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Where students sleep to determine County Commission election?

By Roger McCredie –

By the time this edition of the Tribune is on the street, the Buncombe County Board of Elections will be in the process of taking two actions that could have statewide repercussions and draw national attention to the ways in which some American voters are allowed to vote.

On November 28, the BOE is due to conduct a recount of votes cast in one county district during the Nov. 6 balloting for Buncombe County Council. Later that day the Board will also conduct a hearing to determine if there is “probable cause” to allow a formal protest of the result to be lodged by a candidate who, according to the original tallying process, first won and then lost.

In the Nov. 6 election, four candidates ran to fill two Council seats in District 2, which encompasses most of northern and eastern Buncombe County. The District 2 outcome would determine whether the new council would have a Republican or a Democratic majority. Republican Christina Merrill, who in the first tally appeared to have beaten out Democrat Ellen Frost by 85 votes, ended up finishing third after a canvass of voters showed Frost had surpassed her – by a margin of only 13 votes. (A canvass is a detailed examination of ballots to determine authenticity.) Following the canvass, Republican Christina Merrill and Democrat Carol Peterson, who finished third and fourth respectively, requested the recount. Peterson, who was an incumbent, has said she added her name to the request purely in the interest of transparency, to insure that the recount would go forward.

At a meeting of the Board of Elections held Nov. 16, Atty. Robert Peaslee, a Raleigh-based attorney, filed a protest on Merrill’s behalf. Peaslee specifically questioned the validity of 44 provisional ballots cast at Warren Wilson College and asked that the canvass be suspended while charges that the voters in question, all Warren Wilson students, met BOE residence eligibility requirements for voting in a local election. By a majority vote the BOE denied Peaslee’s request for a delay, but “segregated” the contested ballots in case an appeal is granted. Meanwhile the 44 votes were approved, thus tipping the totals in favor of Frost over Merrill.

Peaslee’s objection is based partly on the fact that the line between District 1 and District 2 bisects the Warren Wilson campus. Students receive their mail at the campus post office, in District 1, where the college is officially considered to be located, but college officials say the voters in question actually reside in dormitories that lie within District 2.

Objectors say that in allowing the 44 votes to count for that reason, the BOE relied on a state law that defines voters’ residence as “where they lay their head.” They point out that not only is this definition at odds with other provisions of state election law, but also that students are only in residence part of a year and usually change dormitories several times while in college, often during the same term. Also, the residence information supplied by some student voters differed from information on file in the college registrar’s office. The BOE, in validating these votes, used the registrar’s information rather than the students’.

The “Warren Wilson 44” issue raises the broader question of exactly what constitutes residence under state election law, as well as the possibility that students voting locally could already be registered in their respective precincts back home. Article VI of the North Carolina Constitution states that “any person who has resided in the State of North Carolina for one year and in the precinct, ward, or other election district for 30 days next preceding an election and possesses the other qualifications set out in this Article, shall be entitled to vote at any election held in this state.” (Of Warren Wilson’s 1,000 students, 90 per cent come from outside Buncombe county and 80 per cent from outside North Carolina. Forty-five states are represented by the student body, the main ones being California, New York, Florida, Pennsylvania, Georgia and Virginia.)

Jane Bilello of the Asheville Tea PAC (ATPAC) said, “How many of these students are [by state definition] legal residents of North Carolina and District 2? The Board of Elections doesn’t seem to care. These students voted here and their votes will change the course of history in this area for years to come, but most of them will go home [to their primary residences] and never return to Buncombe County again,” Bilello added.

A reinforcing factor in determining students’ voter eligibility, according to the college and BOE officials, was their “mental intent” to make Buncombe County their home after graduation. It was not clear how such an intent, which is another criterion of state election law, could be either binding or relevant.

Merrill, her supporters and some observers have complained that the questions raised by the vote-counting process, especially those centered around the Warren Wilson residence definition, should have been resolved before a recount was conducted, rather than after the fact, and have already expressed doubt that the BOE, having already ruled that the challenged votes are valid, is likely to change its mind and allow an appeal. This means that Merrill, who is determined to pursue the issue, will have to do so by litigation financed out of her own pocket. Contributions to a legal fund to help offset her expenses are already being sought and made. “Residents of Buncombe County deserve to be treated fairly and not have their nearly 20,000 votes basically invalidated because a handful of provisional votes were not validated properly,” Merrill says.

Frost, who at the moment is the apparent victor in the District 2 race, has said that she believes she won the Council seat fair and square but has no objection to the recount itself. “I’m sure anybody would do the same thing,” she was quoted as saying.

Re-examination of the Warren Wilson votes, how they were cast and the criteria used to determine whether they met voter registration requirements, could have implications for student voting not only in Buncombe County but for institutions of higher learning statewide and, by extension, even nationally. Local critics have said that at the very least the BOE’s approach to tallying the provisional votes points to an urgent need for voter ID reform at the state level.

Next Week: Results of the recount and hearing, where complainants plan to go from here, and an examination of North Carolina’s voter residence requirements.

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