RALEIGH — All five original candidates from a Clayton Town Council election in November are back in the race.
Superior Court Judge Robert H. Hobgood ruled Thursday in favor of an appeal by Alex Atchison, a Clayton council member who lost a re-election bid in November. Atchison, a lawyer at the Raleigh firm of Young Moore and Henderson, said the State Board of Elections had been wrong to limit a special re-vote to only two candidates.
The state board decided in December that Johnston County precinct officials had mistakenly given out 20 ballots in the Clayton Town Council race -- casting enough doubt on the results to merit a special election. At least 18 out-of-town residents were allowed to vote in the race, while two town residents received out-of-town ballots and were deprived of voting in the race. The board said only second-place finisher Art Holder and R.S. "Butch" Lawter, who came in third, needed to be in a special runoff. Holder led Lawter by three votes.
But only 11 votes separated Alex Harding, another incumbent council member, from second-place finisher Holder.
Hobgood ruled that the 18 ineligible votes cast could all have gone to Alex Harding, the top vote-getter. That "directly calls the entire vote total of each of the top three candidates into question," Hobgood said.
Hobgood is ordering the state elections board at its meeting today to call for a new Clayton election with all five original council candidates.
At a Wednesday hearing, Susan Nichols, the lawyer representing the state elections board, opposed such a move.
"If a mistake was made, it wasn't in bad faith," Nichols said.
Nichols contended that Atchison, who finished fourth, and Michael Starks, who finished fifth, could not possibly have won in November. She also chided Atchison for not speaking up earlier. The Johnston County elections office had already mailed out about 29 absentee ballots and gotten six back for the runoff, originally scheduled for Feb. 19, Nichols said.
Atchison's attorney Kenneth Soo of Tharrington Smith LLP countered that his client had complied with all statutory requirements and timelines. Technically, Atchison could not file an appeal until the state board delivered an official copy of the order for a new election, Soo said. Although the state board made a decision Dec. 19, it did not issue paperwork ordering a new election until Jan. 18.
Atchison received his copy by certified mail Jan. 30 and filed an appeal Monday.
Hobgood noted from Dec. 19 meeting records that the state board apparently did not deliberate long.
"[They] considered this matter from 3:00-3:03 P.M. on 19 December 2007, a total of three minutes," Hobgood wrote.
Hobgood's ruling means the Feb. 19 runoff is canceled. Leigh Anne Price, Johnston County elections director, said she had printed about 10,000 ballots for that contest at a cost of about $1,000. She'll now have to order ballots a third time for the Town Council vote, and no date has been set.
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