Who counts the votes in Graham county?

The Graham County Commissioners and the Graham County Board of Elections are on opposite sites of a legal dispute over who can hire and fire employees of the elections board, a situation which North Carolinians for Free and Proper Elections said gives new meaning to the observation by Joseph Stalin “He who votes decides nothing; he who counts the votes decides everything.”

The dispute began in November when commissioners moved a full-time employee from the BOE to the county tax assessors office. The election board hired two-part time employees as replacements. When the commissioners refused to pay the salary of the second part-timer, the elections board took the matter to court.

“There is nothing more essential to the honesty and integrity of our elections than an independent board of elections,” said NCFPE President Jordon Greene. “The actions of the Graham commissioners strike directly at the heart of our electoral process.”

“If elected officials are the judge of their own elections, than our electoral process means little,” he said.

In a ruling issued Nov. 30, just 14 days after the lawsuit was filed, Superior Court Judge James L. Baker ruled that under North Carolina law commissioners “have no right or power to fire an employee” of the elections board. He said the commissioners had “failed to perform their ministerial duty.”

“Saying that the board failed in their ‘ministerial duty’ is a legal way of saying they did not do their job,” Greene said.

Although the issue isn’t part of the lawsuit, Judge Baker noted the commissioners had no legal authority to transfer the employee in the first place, the action that led to the lawsuit. He issued a writ of mandamus, a legal order, for the commissioners to make payment.

Greene noted that the judge’s ruling was supported not only the law but also by opinions from the state board of elections and from two former state attorneys general.

In 1981 Attorney General Rufus L. Edmisten wrote “The Board of Elections is not a ‘county board’ in the usual usage of that term, but is an independent entity created by the General Assembly …” Lacy Thornberg reiterated that opinion in 1985 when he wrote that the attorney general’s office  “has traditionally viewed employees of the County Board of Elections as being under the control and authority of the Board of Elections, not the Board of County Commissioners.”

Don Wright, state board of elections general counsel, said that while these cases “may have a few years on them” nothing newer was available “because the laws is so clear on the issue and the law has not changed since the dates of these letters.”

“You would think that with state law being so clear, coupled with the opinion of the state board of elections, and the opinions of two state attorneys general that the Graham commissioners would be able to understand the law and abide by it,” said Greene. “Apparently not.”

The North Carolina Association of County Commissioners is partially funding the Graham  commissioners appeal, another aspect of the case Greene finds disturbing. According to the Feb. 25 Graham Star, NCACC has pledged $13,000 to $15,000 to support the appeal.

The commissioners defended the NCACC funding in a paid advertisement in the Graham Star. The statement said, “As a result of this action by the association, Graham County taxpayers will not be required to pay a significant portion of the expenses associated with the appeal. This will further protect the interests of Graham County taxpayers while the commissioners take those steps necessary to insure that the county’s tax money is properly spent and the subject of proper oversight.”

The statement also said other local governments would join in the appeal.

“So not only are the Graham county commissioners using taxpayer money to fund this appeal, including hiring outside lawyers, they are also getting the help of a taxpayer-funded lobby,” said Greene.

“The thought of having elected officials whose salaries are paid by taxpayers, in league with a taxpayer-funded lobby, using taxpayer dollars to deny taxpayers free and proper elections is very, very troubling to me,” he said.

Not only does North Carolina law make it clear elections boards are independent entities, it also specifically bars elected officials and candidates for office from serving, Greene noted.

Three  of the five commissioners, Steve Odom, Billy Cable, Eugene Trull, are running for re-election in November.

Greene said that allowing county commissioners to interfere with the elections board would make the de facto members of the elections board.

“This sudden attempt to exert control over the elections board in an election year, for no valid reason, can easily give rise to the appearance of impropriety and looks like an attempt by the commissioners to exert undue influence over the election process,” she said. “They want to count their own votes.”

Last month, a superior court judged denied a motion by the elections board to dismiss the county’s appeal. The elections board claimed the appeal was moot, since the county had complied with the writ issued by Judge Baker.

County attorney David Sawyer said Superior Court Judge James U. Downs expressed the opinion the court of appeals should deal with the case because it would set a standard.

Both sides expect the case will take at least a year to work its way through the legal system.