RALEIGH – Until the medical advances of the early 20th century – many of them the perverse consequence of the carnage of World War I – the prospect of entering a hospital was not an inviting one. There were few effective treatments or drugs for most diseases or injuries, and a patient was often more likely to catch a new, life-threatening illness than he was to be cured of his preexisting one.
Such concerns apparently led to the saying that “the cure is worse than the disease.” Nowadays, of course, this isn’t really true anymore. Medical care is several orders of magnitude more effective than it was a century ago – one reason why health expenditures have been rapidly rising in recent decades is that they should be, because medical care is more valuable. But the idea of a cure worse than the disease remains an important concept in a host of other contexts.
Politics is one of them. Just because a problem exists does not mean that an immediate or obvious response is worth pursuing. I think this is the case with regard to post-election controversies involving vote-counting irregularities and the outcome of two statewide contests.
The first involves a glitch – some say in the computer, others say in the attention span of election workers – that led to the loss of some 4,400 votes in Carteret County. Because the statewide margin of Republican Steve Troxler’s apparent win over Democrat Britt Cobb for commissioner of agriculture is only 2,300 votes, it is theoretically possible that Cobb may have lost the race because of the lost ballots in Carteret (plus another 120 ballots in Cleveland County that were mislaid and later discarded before being tallied). It’s actually not likely that Cobb’s loss is due to these developments, since the lost votes would have to favor Cobb over Troxler in totally different proportion to the way the rest of the ballots went in the jurisdictions (most of those in Carteret whose votes were lost are registered Republicans). But it is theoretically possible.
As I understand it, election officials know which Carteret voters didn’t get their ballots counted. So it might not seem to be any big deal to resolve the issue: just ask the injured voters to come in and cast ballots again. But it’s not that simple, some say. They argue that state law governing this situation requires that any revote must be held “in the entire jurisdiction in which the original election was held.” Given that the agriculture commissioner race is statewide, one interpretation of the law is that the only remedy available is a statewide revote, to be held in February and costing more than $3 million.
If this is the correct interpretation – another might be that Carteret County’s vote for agriculture commissioner is at issue, and thus the revote jurisdiction should be the county – then I think it is obvious that the cure would be worse than the disease. No way is it worth $3 million in tax money to test the hypothesis that Republicans in Carteret tend to like Democratic agriculture commissioners. If the only remedy the law allows for an identified vote-counting error in one or two counties is a costly statewide do-over, then the law is, as they say, an ass. Four of the five members of the state board of elections would have to approve. One hopes they have sense enough not to – and Cobb has sense enough not to ask them to.
A similar issue exists in a different case where Democrats were the apparent victors in Election Day. This has to do with the status of provisional ballots cast by voters in precincts other than the one in which they reside. Bill Fletcher, the Republican nominee for state superintendent of public instruction, trails Democrat June Atkinson by about 8,500 votes statewide. Obviously, a revote in Carteret would not be sufficient to change the outcome, even if Fletcher got most of the new votes. But there are an estimated 10,000 cases statewide in which voters cast provisional ballots outside their precincts and then all or some of their votes (depending on whether they lived in appropriate districts) were counted anyway.
Fletcher, Mecklenburg county commissioner Bill James, and others argue that the state law governing the counting of these provisional ballots runs afoul of the state constitution, which in Article 6, Section 2 requires that voters cast their ballots in their own precincts unless they have moved within 30 days of the election (in which case they can cast provisional ballots in their old precincts for convenience). Fletcher and Co. may have an argument that out-of-precinct voting imposes an undue burden on election officials. They may also be right that it conflicts with the state constitution, though there are varying interpretations of the provision and the Fletcher argument, if correct, would seem to invalidate all early voting in the state, too, since that also didn’t occur within electoral precincts (I live in Southern Wake County, for example, but voted in downtown Raleigh.)
The problem is fashioning an appropriate remedy at this point. Perhaps legislators should change the law back to the way it was. Perhaps the courts should strike it down. But throwing out the votes of 10,000 North Carolinians (or many more, if early voting is implicated) who were following state law at the time of the election and who are legally registered in their counties would be unconscionable. This is not a case of confused voters not following instructions or misunderstanding a butterfly ballot. These were voters obeying the rules as stipulated ahead of time.
It would be best to leave 2004’s electoral patients outside the hospital.
Hood is president of the John Locke Foundation and publisher of Carolina Journal.