Feb. 21, 2005
When the Law Doesn’t Make Sense
By J. Barlow Herget
RALEIGH - If you wanted an example of the cliché about babies and bathwater, the state Supreme Court is your illustrator.
The Court, in a 5-0 vote, tossed out 11,310 valid votes (that’s the baby) in its recent decision on the suit challenging the election of Democrat June Atkinson by her Republican opponent Bill Fletcher. The Court ruled in Fletcher’s favor.
The votes were not from dead people or make-believe citizens. They were from people who had legally registered to vote and voted in their respective counties with provisional ballots.
They didn’t vote, however, in their own precincts, and for that the Court declared their votes worthless.
This is one of those decisions that has some people fired up, claiming it goes against common sense.
Statutory law does indeed say that people should vote in their rightful precincts. But it says some other things, too. Judges in the past generally have ruled in favor of counting valid ballots cast in the proper county rather than voiding them. This murky situation is the bathwater.
The Court’s decision affects only provisional ballots. Remember, these ballots are for voters who are properly registered in their respective counties but may not know their designated precinct. Because of a last-minute rush of new voters, local election boards were not able to notify all voters of their proper precincts before Election Day.
Election workers told voters who were in wrong precincts -- for whatever reason -- that they could cast a provisional ballot that would be verified later. That’s how absentee and early votes have been treated and counted in the past.
The state finds itself in an odd predicament that gets odder the more it’s examined. As “Charlotte Observer” columnist Jack Betts observed, “It’s all right for 1 million North Carolinians to vote out of precinct before an election, but it is not all right for 11,310 North Carolinians to vote out of precinct on Election Day.”
Odd again is the conflict now between federal elections and state elections in regard to provisional ballots. The federal Help America Vote Act (HAVA) called for provisional ballots in the elections of U.S. representatives, senators, the vice president and the president. North Carolina has employed such ballots since 2001.
The overarching purpose behind HAVA is to encourage people to vote and to make sure their votes are counted. Congress didn’t want any disputes like the Florida 2000 election.
Thus, the provisional ballot of an out-of-precinct voter is counted for federal elections, but doesn’t count for state and local elections, according to the state Supreme Court’s ruling. Now that’s a ballot with a split personality.
And that’s not all. As noted earlier, the state’s election laws are not exactly simple and direct. The courts, however, have been guided by a decision written by former Justice and later U.S. Senator Sam Ervin. He called himself just a country lawyer, and his opinion followed a basic, practical philosophy.
It said, in a dispute involving votes cast wrongly but by legally registered voters, “The object of elections is to ascertain the popular will and not to thwart it. The object of election laws is to secure the rights of duly qualified electors and not to defeat them.”
He ruled in favor of the duly registered voters.
Meanwhile, the state Senate has adopted Senate Bill 133 that clarifies election law in regard to provisional ballots. The bill’s language has the tart tone of a stern schoolmarm instructing a slow student.
It reads: “A voter’s eligibility to cast a provisional official ballot depends on being a registered voter in the jurisdiction in which the voter seeks to vote. The ‘jurisdiction’ in which a voter in North Carolina registers to vote is the county. This is the unmistakable meaning of [General Statute] 163-82.11 and has not heretofore been challenged or questioned.”
The bill is retroactive to January, 2004.
The matter of the state school superintendent’s election has returned to Superior Court. Atkinson led Fletcher by about 8,500 votes. She may still lead after the 11,310 are removed. One study suggests that even without the provisional ballots counted, Fletcher cannot win. Two other elections, one for county commissioner in Mecklenburg County and a similar race in Guilford, may be affected if the votes are dismissed.
Voters who cast provisional ballots can find out if their ballot was thrown out, by checking their name against a list posted under a Voter Alert on the NC Center for Voter Education’s web page, at www.ncvotered.com. A copy of the Supreme Court ruling can be found there as well.
While the legislature debates the correctness of the Supreme Court’s ruling, the effect of the ruling on public policy should concern everyone. The state told over 11,000 people on Election Day that their provisional ballots would count. If the legislature can restore what everyone thought was already the law, then perhaps the baby can be retrieved by summer.
Barlow Herget is a former Raleigh city councilman and writes the Follow the Money column for the NC Center for Voter Education.
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