RALEIGH – Here’s why I am so sure that Republican Bill Fletcher is ultimately going to lose his legal efforts to overtake Democrat June Atkinson in the race for state superintendent of public instruction.
At its core, Fletcher’s argument – which began in the state courts and has now reached a special committee of the state legislature – is that tens of thousands of North Carolina voters who did what they were told by elections officials, who followed the rules as they understood them, should have their votes thrown out.
I just don’t think this argument will, in the end, prevail. It is contrary to basic fairness.
The issue is the status of provisional ballots. After the General Assembly enacted a bill in 2003 to clarify the use of provisionals, officials from the State Board of Elections interpreted the law as allowing voters who showed up on Election Day at the wrong precinct to cast a ballot anyway. The rule was that each provisional ballot would be checked against the county’s voter rolls. For every contest the voter was entitled to participate in, his or her vote would count. Obviously, if the voter showed up in District 44 but lived in District 45, a vote for a District 44 candidate would not be counted.
In my mind, it really doesn’t matter whether this interpretation was correct, though I do believe that it fairly reflects the intention of most legislators when they voted for the 2003 law. What is more significant is that this was the way the statute was interpreted by North Carolina elections officials, and their interpretation was as far as I know not publicly challenged before the November 2004 balloting. Thus it was broadly understood to be the law, and voters and elections officials acted accordingly.
It also doesn’t matter what the law on provisional ballots should be. Here I am somewhat conflicted. Some credible sources tell me that the state needs to enforce more strictly the precinct system. They believe that it allows officials to deploy elections workers more rationally around each county to reduce waiting times and avoid confusion. They also think it is the best way to deter voter fraud. But other credible sources say that the precinct system is a relic, that it fails to recognize the changes in information and voting technology of the past two decades. After all, many North Carolinians routinely vote at locations other than their home precincts through no-excuse absentee and early voting. I haven’t been to my own precinct’s polling place in years.
The point is that debating what the rules ought to be on provisional ballots has little to do with the appropriate remedy in the Atkinson-Fletcher dispute. Perhaps the rules should be more restrictive. But on Election Day, they unambiguously allowed voters to cast out-of-precinct provisional ballots. Atkinson is the duly elected state superintendent of public instruction.
Hood is president of the John Locke Foundation.