It was a statewide race that wasn’t decided for 10 months, and then not by a vote of the people but by 114 legislators.
Now, with North Carolina’s governor’s race still undecided after two weeks, political observers are taking another look at the disputed 2004 election for state superintendent of public instruction.
The race tested a little-known provision of the state constitution, came close to a showdown with the state Supreme Court and set a precedent for deciding contested elections – perhaps including this year’s gubernatorial race.
Since trailing Democrat Roy Cooper by around 5,000 votes on election night, Republican Gov. Pat McCrory has seen his allies file protests in more than half the state’s counties. Meanwhile Cooper’s lead has risen to what more than 7,700 votes, according to the state elections board. Cooper puts the margin at more than 8,500.
Digital Access for only $0.99
For the most comprehensive local coverage, subscribe today.
McCrory has officially asked for a recount even as election officials are still counting votes and reviewing challenges. And whoever ends up trailing after the official count could appeal the results – directly to the General Assembly.
That’s what happened in 2004.
Democrat June Atkinson, a public schools administrator, was running against Republican Bill Fletcher, a longtime member of the Wake County school board. On election night she led by about 8,500 votes out of 3.3 million cast.
But Fletcher disputed at least 11,000 out-of-precinct provisional ballots – enough to potentially flip the election – according to a 2007 account by Bob Joyce, a UNC School of Government expert. Fletcher argued that the N.C. State Board of Elections had violated the state constitution by allowing people to cast provisional ballots outside their precinct.
When the Democratic-controlled elections board upheld the balloting, Fletcher appealed to the courts.
The case made its way to the state Supreme Court. Atkinson questioned its jurisdiction, citing a constitutional provision that said contested council of state elections go to the General Assembly.
In Article VI, the constitution says a contested election for Council of State “shall be determined by joint ballot of both houses of the General Assembly in the manner prescribed by law.” So Atkinson asked the legislature to intervene.
The problem, the high court ruled in asserting its jurisdiction, was that lawmakers had established no “manner prescribed by law” for determining the outcome of a contested election.
On the question of provisional ballots, the court ruled that the elections board had misinterpreted the statutes allowing out-of-precinct votes. It sent that matter back to a lower court. The General Assembly quickly clarified the law on provisional ballots.
Then the General Assembly addressed the constitutional issue of contested elections. It set up a joint committee, chaired by Sen. Dan Clodfelter of Charlotte and Rep. Deborah Ross of Raleigh, both Democrats, to develop a process for resolving contested elections.
Ross said lawmakers were conscious that they were setting a precedent. “We did our job with history in mind,” said Ross, who lost this year to GOP U.S. Sen. Richard Burr.
In a resolution that Joyce said “finessed the constitutional showdown,” the legislative committee interpreted the state Supreme Court’s provisional ballot ruling to apply to future elections, not the 2004 race. And they adopted a process that gave unsuccessful Council of State candidates “the right to appeal … to the General Assembly.”
Lawmakers finally voted in August of 2005.
Ninety-three said Atkinson had won the election; 21 said Fletcher won and 51 either said they couldn’t tell or left their ballots unmarked in protest.
Appeal to lawmakers
So what would it take for a gubernatorial candidate to appeal to the General Assembly?
Not much, according to Joyce.
“The combination of the constitutional provision (on contested elections) and the language ‘has the right to appeal’ indicates to me that if the trailing candidate wants to, the matter would go to the General Assembly,” he said.
But there’s no definition of a “contested” election. What if the margin is 7,000 votes? 10,000? Or if the election is in court. Joyce said none of that may actually make a difference.
“I don’t know who there is to say it’s not a contested election,” he said.
In 2005, the legislature was controlled by Democrats. Now Republicans hold power.
Andrew Taylor, a political scientist at N.C. State University, said assuming McCrory was still behind, there are political dangers for him and for GOP lawmakers.
“I think it hurts McCrory that (President-elect Donald) Trump and (U.S. Sen. Richard) Burr did so well and won decisive clear victories,” Taylor said. “People might say, ‘If there was fraud, how come Trump and Burr did so well?’”
He said Republicans could face a skeptical public were they to appear to overturn an election. “Obviously a lot of people would question it, there’s no doubt about it,” Taylor said.
Cooper already has said he won and formed a transition committee as supporters fanned out across the state calling for McCrory to concede. McCrory’s campaign has strongly objected.
State law also stipulates that any decision made by the General Assembly in a contested election “may not be reviewed by the General Court of Justice,” or state courts.
Richard Hasen, an election law expert at the University of California-Irvine, addressed that prospect in his blog. He said federal courts could get involved.
“(A) brazen power grab without a plausible basis for overturning the results of a democratically conducted election?” he wrote. “I expect the federal courts would take a very close look at such a thing.”