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County BOE finishes complete commission race vote recount


By Roger McCredie –

Results are now official … unless they aren’t.

After an initial vote count, a machine recount, a random-district recount and finally a comprehensive recount of all votes cast, the Buncombe County Board of Elections has officially done with the business of tallying the results of the November County Commission election and the matter is closed.

Except it isn’t.

Before the final tally can be certified, the State Board of Elections must rule on a formal protest lodged by Republican District 2 candidate Christina Kelley G. Merrill, challenging the manner in which the BOE dealt with provisional votes cast by students at Warren Wilson College. If the state BOE upholds the apparent victory of Merrill’s opponent, Ellen Frost, Democrats will retain their majority on Commission. If Merrill should succeed in reversing that result, Republicans would have a majority.

The BOE’s verdict could also have ramifications for determining how the State determines voter eligibility with regard to residence, and could conceivably lead to examination of similar criteria in other states as well.

Four candidates vied for the two open seats on County Commission. Initial returns showed Republican Mike Fryar in first place with 19,904 votes, but only 203 votes separated him from last-place finisher, incumbent Democrat Carol Peterson. In the middle, on election night, Republican Christina Kelley G. Merrill’s total stood at 19,806, showing that she had apparently edged out Democrat Ellen Frost by 87 votes. Subsequently, a number of provisional and absentee ballots that had previously been segregated, including 176 provisional votes cast by students at Warren Wilson College, were introduced into the mix, resulting in Merrill and Frost changing places, with Frost now the apparent victor by 13 votes.

In a race that close, state election law mandates an automatic canvass – a second counting of the ballots. And from that point, things began to get interesting – and complicated.

At the canvass meeting on Nov. 16, atty. Robert Peaslee filed a formal protest on Merrill’s behalf, asking that the canvass be set aside while the BOE reexamined the validity of the Warren Wilson votes in particular. Objection to the Warren Wilson votes centered on two points: first, whether the student voters in question should properly be considered residents of District 2, where some college dormitories are located, or District 1, where the college post office and administrative offices are located. (The district dividing line runs along Warren Wilson Road, bisecting the campus.); and, secondly, whether some out-of-town students might be registered in their home districts and therefore should properly have voted by absentee ballot there instead of locally.

Ultimately the BOE rejected Merrill’s protest along party lines – two Democrats voting to deny and one Republican voting to allow. The majority applied the concept that voters reside “where they lay their heads,” and also cited a precept that allows student voters to consider themselves full-fledged residents if they have a “mental intent” of continuing to reside in their district in the future, even after graduation. The canvass thus went forward and the results upheld all 176 of the Warren Wilson votes as “good”, including 44 votes that the BOE itself had previously set aside for possible further examination because they appeared to be improperly completed or, in some cases, were not signed. The totals now showed that the gap between Frost and Merrill had widened from 13 to 17 votes.

Then Merrill asserted her right to a further recount. This time the BOE examined two voting districts chosen at random –Avery’s Creek and Black Mountain – to see whether any further discrepancies emerged. They did. Fryar’s and Peterson’s totals had changed by a few votes each, though not enough to affect their outcomes, while the Frost-Merrill vote difference was now exactly where it had been in the first place: 13. The anomalies were enough to trigger a full-scale, county-wide, hand-eye recount of all Commission votes cast. BOE recount teams began working on Thursday, December 6, and finished late the next day. When the dust settled, Frost’s lead over Merrill had extended from 13 to 18 votes.

This Thursday (Dec. 13) as the Tribune goes to press, Merrill will appeal her case to the State Board of Elections, the fulcrum of her protest being the validity of the Warren Wilson votes. The state Board, which is appointed by the governor and is also presently composed of two Democrats and one Republican, has said that results of the county-wide recount cannot be certified until after it has decided Merrill’s case.

Meanwhile the other new Council members have been seated. Frost, who had remained silent except to say, early on, that Merrill had a right to request a recount, recently stated that her opponent is attempting to disenfranchise the Warren Wilson voters. Her attorney, Robert Deutsch, has been quoted as saying, “How is it unfair that people actually voted where they lived, as is required?” Deutsch is a past member of the Warren Wilson Board of Trustees.

“I have two college age sons,” Merrill told the Tribune. “I would be the last person to try to keep college students from voting. That’s not what this is about. It’s about voting and counting votes in accordance with rules. We’ve spent a ton of time and taxpayers’ money on this matter, and we need to follow through and make sure it gets the fair and thorough hearing it deserves,” she said

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