A recent North Carolina court ruling might mean the end is near for a two-year legal battle over a Robeson County mayoral election.
But one state Appeals Court judge hopes the case sparks new action on an issue that could crop up in future electoral contests.
Judge Donna Stroud and two colleagues ruled unanimously on March 4 against incumbent Pembroke Mayor Gregory Cummings.
Final vote totals in the 2023 mayoral race showed the Republican Cummings losing to challenger Allen Dial, a Democrat, by 19 votes. But Cummings challenged the result, first with the State Board of Elections and then in North Carolina’s courts. He has continued to serve as mayor throughout the legal dispute.
Cummings identified 16 voters in the 2023 race who listed commercial properties owned by Dial as their home addresses. Elections board proceedings revealed that Dial allowed these otherwise homeless voters to live on his property. Dial and family members also helped the voters with mail and transportation.
Irregularities in a 2015 electoral clash between Cummings and Dial had prompted election officials to order a new election. Cummings sought a similar outcome this time.
But the all-Republican Appeals Court panel determined that Cummings had not identified enough questionable voters to alter the election’s outcome. Barring a successful appeal to North Carolina’s Supreme Court, the elections board will likely declare Dial the winner. He would serve the rest of the disputed mayoral term.
Stroud “fully” supported the case’s result. Yet she wrote a concurring opinion “regarding my concern that this case may end up being a user’s guide on how to enlist people in non-traditional housing as voters to help you win your election.”
When dealing with “transient living circumstances,” Stroud explained, “challenging a voter’s registered domicile after an election may prove to be a practical impossibility.”
“This same problem could exist for any voter with non-traditional housing, but here the direct involvement of the candidate [Dial] adds another layer of concern,” Stroud wrote.
“Allowing a candidate to register voters who live — at least sometimes — rent free on his own commercial property, and allowing the candidate to serve as their mail conduit, and then to take them to vote, raises at least an appearance of serious questions about the election’s fairness,” the concurring opinion added.
“True, he didn’t directly pay them for their votes or tell them how to vote, but did he really need to?” Stroud asked. “‘[A]t least 16 voters’ may not sound like a big deal, but this was an election won by 19 votes. This small number does not mean these alleged irregularities are unimportant for the entire State.”
The dispute between Cummings and Dial affects just one town. The legal issues extend statewide.
“This case shows the current statute and rules allowing registration in this manner, with no meaningful way to confirm a voter’s address or domicile after an election, opens the door wide to mischief in our elections,” Stroud warned.
“The result of this election might not change, thanks to the three-vote margin, but it still demonstrates a potentially effective but questionable tactic for future elections,” she wrote.
“Our election laws must accommodate the rights of voters who lack traditional housing, but these laws should at least attempt to prevent a candidate — or anyone working for a candidate — from taking advantage of the unfortunate circumstances of these voters to win an election,” the concurrence continued.
“Sadly, this case may support and encourage candidates to recruit and register voters lacking traditional housing to use both a physical address and a mailing address owned or provided by the candidate or his associates,” Stroud warned. “In small elections like this one, these efforts may provide a winning margin.”
“And the opposing candidate in such a small election may not have the financial ability to investigate or hire attorneys to contest the questionable voters. But under the existing law, we cannot remedy this election, nor can we prevent the same thing from happening again,” she added.
“I encourage the North Carolina General Assembly and the State Board of Elections to note the issues highlighted by this case and consider changes to the law necessary to protect public trust and confidence in our elections,” Stroud concluded.
Cummings and Dial have battled each other electorally for more than a decade. They could square off again in 2027. Perhaps policymakers will address Stroud’s concerns before Pembroke voters select their next mayor.
Greater clarity about rules for voters with “non-traditional housing” would boost election integrity in all corners of North Carolina.
Mitch Kokai is senior political analyst for the John Locke Foundation.