In re Protest by Rocky Midgette of 2 November 1993 Manteo Town Election

450 S.E.2d 519, 117 N.C. App. 213, 1994 N.C. App. LEXIS 1217, 1994 WL 679782
CourtCourt of Appeals of North Carolina
DecidedDecember 6, 1994
DocketNo. 9410SC332
StatusPublished

This text of 450 S.E.2d 519 (In re Protest by Rocky Midgette of 2 November 1993 Manteo Town Election) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Protest by Rocky Midgette of 2 November 1993 Manteo Town Election, 450 S.E.2d 519, 117 N.C. App. 213, 1994 N.C. App. LEXIS 1217, 1994 WL 679782 (N.C. Ct. App. 1994).

Opinion

GREENE, Judge.

Dellerva W. Collins (Ms. Collins) appeals from an order entered 4 February 1994 in Wake County Superior Court, affirming the State Board of Elections’ (the State Board) 23 November 1993 decision directing that an additional forty-one votes for write-in candidate Rocky Dillon Midgette (Rocky Midgette) be certified by the Dare County Board of Elections (the County Board) for the 2 November 1993 town election for three seats on the Manteo town board.

On 2 November 1993, the town of Manteo, North Carolina, had a general election to elect three town commissioners by plurality vote. Ms. Collins, Edward C. Etheridge, and Lee Tugwell filed as candidates [214]*214and were listed on the ballot while Rocky Midgette was a write-in candidate. On 3 November 1993, Rocky Midgette wrote a letter to the chairman and supervisor of the County Board, stating that although 152 votes were attributed to him, “41 ballots were set aside because the precinct could not figure out whether they should be counted or not.” He asked the County Board to count the forty-one votes for him.

The County Board met on 4 November 1993 to canvass the votes and determined that thirty-six ballots which were punched in the proper place but did not have a name written on the ballot should not be counted because the directions on the ballot stated that a name must be written in. The County Board also determined that several ballots on which voters wrote “R. Midgette,” “Rocky,” “Midgette,” or some other abbreviation of Rocky Midgette’s name should not be counted. The County Board therefore dismissed Rocky Midgette’s complaint for lack of probable cause and determined that the official canvass results for town commissioner were 254 votes for Edward Etheridge, 254 votes for Lee Tugwell, 185 votes for Ms. Collins, and 162 votes for Rocky Midgette.

Rocky Midgette filed a complaint with the County Board and protested the following alleged violations and .misconduct:

(1) Precinct officials and the Board of Elections refused to count several ballots on which voters wrote “R. Midgette”, “Rocky”, “Midgette” or some other, similar abbreviations of Rocky Midgette’s name. Those votes should have been counted because the voter expressed a clear intent to vote for Rocky Midgette. Although the name was not written out completely and there are other citizens in town named Midgette, no other Midgette was actively seeking the town commissioner’s office.
(2) Approximately 36 ballots were rejected and not counted at all because the voter had punched next to place 70 on the punchcard ballot but had not written in Rocky Midgette’s name. . . . Because 70 was the place to vote for write-ins, campaign material for Rocky instructed voters to punch next to 70, and there was no other write-in candidate in the election, it is clear that the voters’ intent in punching out 70 was to vote for Rocky Midgette.

Rocky Midgette requested that all ballots with a variation of his name and the thirty-six ballots on which place 70 was punched be counted for him and added to his total.

[215]*215The County Board held a hearing on 13 November 1993 and by order dated 16 November 1993, made the following findings of fact based on testimony from Rocky Midgette and several voters and the affidavits of several voters:

5. Rocky Midgette ran an active campaign for town commissioner. He set up approximately 500 posters, distributed 1,000 flyers, mailed over 500 postcards to voters, visited homes, ran display ads in the newspaper, spoke at candidates’ forum sponsored by League of Women Voters, and had workers telephone voters.
6. Rocky Midgette’s campaign material directed voters to cast a write-in vote for him by punching 70 on the ballot and writing in his name.
7. No other person was actively campaigning as a write-in candidate for town commissioner, and no other person named Midgette or Midgett or Rocky was running as a candidate in the town election or otherwise actively seeking votes for town office.
10. . . . Each [voting] booth included a plastic holder containing a booklet listing the names of candidates and the number of the space on the ballot to be punched for each candidate.
12. Lines 70, 71 and 72 in the booklet were identified as spaces for write-in candidates for town commissioner.
13. The instructions printed on the top of each ballot indicated that to vote for a person whose name is not on the ballot, you were to write in on the ballot in the space provided, the number for the office and the person’s name you wanted to vote for.
18. One ballot had space 70 punched for a write-in and “Rocky” written on it. Two ballots had space 70 punched for a write-in and had “R. Midgette” written on them. Two ballots had space 70 punched for a write-in and had “Midgette” written on them. These ballots were not counted.
19. On 36 ballots, the voters punched place 70 on the ballot but wrote no name or number on the ballot. Those ballots were not counted.
[216]*21624. At the November 13th hearing, 5 voters testified and 13 voters had affidavits presented which indicated they punched space 70 on their ballots but did not write anything on the ballot itself. These voters indicated that they either mistakenly wrote Rocky Midgette’s name in the booklet on line 70 or did not believe it was necessary to write his name anywhere because it was already written in the booklet on line 70.

Based on these findings of fact, the County Board concluded it properly excluded one ballot with space 70 punched and “Rocky” written on it, two ballots with space 70 punched and “R. Midgette” written on them, two ballots with space 70 punched and “Midgette” written on them, and thirty-six ballots with space 70 punched but no name written on them. The County Board therefore dismissed Rocky Midgette’s complaint.

Rocky Midgette then appealed to the State Board which, after considering the Board’s findings of fact and conclusions of law, all submissions previously distributed to all State Board members, and verbal presentations before the County Board and the State Board, rejected the County Board’s order. By decision and order entered 23 November 1993, the State Board ordered that “the 41 questioned votes for write in candidate Rocky Midgette be certified by” the County Board.

On 3 December 1993, Ms. Collins filed a petition with the State Board to reconsider its 23 November 1993 decision; however, on 9 December 1993, the State Board, by letter, informed her that it would not reconsider its decision. On 15 December 1993, Ms. Collins, pursuant to N.C. Gen. Stat. § 150B-43, appealed the 23 November 1993 and 9 December 1993 decisions of the State Board to Wake County Superior Court. On 22 December 1993, she filed an amendment to her petition to except to the failure of the State Board to include findings of fact and conclusions of law “in contravention of N.C.G.S. Section 150A-36” and requested that “the matter be remanded to the State Board ... for appropriate findings of fact and conclusions of law.” On 22 December 1993, she also filed a motion to remand for findings of fact and conclusions of law.

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450 S.E.2d 519, 117 N.C. App. 213, 1994 N.C. App. LEXIS 1217, 1994 WL 679782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-protest-by-rocky-midgette-of-2-november-1993-manteo-town-election-ncctapp-1994.