My turn: The SBOE has turned the State's motto inside out | Eastern North Carolina Now

    Publisher's Note: This article originally appeared in the Beaufort Observer.

They are fooling none but themselves

    The N. C. Board of Elections (SBOE) is making a mockery of the State's motto: Esse quam videri - To be, rather than to seem.

    Here's the context:

    N. C. General Statute 163-39 says:

    No individual subject to this Article (appointed elections officials and their employees) shall:

    (1) Make written or oral statements intended for general distribution or dissemination to the public at large supporting or opposing the nomination or election of one or more clearly identified candidates for public office.

    (2) Make written or oral statements intended for general distribution or dissemination to the public at large supporting or opposing the passage of one or more clearly identified referendum proposals.

    (3) Solicit contributions for a candidate, political committee, or referendum committee.

    Individual expressions of opinion, support, or opposition not intended for general public distribution shall not be deemed a violation of this Article.(emphasis added)

    On October 17, 2017, acting as an individual expressing my opinion, I spoke up at a Beaufort Patriot TEA Party meeting in support of Greg Brannon for US Senate. I did not speak or act on behalf of or as a member of the Beaufort County Board of Elections. When the endorsement by the TEA Party of Greg Brannon was announced my name and participation were not mentioned. But for these actions, on December 20, 2013 the State Board of Elections retracted its appointment of me to the Beaufort County Board of Elections. It did so after a "kangaroo court" hearing that was obviously biased and unjust.

    Here's the problem as I see it: The State Board of Elections is running a sham as far as elections integrity is concerned. Every reasonably informed person who knows anything about elections administration knows two things: Those who oversee elections are political appointees  -  they get that position as a result of their political activities and virtually every one of them continues their political activity after being appointed in that they favor some candidates and disfavor others. That is simply the reality of the situation and everyone with knowledge of the system knows this.

    You just cannot remove "politics" from elections. We would dare say that every election official has political favoritism. It is foolish to say that if that favoritism is hidden it does not exist.

    But the State Board of Elections chooses to put up a facade that because election officials don't openly support specific candidates that they are totally unbiased. That is a ridiculous charade.

    The law dealing with this is clear. Elections officials may not "make written or oral statements for general distribution or dissemination to the public at large supporting or opposing the nomination of one or more clearly identified candidates for public office..." but they may do so as an "individual expression of opinion, support or opposition not intended for general public distribution..." That's pretty straight-forward. There is, in my opinion, nothing wrong with the statute. The problem comes in the way the State Board of Elections implements it.

    The board pretends that election officials don't have political preferences. The essence of their position is that there will be no perception of bias if election officials simply HIDE their positions. It's as if the SBOE has re-written the state's motto to say: "It will be if it seems to be." The essence of their position is that if you hide the bias it does not exist. That's abusrd.

    Consider an analogy. If we were to accept the SBOE reasoning and apply it to judges and prosecutors we would say that as long as a DA or judge does not talk about a conflict of interest they may have in a case before them that that makes them unbiased to try the case, even though they may be directly and personally involved in the case. For example, suppose the defendant in a case is a former business partner of the judge and the DA's ex-spouse. Under the reasoning of the SBOE, as long as neither the judge or the DA talk publicly about the business associate or ex-spouse then the defendant got a fair trial. Hogwash!

    It's the same thing if an engineer is brought before the state's engineer oversight board that has members who have maliciously maligned the person being "tried" but have just not done so in the media  -  only in a back room.

    The problem here is obvious. The SBOE, and the engineer oversight board in our example, are not actually unbiased, but simply camouflage there bias. The same applies to other boards and commissions who sit in judgment of individuals, issue permits or any number of other cases where objectivity is essential.

    The need is for the state to operate in accord with its motto: Fairness should BE, not seem to be.

    A much better way to insure fairness, and the perception of fairness, is disclosure. Rather than follow a policy of enforced hiding of reality the policy should be one of putting reality out in public view for all to see.

    In our illustration above, the judge would simply disclose that the defendant was a business associate with whom he had had a falling out. The DA would disclose that the defendant is an ex-spouse and then there should be a process by which the defendant can challenge the fitness of the judge/DA to serve in the case. And the adjudication of such challenges should be based on objective assessment of the alleged bias and a determination made not on whether the bias was expressed but rather on whether it had, or could reasonably be expected to have, an actual effect on the outcome of the proceeding.

    In election administration it would go something like this. If a candidate made an appeal to a local board of elections about the way an election was conducted, the candidate would have the right to know the position of the board members hearing the appeal (i.e., did they support his/her opponent). Once disclosed, the candidate should be able to offer evidence to show that the bias of the election officials hearing the appeal was influenced by their political position. And that, in a hearing the facts should prove the bias, not how well the board members hide their positions.

    This is really not a novel idea. Bias in judicial proceedings is an age-old issue. Can a white person sit on a jury that is trying a black defendant and still make a fair decision? Of course they can. And if a white defendant tried to claim that a black juror was biased then that defendant should have to show that the juror's race had an actual effect on their decisions. Of course the same would be true of other classifications, such as gender, sexual preference, religion, or even cultural values etc.

    A much better way to insure fairness, and the perception of fairness, is disclosure. Rather than follow a policy of enforced hiding of reality the policy should be one of putting reality out in public view for all to see.

    You just cannot remove "politics" from elections. We would dare say that every election official has political favoritism. It is foolish to say that if that favoritism is hidden it does not exist.

    In fact, it is much more dangerous to the impartial operation of elections to hide the true positions of officials than it is to disclose them and then deal with their impact on the process.

    Allow me to offer another example. Assume a candidate challenges the determination a 3-member board of elections made in ruling on the acceptance of a provisional ballot (one upon which there is dispute of its validity). Suppose two members of that board had worked for the candidate's opponent in the election. One of those two did so openly, the other did so secretly. Now, which is more or less qualified to rule on those provisional ballots?

    I would contend that the qualification of both members does not turn on their support of the candidate's opponent, but rather on the rational process used to assess the ballots. The application of the reasoning that a particular ballot is accepted and another rejected should be reviewable. And to be reviewable, the reasoning used to make the judgment must be disclosed. Such an open and transparent approach is much better than contending that one board member (who disclosed his preference) is less qualified than another who kept his secret.

    What our SBOE has done is turn the state's motto upside down, inside out. It should set about correcting that or the Legislature should fix the problem. What should be done is to change the system to make it transparent, not hide the truth. The truth is that election officials are political animals. To pretend they are not, is dishonest. The public knows this. Apparently the five members of the SBOE are the only ones that don't.

    Governor McCrory should step in and direct not only the SBOE to adhere to the state's motto, but he should order all appointees in his Administration to do likewise.

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