Judicial review petition filed over Winterville election
The Daily Reflector
Thursday, December 21, 2017
The State Board of Elections and Ethics Enforcement has formally requested a review of a Winterville Town Council election that has been in question since Nov. 7.
The board on Wednesday filed petition for judicial review asking Wake County Superior Court to either certify the outcome or order a new election, a spokesman said. A short time later, an advocacy group called Southern Coalition for Social Justice filed a petition on behalf of the winning candidate, Ricky Hines, requesting that the court honor the election results and award Hines his seat on the town council.
The state board requested an expedited hearing be held the week of Feb. 5 to decide who will fill the two-year, unexpired term of Winterville councilman Ron Cooper, who died earlier this year. The petition also asks for a similar ruling for a disputed race in the town of Sharpsburg.
“Timely resolution of this matter will dispel the cloud now overshadowing the towns of Winterville and Sharpsburg regarding the outcome of those elections,” the petition said.
The election was thrown into turmoil after it was discovered 10 people who voted in the contest live in the Mellon Downs subdivision, which is outside the town limits. The subdivision is to be annexed by the town, but that has not happened yet.
The outcome of the race between Hines, John Hill and David Hooks was always close. Hill was the unofficial winner on election night, receiving 421 votes, eight more votes than Hines' 413 and 47 more votes than Hooks' 374.
When the canvass was conducted Nov. 17, 16 provisional and supplemental absentee ballots were added to the final count. Hines got 12 of the votes, Hill got three and Hooks one. Hines won by one vote, 425 votes to Hill’s 424 votes.
The 10 ineligible votes were discovered in the days between the canvass and a Nov. 21 recount requested by Hill. When the recount produced the same vote count and Hines still won by one vote, Hill was told he had a day to file a protest in an attempt to remove the ineligible votes. He declined.
Pitt County Board of Elections Director Dave Davis said it was his understanding that a protest was needed in order to remove the ineligible ballots, and without the protest the final results stood. The Pitt County Board of Elections certified Hines as the winner on Nov. 22, the day before Thanksgiving.
On Dec. 6, the attorney for the state elections office contacted Davis. He said the election results couldn't be certified because of the ineligible votes. The attorney said the state elections office would file a court petition if the local election board asked for a new election.
The call came five days before Hines, the mayor and two other council seat winners were scheduled to be sworn in on Dec. 11.
The Pitt board turned the matter over the state board and the court to determine if a new election or other action was needed. The Pitt board sent an addendum on Dec. 7 explicitly requesting the state elections office consider a new election and revoking the certification of the contest pending a decision from the state office or superior court.
The newly filed petition asks that the court enter an order directing either that new elections be held or that certificates of elections be issued to the candidate receiving the most votes.
According to the petition filed on behalf of Hines, no new election should take place.
“This election was certified and state law does not allow a local board of elections to revoke that certification once it has been granted,” said Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice and the attorney representing Hines.
Riggs said the voting error was widely reported in the media and Winterville residents had the opportunity to file a protest. No protest was filed.
“Overturning the election and circumventing the process now is wrong,” Riggs said.
In an earlier interview, Hines said although he plans to attend regularly scheduled council meetings. He said he considers himself a Winterville council member until the court rules.
"Even through all this adversity I am the winner and I am the people’s councilman,” Hines said.
"I need to know what is going on even if I am not seated at the table with them,” he said. “Because once I do take office I don’t want to be behind. This is just a formality that we are going through.”
Hill will remain on the council as the process plays out. Earlier this month, he said he was stunned to learn the outcome was being decertified and the case would be referred to the courts.
Now that the petition is filed, Wake County Superior Court will schedule the hearing. The judge will review the information presented in the petition and may consider additional evidence or testimony.
One thing the judge won't be able to do is subpoena the 10 people who improperly voted. State law prohibits consideration of testimony of how a voter voted, said Patrick Gannon, public information officer with the State Board of Elections and Ethics Enforcement.
If the judge decides that a new election should be held, he or she will set the date. Previous new elections ordered by the state board have been held at the same time as a regularly scheduled election. The next scheduled election is the Democratic and Republican primaries on May 8. The town of Winterville must pay the costs if a new election is ordered.
State law also says if a new election is ordered Hill, Hines and Hooks must appear on the new ballot. No additional candidates will be allowed unless one of the original candidates dies or otherwise becomes ineligible before the new election. If that happens, "that candidate may be replaced in the same manner as if the vacancy occurred before the original election.”