Christina Merrill, who first apparently won and then apparently lost the District 2 Buncombe County Commission seat in the Nov. 6 elections, has announced she will now take her case into state superior court.
Merrill’s move comes after she was denied appeals of the voting results, first by the local Board of Elections, then, on Dec. 13, by the State BOE in Raleigh. Merrill has ten days from that date to lodge her appeal, which would be heard by Wake County Superior Court in Raleigh, and she says she is on track to meet the deadline to have her appeal docketed.
According to state BOE officials, it is likely that Merrill’s appeal will not be heard until January. Meanwhile, as Merrill’s case goes forward, the apparent victory of her rival, Ellen Frost, cannot be certified and Frost cannot be seated. Furthermore, should the superior court reject Merrill’s appeal, she would still have recourse: she would have the right to appeal the superior court’s decision to the appellate courts. If Merrill were to prevail at the appellate level, a writ of error would return the case to the Buncombe County BOE, where it originated, and a full-scale hearing with witnesses and evidence would take place.
Merrill’s case centers around the fact that a block of provisional ballots cast at Warren Wilson college and belatedly admitted during the vote canvass following the election changed the outcome of the District 2 race. On election night it appeared that Merrill had won her seat by 87 votes. The amended tally put Frost in the lead by 13 votes. A quick recount increased Frost’s lead to 17 votes. Then a random two-precinct recount returned the difference to 13 votes. Finally a full hand-eye recount of county returns put Frost ahead by 18 votes and the results were declared official. At that point Merrill began her appeal process.
The Merrill-Frost contest has wider implications: whoever ultimately wins will determine which party has a majority on the Commission. Frost and fellow Democrats are now complaining that Merrill is being unreasonably obstructive and needs to admit defeat and let a duly seated board begin doing business. Republicans point out that the validity of the Warren Wilson votes was challenged in the first place because of questions over whether some students met eligibility requirements, and that the appeals procedure would not have been necessary if the local BOE had addressed and resolved these questions in the first place, before any recounts were undertaken.
Meanwhile, at its Dec. 19 meeting, the local BOE is scheduled to review formal complaints that have been lodged by poll workers at two other precincts, alleging that they observed irregular or improper precinct management on Election Day. Both precincts are located in Black Mountain.
In November Phyllis Parker, who is a Republican Judge at Precinct 34.1 (Lake Tomahawk), e-mailed local BOE member Robert Van Wagner (also a Republican) detailing election day events at the precinct which she felt were at odds with precinct procedures. In particular, she says, she was ordered to take the M-100 preliminary tally card to Asheville – something she told Van Wagner she had not been asked to do in many years of precinct work – instead of remaining to help count and close the precinct. When she asked who would help with the counting, the precinct’s Chief Judge (a Democrat) said the assistant Republican judge would help count. Parker says that when she left, the black box containing the provisional ballots was on the floor opened and unsealed. Parker also said she was later told by the assistant Republican judge that she and all other workers were dismissed by the Chief Judge soon after she (Parker) left, leaving the Chief Judge to close up. “I think it would be wise to review all records and reports from that precinct,” Parker told Van Wagner.
Karen Brinkman, an Assistant Republican Judge at precinct 33.2 (Black Mountain Primary School) issued a complaint centered on general failure to observe proper procedures and lack of proper oversight throughout Election Day. Her complaint says she observed that workers apparently had not been properly trained to do their respective tasks and seemed unfamiliar with equipment, from computers to the M-100 voting machine itself. Brinkman’s complaint does not suggest a review of precinct records, but charges that “all manner of rules were bent or broken, just in terms of correct voting procedure.”
Van Wagner said Brinkman’s complaint would probably not impact Merrill’s appeals process, but that since the Lake Tomahawk issue involves actual vote handling, “anything could happen.”