PRESS 01132005 Judge throws out ag revote

RALEIGH

A judge struck down a statewide election to settle the race for state agriculture commissioner yesterday, saying that the State Board of Elections lacked the four votes needed under state law to order the new election.

Judge James Spencer Jr. of Wake Superior Court sent the case back to the elections board for a third try to resolve the race, where Republican Steve Troxler leads Democratic Commissioner Britt Cobb by 2,287 votes, and where voting machines in Carteret County lost 4,438 votes.

Spencer noted that every vote by the elections board, where Democrats hold a 3-2 majority, fell along party lines when it ordered a new statewide election at its Dec. 29 meeting.

"There comes a time when the passion of partisan politics must give way to the integrity of the electoral process," Spencer wrote. "The people of North Carolina deserve and have a right to expect it and the integrity of our system of government demands it. That time, if not long past, is now."

Spencer said that the elections board may consider 1,352 affidavits that Troxler's campaign collected from voters in Carteret County who swore that they voted for Troxler - a move that Troxler says would make it mathematically impossible for Cobb to win.

By a vote of 4-1 on Nov. 30, the elections board first ordered a limited revote in Carteret County that would have been open to the 4,438 voters whose ballots were lost, as well as 14,000 other voters who did not vote in the Nov. 2 general election.

But that approach was struck down in court.

Then the elections board voted 3-2 along party lines on Dec. 29 to hold a new statewide election for agriculture commissioner, saying it was amending its earlier order.

But Spencer found that the board's parliamentary procedure fell short of the requirement in state law for four votes to order a new statewide election, which has been estimated to cost as much as $3.5 million.

"The statutory requirement cannot be trumped by Roberts Rules of Order on amendment or the fact that supermajority requirements are generally disfavored," he wrote.

"What occurred here was an impermissible end run around a statute that is clear and controlling. The result was unlawful and will not be permitted to stand."

Spencer also found that the affidavits collected by the Troxler campaign from Carteret voters who said they voted for Troxler met the criteria for new evidence and can be considered by the elections board.

Troxler had asked the judge to put an end to the repeated efforts of the state elections board and simply certify him as the winner.

Spencer stopped short of that. But he warned that if the elections board can't come up with "some appropriate remedy ... the court may revisit Mr. Troxler's remedial requests upon any subsequent appeal."

After the decision, Troxler released a statement calling for the elections board to hold an emergency meeting and certify him the winner so that he can be sworn in Saturday as agriculture commissioner along with the other members of the Council of State.

"This ruling was a clear victory for the majority of North Carolinians who participated in the 2004 election," Troxler said.

But with no sign that the elections board can bridge its 3-2 partisan divide, Cobb indicated that he might pursue another route and ask the General Assembly to settle the race.

"I am as frustrated with this process as everyone else. The matter has been bounced back and forth like a pingpong ball," Cobb said in a statement.

"Considering the impasse, perhaps it's time the State Board of Elections referred the matter to the General Assembly for resolution in accordance with the state constitution," he said.

Cobb's campaign cites Article VI, Section 5 of the state constitution, which reads: "A contested election for any office established by Article III of this Constitution shall be determined by joint ballot of both houses of the General Assembly in the manner prescribed by law."

Cobb is represented by the same attorney as June Atkinson, the Democratic candidate for state superintendent of public instruction.

In response to Republican Bill Fletcher's challenge to Atkinson's certification as the winner of the superintendent race, Atkinson cited the same constitutional provision last week and filed a motion with the N.C. Supreme Court asking for the matter to be settled by the General Assembly - where Democrats hold a majority in both houses.

But for now, the case goes back to the State Board of Elections for a third try.

"We have to wait and see what the board of elections does," said Tim McKay, a spokesman for Cobb's campaign.

"The board of elections has to do something. It's up to them to decide what to do."

• David Rice can be reached in Raleigh at (919) 833-9056 or at drice@xxxxxxxxxxxxx

PRESS 01132005 Judge throws out ag revote - North Carolina