Judge rules Hines' win should be certified
By Ginger Livingston
The Daily Reflector
Saturday, December 30, 2017
RALEIGH — A Wake County judge on Friday ordered the Pitt County Board of Elections to certify the election of Ricky Hines to the Winterville Town Council, saying the county board did not have the authority to revoke a certificate it had previously issued.
Wake County Superior Court Judge Paul Ridgeway ordered Hines’ attorney to prepare the order for his signature. The goal is to have the order signed and finalized in time for Hines to be sworn in at the Winterville Town Council’s Jan. 8 meeting.
“I am glad the process worked out. From day one I said, ‘Let the process follow through,’” Hines said. “I’m pretty sure that you are going to have some people who question (it), but at the same time I’ve had a lot of support, people in the community coming to me and saying they think I’ll do a great job and represent them well.”
It’s unknown if state attorneys will appeal Ridgeway’s ruling.
Ridgeway said the certificate of election issued on Nov. 27 was the final act of the election and should not have been revoked because both state law and judicial precedent protect certification to ensure the finalization of the voting process.
The N.C. Attorney General’s Office filed a petition for judicial review with the court prior to Christmas. The attorney general’s office, working with the State Board of Elections and Ethics Enforcement, sought court review of the Winterville election to fill the unexpired term of Councilman Ron Cooper, who died earlier this year.
The petition sought a judicial ruling on whether a new election for the seat was needed because 10 ineligible votes were cast by people who lived outside Winterville’s municipal limits.
Addresses of the ineligible had been incorrectly coded because parts of the streets are inside the city limits. Town officials said the unincorporated areas are expected to be annexed sometime in 2018.
Despite the ineligible votes, the Pitt County Board of Elections certified Hines’ win on Nov. 27 because John Hill, who placed second after the canvass, did not file an election protest.
However, an attorney with the State Board of Elections and Ethics Enforcement on Dec. 6 told the county board it shouldn’t have certified the election because of the ineligible ballots. The county board revoked the certification.
Hines obtained representation from the Southern Coalition for Social Justice.
The coalition’s senior attorney, Allison Riggs, asked the judge to restore the Nov. 27 certification, saying the state didn’t give county election boards the authority to revoke certification once it was issued.
Riggs cited court rulings from 2006 and 1916 where the state Supreme Court said election results couldn’t be overturned once certified.
James Bernier Jr., special deputy attorney general, argued that the precedents cited by Riggs didn’t match the facts of this case and that the Pitt County elections board had a duty to correct an error.
“Everyone agrees the 10 votes were cast that shouldn’t have been cast,” Bernier said. “It’s unrealistic that an error, known by all, that should not have occurred and could have affected the election shouldn’t be corrected because everyone remains silent.”
Ridgeway asked what option the county board had.
“The county is obligated to issue a certificate of election. Unless certain things occurred, the board has an obligation to issue a certificate,” Ridgeway said.
“This is an unprecedented situation,” Bernier said.
The state board has a fundamental duty to make ensure elections are administered properly and when people are certified as the winner that the person actually won the election, said Katelyn Love, deputy general counsel with the state elections board. This election’s outcome is in dispute because of unprecedented circumstances, she said.
Love said no one disagrees that ineligible votes were cast.
“The statutory authority for revocation of the certificate comes (from statutes) that provide the state board authority to not only consider matters that are filed as untimely or improperly filed protest but it allows state board to consider matters on its own motion,” Love said.
State statutes say “the state board to take any other action necessary to ensure an election is determined without taint of fraud or corruption and without irregularities that may have changed the result of the election,” she said.
“That’s what we have here, we have irregularities that could have and may well have changed the outcome of the election,” Love said.
The county board recognized the certification was improperly issued and recognized the abstract its members signed was incorrect because of the 10 irregular votes so it revoked the certification, she said.
Riggs and the state attorneys agreed unusual circumstances clouded the case, namely that there was no sitting state Board of Elections and Ethics Enforcement for the local elections board to confer with, and the fact that no protest was filed despite the knowledge of the irregular votes.
Ridgeway again raised the deadline facing the local election board.
“There has to be finality to the process,” he said.
Ridgeway asked Love if there was any precedent involving a local election board revoking a certification.
Love said she wasn’t aware of any, but that she hadn’t investigated past elections.
Riggs said she has spoken for previous election officials and no one could recall a revocation.
The General Assembly created timelines for voter challengers, protests and deadlines so orderly elections can be conducted and the results finalized, Riggs said.
The state elections board also issued an order on Nov. 28, 2016. State Board of Elections votes that had been challenged after the protest deadline couldn’t be discounted because the deadline hadn’t been met.
‘We think this quick resolution will serve the voters in Winterville and the government of Winterville,” Riggs said.
The Winterville Town Council is scheduled to start work on its fiscal year 2017-18 budget in January, she said.
Prior to issuing his verbal order, Ridgeway praised Hines and Hill.
“I congratulate you on the way you have conducted yourselives,” Ridgeway said. “It’s remarkable in this day and age, when we have a election like this, that the candidates conducted themselves with such civil discourse.”
Contact Ginger Livingston at firstname.lastname@example.org or 252-329-9570. Follow her on Twitter @GingerLGDR.