Election appeal on tap

Published 11:00 am Tuesday, June 5, 2018

RALEIGH – Nearly two months after being disqualified as a candidate for the office of Bertie County Sheriff based on a challenge of his residency, Adrian Bowen’s appeal will be heard here tomorrow (Wednesday).

The Bipartisan State Board of Elections & Ethics Enforcement is scheduled to hold a meeting by teleconference to hear two appeals from the recent Primary election, of which Bowen’s plea is included.

Meanwhile, the attorney for the Bertie County resident who initiated the candidacy challenge against Bowen has filed a motion to dismiss the appeal based upon Bowen’s lopsided loss in the May 8 Democratic Primary.

An attachment to Wednesday’s meeting agenda sent to this newspaper by the State Board of Elections & Ethics Enforcement included a May 22 letter written by Paul Faison S. Winborne of the Dixon & Thompson Law Firm. In that letter, Winborne referenced the matter of the candidate challenge brought by his firm’s client, Vivian Clarke, and requested the State Board to dismiss Bowen’s appeal based on “mootness.”

Winborne wrote in the letter that, “according to unofficial, uncertified results of the election on the State Board of Elections website, Candidate Bowen received 29.19 percent of the vote, and his opponent [incumbent Bertie Sheriff John Holley] received 70.84 percent of the vote.”

In raw numbers, the unofficial tally from the May 8 Primary was 2,641 votes for Holley and 1,087 votes for Bowen.

“Given the lopsided unofficial election result, the issue of Candidate Bowen’s residency has been rendered moot at this point as it appears he was not successful in the election,” Winborne wrote in the letter. “No party has alleged that the unofficial results in any way ‘affected a sufficient number of votes to change the outcome of the election’ as stated in N.C. Gen. Stat. 163A-1181(a). The appeal of Candidate Bowen has been rendered moot at his point and should be dismissed.”

Due to the fact that Bowen’s appeal of the decision reached April 17 by the Bertie Board of Elections to disqualify him as a candidate could not be heard by state officials prior to the May 8 Primary, they did grant him a motion that postpones the certification of the Bertie County Sheriff’s race until the appeal is heard. That motion was granted by the State Board on May 3.

The motion prohibits the Bertie Board of Elections from the following:

(A.) Canvass the votes for the primary election for the Democratic nominee for the office of the Sheriff of Bertie County pursuant to N.C.G.S. §163A-1172; and

(B.) Certify the results of the primary election for the Democratic nominee for the office of the Sheriff of Bertie County pursuant to N.C.G.S. §163A-1184.

In the motion, Bowen’s attorney requested said relief be effective immediately and continue until the 10th day after the final decision of the State Board on his pending appeal unless otherwise ordered by the State Board or any court obtaining jurisdiction.

In asking for a delay in certifying the election results, Bowen’s attorney, M. Brad Hill of Hill Law, PLLC in Cary, wrote: “There is no statutory authority vesting the State Board with the power to revoke a certificate of election once it has already been issued.”

A phone call placed yesterday (Monday) by this newspaper to the Bertie County Board of Elections confirmed that no action (canvass or certification) has been taken on the Primary election results for the office of Bertie County Sheriff.

“We haven’t touched it,” said Bertie Board of Elections Director Shelia Holloman, referencing the outcome of the Sheriff’s race.

The “moot” issue, due to the election’s outcome, was also addressed on May 3 by Lloyd Smith, a Windsor attorney who represents the Bertie Board of Election.

“The [Bertie) board’s position is that your board [State Board of Elections & Ethics Enforcement] does have the authority to enter a stay,” said Smith, according to the minutes of the May 3 meeting. “And since Mr. Bowen’s name is on the ballot, if he wins the election the stay should be imposed. If not, we believe the question is rendered moot and there shouldn’t be a stay if the other candidate wins.”

Bowen’s attorney had a different opinion.

“I would have to disagree that it’s rendered moot,” stated Hill in the minutes. “And the reason for that is that Mr. Bowen, should he win his appeal, ultimately has the option to petition for a new election.”

Additionally, if the State Board on Wednesday upholds the earlier decision made by the Bertie Board of Elections, Bowen can appeal to the N.C. Court of Appeals.

Bowen, who filed for Bertie Sheriff in late February, was the subject of a candidate challenge brought by Clarke. She claimed that Bowen did not reside in Windsor, but rather in Elizabeth City.

About Cal Bryant

Cal Bryant, a 40-year veteran of the newspaper industry, serves as the Editor at Roanoke-Chowan Publications, publishers of the Roanoke-Chowan News-Herald, Gates County Index, and Front Porch Living magazine.

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