Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.
The North Carolina State Board of Elections urges the state Appeals Court to uphold a lower court's ruling against a 2023 election protest from Pembroke Mayor Gregory Cummings.
Court orders in the case have allowed Cummings to remain in office nearly two years after he appeared to lose the 2023 election by 19 votes to challenger Allen Dial.
Cummings is considered the petitioner at the Appeals Court. Dial is an intervenor.
"The Superior Court below denied Petitioner's petition for judicial review and affirmed the State Board's decision denying Petitioner's protest appeal," state Justice Department lawyers wrote Monday. They represent the elections board.
"As the procedural history demonstrates, this protest has a long history in which it was remanded by consent from the Superior Court back to the county board to give Petitioner an opportunity to present his evidence before coming back through multiple appeals to where it is today," the court filing continued.
"Despite being given this opportunity to marshal his evidence many months after the election itself, the protest has been dismissed or denied at each stage because Petitioner has failed to show substantial evidence of a violation of election law or other irregularity or misconduct."
"The most recent denial came from the Superior Court sitting in an appellate capacity," the elections board's lawyers wrote.
"The Superior Court thoroughly reviewed the whole record, including all analysis, findings, and conclusions in the State Board's final decision. It concluded that Petitioner's request for additional evidence should be denied and affirmed that the State Board's Final Decision contained no error."
"Now, Petitioner brings many of these same arguments to this Court. He argues that the Superior Court's order should be reversed because it did not sufficiently address those meritless arguments, it did not order a new election, and it did not grant his motion for additional evidence," the court filing added.
"A review of the whole record reveals no error, either from the Superior Court or the State Board in the decisions below."
An all-Republican three-judge appellate panel issued an order in April effectively blocking certification of the 2023 mayor's race. Judges Julee Flood, Michael Stading, and Thomas Murry granted Cummings' request for a writ of supersedeas.
The writ blocked a lower court order that would have allowed election officials to certify Dial as the election's winner. Dial is a registered Democrat. Cummings is unaffiliated.
The challenger Dial leads the incumbent Cummings by 19 votes (197 to 178), according to State Board of Elections records of the November 2023 contest. But Cummings has been challenging those results for nearly two years. Cummings has continued to serve as mayor during the legal battle.
"Petitioner has not identified any errors of law" in a March 17 trial court order affirming the elections board's ruling against Cummings, Dial's lawyer wrote this spring.
The incumbent mayor raised questions about the eligibility of voters who cast ballots in 2023. He challenged enough voters to make a difference in the election's outcome.
"Notably, Petitioner did not challenge the findings of fact from the Robeson County Board of Elections order in his appeal to the North Carolina Board of Elections or his appeal to the Wake County Superior Court in this matter," Dial's court filing continued.
"In those findings of fact, the Robeson County Board of Elections found that there was evidence of only one voter who was ineligible to vote in the Town of Pembroke mayoral election. Intervenor was the witness who testified to that fact during the hearing," Dial's lawyer wrote.
"Most importantly, the Robeson County Board of Elections found as facts that Petitioner had no direct knowledge that any of the challenged voters lived outside the Town of Pembroke less than 30 days before the mayoral election, and that Petitioner offered no evidence that any of the challenged voters were in some other way ineligible to vote in the mayoral election," the court filing added.
"Intervenor was an elected member of Pembroke's Town Council for 16 years. Intervenor won the November 7, 2023 mayoral election in Pembroke, but because Petitioner (who was the incumbent) obtained a stay of the certification early in the election protest appeal process, Petitioner now has held the office of mayor for almost 17 months without being duly elected by town citizens," Dial's lawyer argued six months ago.
"Intervenor has been deprived of the opportunity to govern as he was elected to do," the court filing continued. That included the
"mayoral compensation package" estimated at $26,000 a year.
"A grant of supersedeas would cause irreparable harm to him."
"Intervenor asserts that the 'status quo' as it relates to this case is that Intervenor was elected appropriately and therefore should have assumed office," Dial's lawyer wrote.
"Petitioner's election protest and subsequent appeals prevented that from occurring. A grant of supersedeas would not preserve the status quo but further allow an unelected individual to remain in office."
Cummings offered a competing argument to appellate judges.
"Robeson County has a history of voting irregularities," Cummings' lawyers wrote. Dial
"was a candidate in 2013 and 2015 elections that were overturned as a result of voter misconduct."
Cummings has been fighting the election result since filing an official protest 15 days after Election Day. Dial intervened in the court proceedings in May 2024.
The Robeson County election board reviewed the dispute in July 2024.
"Testimony was given during the County Board hearing that certain voters in the Mayoral Election listed their residential address as an abandoned lot owned by Intervenor," Cummings' lawyers wrote.
"Voters associated with Intervenor's lot all registered to vote on 13 October 2023. Another voter listed her residential address as a restaurant owned by Intervenor. Other voters listed their residential addresses as housing that could not be verified as their residences."
Dial said he helped people living in a tent community register to vote, according to local media reports about the local elections board hearing.
The Robeson elections board ultimately dismissed Cummings' appeal on July 15, 2024. The state board followed suit in September 2024.
Cummings argued that a writ of supersedeas is proper because of
"extraordinary circumstances" and because
"it is in the interests of justice to preserve the status quo, during the pendency of this appeal."
The court filing accused the county and state elections boards of acting
"arbitrarily and capriciously."
Cummings and Dial have faced each other multiple times in Pembroke mayor's races. The state ordered a new election after their 2015 contest because of Cummings' concerns about voting irregularities.
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