Elections--refusal to disclose vote--failure to show effect on outcome--referendum not
invalidated
The trial court did not err by concluding that petitioners are not entitled to a new election
with regard to the City of Concord Mixed Beverage Referendum based on petitioners' failure to
meet their burden to show that absent the alleged voting irregularities the referendum would have
failed, because: (1) petitioners did not present any new evidence as to the five undisclosed illegal
votes, and the Court of Appeals cannot speculate as to a possible result; and (2) petitioners have
not set forth evidence that they objected to the five voters' failure to testify or that they attempted
to compel such testimony.
IN RE APPEAL OF JAMES E. RAMSEUR AND R. GENE LENTZ FROM THE
DECISION OF THE CABARRUS COUNTY BOARD OF ELECTIONS AND THE
PROTEST OF THE CITY OF CONCORD MIXED BEVERAGE REFERENDUM
CONDUCTED MAY 3, 1994 &nbs
p;
Cecil R. Jenkins, Jr. for petitioner appellants.
Attorney General Michael F. Easley, by Special Deputy Attorney
General Susan K. Nichols, for the State Board of Elections,
appellee.
Everett, Gaskins, Hancock & Stevens, by Hugh Stevens, for
respondent appellees.
LEWIS, Judge.
Petitioners appeal a superior court order affirming a decision
of the State Board of Elections, which adopted the Cabarrus County
Board of Election's recommended decision that no new election be
conducted with regard to the City of Concord Mixed Beverage
Referendum. This is the second appeal of this case to this Court.
A comprehensive recitation of the facts and procedural history isset forth in In re Appeal of Ramseur, 120 N.C. App. 521, 463 S.E.2d
254 (1995) ("Ramseur I"), the first appeal brought by petitioners
in this case. A mixed beverage referendum was conducted in and for
the City of Concord on 3 May 1994. A recount of the votes on 5 May
1994 showed 5000 votes cast in favor of the sale of mixed beverages
and 4997 votes cast against the sale of mixed beverages. Id. at
522, 463 S.E.2d at 255.
On 13 June 1994, the Cabarrus County Board of Elections
("County Board") found that ten ineligible persons had voted in the
referendum. Id. When these ten voters were questioned as to how
they voted, five declined to tell, three said they voted in favor
of the proposition and two said they voted against it. Id. at 523,
463 S.E.2d at 255. As a result of these discovered irregularities,
the County Board sent its recommended decision for a new election
to the State Board of Elections ("State Board"). Id. On 16 June
1994, proponents of the referendum appealed to the State Board,
which denied the County Board's recommended decision for a new
referendum and certified the referendum results. Id. at 523, 463
S.E.2d at 256. The superior court affirmed the State Board's
certification of the referendum results. Id. Thereafter,
petitioner appellants filed their first appeal before this Court.
The appellants in Ramseur I argued that if the illegal votes
could have altered the results of the referendum, a new electionwas required. Id. at 524, 463 S.E.2d at 256. Specifically,
appellants contended that because five of the ten illegal voters
refused to disclose their vote, there was no way to ascertain what
the results of the referendum would have been absent the illegalvotes. Id. As a result, appellants argued a new referendum was
required. Id. at 524. In Ramseur I, we clarified appellants'
statement of the applicable rule: "An election or referendum
result will not be disturbed for irregularities absent a showing
that the irregularities are sufficient to alter the result. The
burden of proof is upon the unsuccessful candidate or the opponents
of a referendum to show that they would have been successful had
the irregularities not occurred." Id. at 525, 463 S.E.2d at 256-
57. Applying this rule to the facts in Ramseur I, we stated:
Here, four out of the five illegal voters who
refused to disclose their votes would have had
to testify that they voted in favor of the
referendum in order for appellants to prevail.
. . . [F]ive of the ineligible voters refused
to disclose their vote and appellants did not
attempt to compel those voters to testify. At
this point, there is no way to determine
whether, absent the ten illegal votes, the
referendum would have failed.
Id. at 525-26, 463 S.E.2d at 257. We also noted that while an
honest elector enjoys the privilege of refusing to disclose his
vote, “'[i]f an illegal voter can claim the privilege at all, it is
because he finds shelter under the very different principle that he
cannot be compelled to criminate himself.'" Id. at 526, 463 S.E.2d
at 257 (quoting Boyer v. Teague, 106 N.C. 576, 625, 11 S.E.2d 665,
679 (1890)). Because appellants in Ramseur I neither objected to
the failure of the five ineligible voters to testify how they
voted, nor attempted to compel the five voters to testify, we
concluded appellants had not met their burden of proof. Id.
Despite appellants' failure to establish error on that issue,Ramseur I was remanded for consideration of oth
er voting
irregularities. The County Board conducted another review of the
referendum and discovered that both an extra ballot from a previous
election and an extra absentee ballot had been included in the
previous vote count of 5000 votes for and 4997 votes against.
Subtracting these ballots changed the referendum results to 4999
votes in favor and 4998 against. This was the only error found on
remand.
In the present appeal, appellants' argument is as follows. In
order to determine the actual number of votes cast on remand, the
State Board had a duty to subtract the five disclosed illegal votes
from the total count. When these five votes are subtracted, the
result is a tie -- 4996 in favor and 4996 against. Because no
majority prevails, the referendum proposition fails. As such, the
irregularities are sufficient to alter the outcome of the election
so that a new election is required. The five remaining illegal
votes which have not been disclosed are irrelevant, although it is
not clear under what authority. We need only turn to Ramseur I to
conclude that appellants' argument is without merit.
Although appellants do not address the appropriate standard of
review in the present appeal, the core of their argument is that
the State Board's decision was based on several errors of law.
N.C. Gen. Stat. § 150B-51(b)(3), (4) (1999). As such, our standard
of review is de novo. Brooks v. Ansco & Associates, 114 N.C. App.
711, 716, 443 S.E.2d 89, 92 (1994).
Contrary to appellants' assertions, the five undisclosedillegal votes are critical to the outcome of this appeal.
To
reiterate our point in Ramseur I, in order to meet their burden,
appellants must be able to show that the referendum result would
have been different had the voting irregularities not occurred.
Ramseur I, 120 N.C. App. at 525, 463 S.E.2d at 257. This rule
requires certainty; precisely, appellants here must establish that
three out of the five ineligible voters who refused to disclose
their votes voted in favor of the referendum in order to meet their
burden. Without disclosure of these five votes, we are not able to
determine with certainty whether the voting irregularities are
sufficient to alter the result. Indeed, the five undisclosed votes
could possibly cause the outcome to go either way. In failing to
present any new evidence as to the five undisclosed illegal votes,
appellants have asked us to speculate as to a possible result.
This is not sufficient under our law.
In 1996, N.C. Gen. Stat. § 163-33(3) (Supp. 1998) was amended
to prohibit a board of elections from considering as evidence the
testimony of an ineligible voter as to how he voted. At the time
of the referendum in this case, however, no law prohibited a board
of elections from considering such evidence. Nonetheless, the
issue of disclosure is not before us, as appellants have not set
forth evidence that they objected to the five voters' failure to
testify or attempted to compel such testimony.
We conclude appellants have not met their burden to show that
absent the voting irregularities, the referendum would have failed.
Accordingly, the superior court correctly concluded appellants arenot entitled to a new election.
Affirmed.
Chief Judge EAGLES and Judge EDMUNDS concur.
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