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Remember Bush v. Gore? 

Now it's Fletcher v. Atkinson, and the stakes are-- well, precedential, with a "c."

Does it bother you that, six months after the election, we still have no one seated as our state superintendent of public schools? Well, of course it doesn't. A governor's appointee is running the Department of Public Instruction in the meantime, which is really what should happen anyway--there is no reason to have an elected official there. The State Board of Education isn't affected by the delay, nor are the local school boards, end-of-grade tests, the teaching (or mangling) of evolution (whichever occurs in your locality), or much of anything else. Summer will arrive, that is to say, regardless. And I'm not bothered by it either, except for two things.

First, and of lesser importance, is that lingering business of how the Independent could possibly have endorsed Republican Bill Fletcher for this post, given his wing-nuttery on the issues of gay rights and sex education. So when I say, as I'm about to, that Fletcher's got a point in all his court appeals, I know I'm going to hear it again from my progressive friends what a whack job it was that we didn't back June Atkinson, the Democrat, and how sad that we've never since called on Fletcher to concede defeat.

I can't speak for anyone else at the Indy who voted for Fletcher, nor do I want to elaborate on my own reasoning beyond what we said editorially at the time. But I'm not hiding either. I raised my hand for Fletcher, and I voted for him. So count me among the embarrassed enablers of his lawsuit, with which I completely disagree. He should have conceded, it's true.

But that brings me to the second, more important point. Fletcher won his lawsuit. The state Supreme Court agreed with him--wrongly, I think, but so what, I'm not on the court--that out-of-precinct provisional ballots should not be counted in state elections. Atkinson defeated Fletcher by some 8,000 votes, but that was after counting the out-of-precinct provisionals--at least 10,000 of them, maybe a lot more. (That is, people were allowed to cast provisional ballots even though they showed up in the wrong precinct, and their votes in some elections--for president, e.g. --were not in dispute.) And, of course, it didn't account for the 4,000 "lost" votes in Republican Carteret County either.

So you're Fletcher, and you think you might actually have won the election, at least by your standards, and you're waiting for a recount to be ordered by the trial judge, or for some other "remedy" to be ordered (because, as it turns out, a lot of local elections boards didn't separate the out-of-precinct provisionals from the big pile, so how are you now going to not count them?). And meanwhile, Democrats are screaming at you to concede.

Remember Gore v. Bush in the U.S. Supreme Court? Did you want Big Al to concede? Hell, no. You fight for what you think is right.

Anyway, if you're reading this, you doubtless know that the General Assembly, when it was seated in January, promptly intervened. Very interesting state Supreme Court decision, the legislature said, but it's wrong-o. We wrote the law on provisional ballots, and we wanted them counted. What's more, the state constitution says that in a "contested election" for a Council of State position, we, the General Assembly, make the decision by joint ballot "in the manner described by law."

That's in Article VI, Section 5, and some variety of it has been in our constitution since 1835, when the judges rode circuit on their horses. But it's never been used--as in never, ever--and the "manner prescribed by law" was repealed years ago.

So the General Assembly enacted a new law. It set up a 10-member legislative panel to help the full body "determine which candidate received the highest number of votes," whereupon it will meet in joint session and vote to "declare that candidate to be elected." Failing such a determination, the law says, the General Assembly could itself order a new election.

The legislative panel is about to go to work.

We could be headed for a constitutional train wreck.

I'm persuaded that the legislature is within its authority to make this determination about who won. Fletcher's lawyer, Mike Crowell, argues that since the old "manner prescribed" was repealed, the legislature in effect had delegated its authority to the courts. True, but as the General Assembly's top lawyer, Gerry Cohen, says, it was an unconstitutional delegation. The legislature cannot shirk its duty.

But the legislature also cannot set itself up as the legal arbiter of what a prior legislature meant when it enacted the provisional-ballots law. That's what courts do. They interpret the law.

Now, I realize that Marc Basnight, Tony Rand and Jim Black all know what they meant when the provisional-ballots law was rewritten a few years ago. And given the way the General Assembly actually works, they could tell us and save everybody a lot of time. But then we wouldn't have the "republican form of government" guaranteed every state by the federal Constitution, would we? You know, with every legislator getting a vote, and the governor signs it, and stuff?

We'd have the Big-D Democratic Caucus form of government.

So here's the problem: What happens if the General Assembly decides that the disputed provisionals do count, and therefore Atkinson wins? Cohen says that, in this specific case, by constitutional direction, the legislature is a court, and the judicial branch of government has no role. Just to underline this point, the General Assembly's new law says its determination cannot be appealed to any court-like court.

It seems to me, though, that the General Assembly is obliged to make its determination about who got the most votes based on the law that existed in November 2004, when the election was held. It can't rewrite or reinterpret that law now. That would be viewed, and properly so, as mere politics.

And, to repeat, the state Supreme Court has already said what the law meant then--even if they got it wrong. The out-of-precinct provisionals should not count.

It's for that reason that I think the legislature should have stayed out of this case until the courts were finished with it. Then, if the eventual loser contested the result, the legislature could have set up a panel to review the facts, but with the full benefit of the judiciary's decisions about the law.

The good news in all this is that the co-chairs of the legislative panel arguably are its two best constitutional lawyers: Rep. Deborah Ross of Raleigh, former executive director of the N.C. Civil Liberties Union, and Sen. Dan Clodfelter of Charlotte.

The bad news is, Ross agrees with Cohen--the General Assembly is the court here, she says, not just as to the facts but on the law as well.

Not to worry, Ross adds. It may be that when the facts are sorted out, the panel will find--and recommend to the General Assembly--that Atkinson was the winner with or without the disputed provisionals. That would avoid my train-wreck scenario, unless the state Supreme Court thereafter decided to jump back in--just for fun--with another ruling on Fletcher's lawsuit. Which, by the way, remains alive, albeit "abated" by the General Assembly's new law.

But if the General Assembly, in its legal wisdom, says the 2004 election law should be read one way, and the state Supreme Court says to read it another way, I'll take the court's opinion--even if it is wrong. Because, to repeat, that's what we have courts for. To rise above--and here, I'm suppressing my gag reflex--mere politics.

And if you think it's all about a meaningless job, anyway, remember this: The General Assembly's new law applies to contested legislative elections, too. And elections for every executive job, including governor.

This isn't about Fletcher and Atkinson. It's about setting a precedent for close elections before we have one that really matters.

Bob Geary isn't a lawyer, just a citizen--at rjgeary@mac.com.

  • Now it's Fletcher v. Atkinson, and the stakes are-- well, precedential, with a "c."

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