Apr. 18, 2005
Legislature Set to Decide Superintendent Race
By J. Barlow Herget
RALEIGH - The 2004 election is like the guest who won’t go away.
Here in April, last November’s election of the State School Superintendent still hasn’t been decided. The N.C. legislature, however, has adopted a new law that offers to bring resolution to this interminable campaign.
The new law was lost in the headlines about a companion bill that dealt with a controversial state Supreme Court decision over the counting of provisional ballots. That bill made clear that the legislature in 2001 meant for valid provisional ballots cast on Election Day to be counted.
The second law, Senate Bill 82, reaffirmed the General Assembly’s constitutional authority to settle disputed elections such as the State Superintendent’s campaign. The bill also spelled out the process by which such contested campaign outcomes are to be determined.
The legislature’s authority and procedures to settle such elections go back to the state’s first days in the 18th Century.
(Some speculate that the legislature was given such authority because at the time, many offices including that of governor were not elected by a popular vote but by the legislature. Also, there was a belief among the state’s founders that election disputes over the highest offices should be decided by people’s representatives rather than the courts.)
Curiously, in 1971, the legislature repealed the statutory process that had been set out in the law. No one seems to know how it happened and some legislators such as Sen. Dan Clodfelter, D-Charlotte, sponsor of SB 82, believe it may have been an accident by a bill writer.
But there it was. The legislature had the constitutional right to settle elections for the legislature and Council of State offices, but didn’t have any guidelines on how to proceed.
Thus, SB 82. “It provides the procedural rules for the constitutional provisions that a disputed election for the governor, lieutenant governor and Council of State shall be decided by the legislature. It’s the nuts and bolts of the process,” explains Clodfelter.
In short, the law permits a candidate to appeal to the legislature an election result over eligibility and/or conduct that could affect the result. For example, the Agriculture Commissioner must be engaged in farming in some way according to law, and if he or she isn’t, his opponent could file a challenge.
Similarly, if ballots are lost but could have determined the final outcome, a candidate can protest the election.
The legislature would then hear testimony in a joint committee and refer the matter to a joint session for a vote. That’s the “nuts and bolts.”
The controversy over the new law is its provision that makes it retroactive to the 2004 election cycle.
Clodfelter and House sponsor Rep. Deborah Ross, D-Raleigh, both attorneys, are confident that the legislature is on sound legal ground in applying a 2005 law to the 2004 election. They say that there are ample precedents, including a recent case in Virginia, for the legislature to apply a current correction to past events.
Says Clodfelter, “What you can’t make retroactive is to punish something that was legal when it was done.”
The impact of the new law on the State Superintendent’s race will be known soon. Democrat June Atkinson, who leads in the official tally by about 8,500 votes, has filed papers with the legislature to have it settle the dispute.
The state is awaiting a decision by the federal Justice Department to determine if the new law might affect civil rights. That clearance is expected in 30 days or sooner.
Meanwhile, Atkinson’s opponent, Republican Bill Fletcher continues to challenge the election results in court. He has argued that certain provisional ballots should not be counted. The N.C. Supreme Court agreed and sent the matter back to the lower court.
Now that SB 82 has been approved, however, the trial judge has said he no longer has jurisdiction; that the matter belongs in the legislature. Fletcher has appealed that decision.
Atkinson’s attorney John Wallace says, “The General Assembly is empowered to determine the election contest in the State Superintendent’s race. Upon pre-clearance of the statute pursuant to the Voting Rights Act, the General Assembly will act expeditiously to put the matter to rest.”
The one, big question in the drama will be the N.C. Supreme Court’s decision on Fletcher’s appeal. The state will face a constitutional crisis if the Court decides that SB 82 cannot be applied retroactively. Few want such a standoff.
Says Clodfelter, “We’ll cross that bridge when we get to it.”
Barlow Herget is a former Raleigh city councilman and writes the Follow the Money column for the N.C. Center for Voter Education.
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