voting was used there in 2016.
- 5-4 along party lines, with Circosta joining Republicans, to open four satellite sites from 1 to 5 p.m. April 22 and 29 in Harnett County.
- 7-2 to open the Government Center from 11 a.m. to 6 p.m. April 29 in New Hanover County.