RALEIGH – There are five would-be wise men and women on the North Carolina State Board of Elections. But the “compromise” they came up with Tuesday to address the Carteret County vote-count snafu is far from Solomonic. Instead of threatening to chop the baby in half to force one side or the other to show its true colors, the board voted 4-1 to give the electoral baby up for adoption, leaving each “parent” puzzled and exasperated.
Let me restate the dilemma. Some 4,400 qualified voters in Carteret failed to have their votes counted on Election Day because of a malfunction in the computerized voting machines used there. Somehow the machines ran up against their capacity without election workers or voters realizing it, so that these votes were entered but not recorded. Because the margin of victory of Republican Steve Troxler over Democrat Britt Cobb in the agriculture commissioner’s race is smaller than 4,400, it is at least theoretically possible, though not likely, that these lost votes might have changed the outcome.
The state board was faced with several potential responses. First, it could have done nothing, chalking the result up to unfortunate but irredeemable error, and certified the current results. Frankly, this would have been the best choice of all given the problematic legality of other responses.
The second option was to call for a new statewide election. This was Cobb’s preferred option, for the obvious reason that he lost the first one, and was also oddly welcomed by much of the media and political establishment in Raleigh who seemed to think it was the only legal and responsible course. Actually, this option was grotesque. It would have squandered millions of dollars on a special, low-turnout special election for ag commissioner that would have, in effect, thrown out the previously stated preferences of millions of NC voters whose ballot were correctly cast and counted.
A third option, and what Troxler wanted, was for election officials simply to track down the Carteret voters whose ballots were mishandled and ask them to cast ballots again. These voters are already known; there’s a list of them. While seemingly a straightforward solution to the problem, it was argued by some to violate state law requiring any new election to involve the entire jurisdiction, not just a selected part of it. But, said Troxler’s lawyer, this wasn’t a new election. It was merely a completion of the old one, similar to what would happen if thousands of voters had fed their ballots into a scanning machine, had them rejected for some technical reason, and then had the spoiled ballots discarded and replaced with new ones that were successfully scanned. There might be a temporal difference – correcting a spoiled ballot on the day of the election versus correcting a mishandled electronic ballot some weeks afterward. But the legal concept is the same.
No, said the three Democrats who formed the majority of the state board of elections. That won’t do. Neither would a revote of all of Carteret County, because that would equally violate state law. I’d presume that these public servants were just doing their jobs, and not trying to bend over backwards for fellow Democrat Cobb, except for the fact that they came up with yet another, fifth option.
This was the dumbest one of all. Two of the three Dems – joined by two frustrated Republicans trying to get some kind of remedy, even a flawed one – decided to order that the 4,400 voters whose ballots were not counted plus thousands of Carteret residents who chose not to vote on Election Day will be able to participate in a special election for agriculture commissioner.
Huh? This would appear to have the same legal problem as the more sensible solution of asking just the injured voters to resubmit their ballots, plus it adds a couple of new ones. First, those Carteret voters who didn’t vote the first time have no right to another chance. To give them one deprives the rest of the county’s electorate of an equal right to decide the outcome of the election, since the non-voters will be armed with information (the vote totals thus far) that the original electorate was not allowed to have by law. Although the 4,400 voters also have that knowledge, at least they were previously injured and thus deserve a remedy. The non-voters were not and do not.
Second, the total potential electorate for the new election is about 24,000 – the 4,400 injured voters plus the non-voters with a second chance. This is clearly a large enough potential vote to call into question the outcome of the other disputed statewide race the state board dealt with on Tuesday: the state superintendent of public instruction race between Democrat June Atkinson and Republican Bill Fletcher. The board voted for certification of Atkinson’s victory over Fletcher, but the margin of victory is currently about 8,500 votes. That’s too few for the 4,400 lost votes to erase, but now there are 24,000 chances for Fletcher to prevail and he has just as much right to seek those votes as Cobb does.
All in all, a ridiculous outcome to ludicrous debate. Appeals courts, here they all come!
Hood is president of the John Locke Foundation and publisher of Carolina Journal.