The Guilford County Board of Elections is out of business.
A Monday, March 5, North Carolina Superior Court ruling that upheld a new nine-member structure for a combined state elections and ethics board also abolished a special court order that had been allowing the four-seat Guilford County elections board to function with only two members. With that special order no longer in effect, the Guilford County board is unable to meet, much less conduct any business at a time when the election season is going strong.
The state’s 100 county boards of elections were transformed from three-member boards to four-member boards in July 2017 under the same legislation that led to a court battle between Gov. Roy Cooper and the North Carolina General Assembly over the structure of the state’s elections board.
In January 2018, the North Carolina Supreme Court rejected an eight-person combined elections and ethics board approved by the legislature. The General Assembly quickly adopted a new version of the combined board – one that included a ninth seat to be occupied by a board member who’s neither a Democrat nor a Republican. Under that new structure adopted by the General Assembly and upheld this week by the North Carolina Superior Court, the combined state elections and ethics board would have four Democrats, four Republicans and one member who is either unaffiliated or a member of a third party.
Cooper may appeal the March 5 Superior Court ruling to the state’s Supreme Court, but, regardless, county boards like Guilford County’s are now defunct. No new board members can be appointed to county boards since all those appointments are done by the state’s elections board – now the State Board of Elections and Ethics Enforcement – which currently has no members and which may be the subject of more litigation.
The filing period for candidates for the 2018 election closed at the end of February, and the weeks leading up to the May primary are, of course, a busy time for county elections boards, which finalize plans for the election.
The Guilford County Board of Elections has other business on tap as well. The board was scheduled to meet next on Tuesday, March 20, where the board planned to hear a challenge to the residency of Summerfield Town Councilmember Todd E. Rotruck. A Summerfield citizen has alleged that Rotruck doesn’t live in Summerfield and that he therefore cannot serve on the Town Council. That elections board meeting and hearing, however, cannot take place under the existing circumstances.
Josh Lawson, legal counsel for the State Board of Elections and Ethics Enforcement, sent an email to the 22 affected counties on Tuesday, March 6, informing them that the Superior Court had revoked the temporary order that had allowed two-member elections boards to conduct business while the governor’s challenge was being adjudicated. Lawson stated in that email, “As of yesterday afternoon, however, two-member boards cannot conduct business.” (The underscore is Lawson’s.)
The email acknowledges that there are a number of decisions that county boards of elections typically make at this period in the elections cycle but will not be able to make under existing law and circumstances. Elections officials across the state are now dealing with the real possibility that the ongoing legal battle at the state level may cause a very serious disruption to the elections process in some or all counties and may prevent elections from taking place.
Lawson’s email includes the somewhat ominous sentence: “We are working to ensure elections continue, notwithstanding disagreement between the political branches, and we hope to limit areas affected by this period of forced inactivity.”
In the email, Lawson stated that, if Cooper chooses to challenge the decision, the legal staff of the State Board of Elections and Ethics Enforcement will seek another court order that enables two-member boards to act until new county board members can be appointed.
There is also the added concern that, at any time, an existing two-member boards could become a one-member board if a member moves, resigns, dies or is incapacitated.
Guilford County Board of Elections Director Charlie Collicutt said he and his staff are attempting to conduct the business of his elections office to the most effective extent possible given that the county’s Board of Election cannot meet.
“I’ll say we’re going to do our best,” Collicutt said.
He added that, while the staff can handle some of the business of elections, it doesn’t have the authority to perform some actions such as setting or changing voting sites or conducting hearings over residency disputes like the current one in Summerfield.
The other counties with only two elections board members, and therefore no ability to conduct business, are Bertie, Bladen, Carteret, Chowan, Craven, Cumberland, Davidson, Edgecombe, Gates, Hyde, Jackson, Jones, Lincoln, Montgomery, Onslow, Perquimans, Pitt, Swain, Transylvania, Vance and Wake counties.
