RALEIGH – Republicans in North Carolina now have an opportunity to uphold principle over political expediency.
For months now, they have complained bitterly – and properly – about the effects of a vote-counting fiasco in Carteret County that left some 4,400 legal voters without the opportunity to register their preferences in the contested statewide elections for agriculture commissioner and state superintendent of public instruction.
Look at the margin of victory for GOP nominee Steve Troxler over Democrat Britt Cobb, they said, and at the fact that the bulk of the 4,400 Carteret votes that failed to register on computers there were cast by Republicans. There was virtually no chance that Cobb was the preference of a majority of voters on Election Day who did what they were told, followed official procedures, and then were disenfranchised through no fault of their own.
Thus when the Democratic majority on the NC Board of Elections offered to remedy the situation by holding a new statewide election, Republicans fumed. This was an unconscionable attempt to deny the public will, they said. It was an attempt to stage a costly and unnecessary “do-over” in a political contest simply because Democrats had lost it.
Fortunately, no such remedy was ever ordered according to state law. And on Friday, Cobb finally recovered his senses and did the right thing by conceding the race to Troxler, who was certified as North Carolina’s first Republican commissioner of agriculture and third Republican on the Council of State.
Later on Friday, however, something else happened. The NC Supreme Court released its ruling on a parallel dispute over the counting of provisional ballots. Republican Bill Fletcher, who according to the official count trailed Democrat June Atkinson by 8,535 votes in the statewide race for school superintendent, challenged the legality of counting thousands of provisional ballots cast by voters outside their assigned precincts on Election Day. His lawsuit – in which two Republican candidates for county commission, Trudy Wade of Guilford and Bill James of Mecklenburg, joined in – argued that state election officials had ignored state statutes and the state constitution’s language in devising and enforcing this policy.
By a 5-0 vote, the participating justices on the Supreme Court ruled that about 11,310 provisional ballots were, indeed, cast illegally and cannot be counted. Interestingly, the justices – all Republicans – based their ruling on interpretations of relevant statutes, not on the state constitution’s language concerning having to reside “in the precinct, ward, or other election district” in order to cast a legal vote. Since interpreting this language to forbid out-of-precinct provisional voting would also seem to endanger the far-more-widespread use of early and absentee voting, my guess is that the Court was trying to limit the scope of its ruling and perhaps to signal ways of remedying the immediate problem without affecting far larger numbers of voters.
Naturally, Republicans were jubilant about the ruling. Some argued that throwing out the presumably heavily Democratic provisional ballots and then re-certifying the results might reverse the superintendent outcome as well as local races in Mecklenburg, Guilford, and elsewhere. Others argued that new elections were called for, giving the GOP candidates another chance to prevail.
But neither 1) throwing out the ballots and certifying nor 2) ordering a new election is at all consistent with the earlier GOP arguments about the Troxler race. Remember, we know who the 11,310 voters are! They cast provisional ballots, which means that their names had to be attached so local elections officials could find their registrations and determine for which local offices they were permitted to vote.
These voters were legally qualified to vote in the relevant races, in the sense that they did live in the correct precinct, though according to the Court they handed in their ballots in the wrong one. They did not screw up their own ballots (think Florida) or attempt to break the rules as told to them by elections officials before and on Election Day. They followed the rules as they understood them. According to the Supreme Court, it was the officials who erred, by misinterpreting the legislative intent behind relevant statutes and thus by not informing the voters in question that they needed to go to a different polling place to cast their ballots.
Legally, how is this case conceptually distinguishable from the Carteret situation, where voters followed the rules as promulgated ahead of time but failed to have their preferences registered because of the errors of local officials in running their computer-voting system? Practically, how is a list of 11,310 voters statewide appreciably different from a list of 4,400 voters in Carteret if the remedy is to solicit affidavits from them regarding their electoral intentions, or to invite only them back to the polls to “complete the voting process”?
It seems clear to me that the proper remedy now is to correct the errors of elections officials by giving those 11,310 voters the correct instructions and allow them to complete their votes in their precincts, letting the electoral chips fall where they may. Any objections?
Hood is president of the John Locke Foundation and publisher of Carolina Journal.