N.C. Legislature begins process of picking schools chief

By: - June 23, 2005 5:42 am

The Dispatch 

Associated Press Writer

A legislative committee created to recommend a winner in the state schools superintendent race should be wary of outside influences in their decision-making, the panel’s attorney said Wednesday.

The 10-member joint select panel, meeting for the first time, is charged with examining whether Democrat June Atkinson or Republican Bill Fletcher received the most legal votes in their race last November for superintendent of public instruction.

Atkinson leads Fletcher by 8,535 votes from more than 3.3 million cast, but Fletcher has said that thousands of certain provisional ballots should be thrown out.

Committee members may want to abstain from seeking outside help on making a decision or even talking to the candidates or their lawyers about the case, said Bob Joyce, a lawyer and election expert from the University of North Carolina’s Institute of Government.

Panel members "should conduct themselves with the greatest discretion, as a judicial body might," Joyce said during the nearly 90-minute meeting. The legislators should stick "to the record and arguments that come before you."

The Legislature formed the committee after Atkinson asked lawmakers to intervene and choose the winner after months of litigation.

The General Assembly created a law this year that laid out the method by which it could resolve a Council of State race. The committee will make a recommendation to the full Legislature, which will then meet in joint session and vote for the winner. The North Carolina constitution gives legislators the authority to do so.

Atkinson would appear to have the advantage in a joint ballot because 92 of the 170 legislators are Democrat. A committee co-leader said the proceedings should be taken very seriously.

This will be the first time in at least 170 years that lawmakers have determined a winner for a statewide office.

"It’s a very important constitutional role that we have and are about to undertake," said Sen. Dan Clodfelter, D-Mecklenburg, committee co-chairman.

Fletcher argues that out-of-precinct provisional ballots cast on Election Day were illegal and should be removed from the totals for each candidate. He also said the method shouldn’t apply retroactively to the superintendent’s race.

The meeting was largely procedural, laying out the history of the contest to the panel of six Democrats and four Republicans. The panel also agreed to hold its formal hearing on the election July 14, with July 15 available if more time is needed.

The two candidates and their lawyers will be allowed to make their case before the panel, which also will be allowed to call and question witnesses. Neither Fletcher nor Atkinson expects to ask the panel to call more than one witness, a State Board of Elections official.

Atkinson, who attended the meeting, also Wednesday formally filed her petition with the Legislature to explain why she is the winner. Her arguments come down to two simple points: she has the most votes and the out-of-precinct provisional ballots are legal.

Fletcher, who didn’t attend Wednesday, now has five days to respond.

The state Supreme Court ruled in February that those ballots were unlawful, but the General Assembly soon after passed a law reaffirming an earlier statute that it said intended election officials to count these votes.

Sen. Austin Allran, R-Catawba, also asked whether panelists should refrain from talking to the media about the case – much like a jury in court. Use you discretion, another committee leader told him.

"The First Amendment applies to this committee," said Rep. Deborah Ross, D-Wake. At the same time, she added, "we are attempting to move forward with all decorum and dignity."

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Chris Fitzsimon

Chris Fitzsimon, Founder and Executive Director of N.C. Policy Watch, writes the Fitzsimon File, delivers a radio commentary broadcast on WRAL-FM and hosts "News and Views," a weekly radio news magazine that airs on multiple stations across North Carolina. [email protected] 919-861-2066