Deadlocks, discord and compromise: Elections/Ethics Board makes nominations for ninth seat

By: - March 21, 2018 3:22 pm
The State Board of Elections and Ethics Enforcement members from left to right: John Lewis, Joshua Malcolm, Stacy Eggers, Andy Penry, Valerie Johnson, Ken Raymond and Stella Anderson. John Hemphill, not pictured,
joined the meeting via phone. (Photos by Melissa Boughton)

It took five deadlocked votes along party lines and a failed suggestion to draw names from a hat for eight members of the State Board of Elections and Ethics Enforcement to finally agree on two nominees to serve in what could be a tie-breaking ninth seat.

The four Democrats and four Republicans agreed to nominate AJ Fletcher Foundation Executive Director and Vice President Damon Circosta and former state Supreme Court Chief Justice Burley Mitchell – both of whom are registered as unaffiliated voters.

Gov. Roy Cooper will appoint one of them to serve on the Board, which has been vacant for more than a year.

Litigation over the “bipartisan” structure of the board is ongoing and the ninth member is a relatively new addition that lawmakers included in House Bill 90 to address Supreme Court concerns that Cooper enjoyed insufficient power over appointments in previous versions of the statute.

The deadlocks and the disagreements over nominations for that seat were, for the most part, expected. But board members said after the meeting Wednesday that the discord likely wouldn’t set the tone for future affairs.

“To the outside, it may look like we’re not getting along, but I actually thought it went quite well,” said John Malachi Lewis, a Republican board member who resigned upon taking the oath of office as deputy counsel for the North Carolina Republican Party.

He pointed out that six of the eight new board members are lawyers who are used to hearing arguments, examining evidence and exploring all sides of an issue.

“We’ve all got strong opinions,” he said. “There’s a give and take.”

Democratic Board Chairman Andy Penry said he thought everyone at the meeting was cordial and conducted themselves honorably.

When asked if he thought the board would get along in the future and work in unison, he said, “I’m very optimistic.”

The nominees

Damon Circosta

Circosta has been in the business of election reform his most of his career.

When he was in college at Northern Arizona University, he ran for city council, he said. The elections were held during spring break, which spurred his interest in making sure elections processes are “fair, accessible, secure and open.”

“I’ve got a deep and undividing interest [in that],” he said.

Circosta also speculated that he may the only person in the country who has worked with both 2008 presidential candidates – Barack Obama and John McCain – on election issues.

“In these divided times, that feels good,” he added.

He has headed the AJ Fletcher Foundation since 2012 and worked in the nonprofit sector since 2007. [Disclosure: Policy Watch was originally founded as a project of the Fletcher Foundation in 2004 and became a part of the North Carolina Justice Center in 2007. The Justice Center remains a Fletcher Foundation grantee.] Previously, he led the North Carolina Center for Voter Education, which was dedicated to improving the electoral process and later became part of Common Cause of North Carolina.

Circosta said he is hopeful the governor will appoint him to the board, but expressed the view that Mitchell was also a good candidate.

If he does get the seat, Circosta said he hopes he doesn’t become the board’s tie-breaker vote.

Burley Mitchell

“I think everyone on that board is trying to do the right thing,” he said. “There’s a lot of work to be done in this space and I’m hopeful there will be a lot of unanimous votes.”

Mitchell, a U.S. Navy veteran, served as an assistant attorney general in North Carolina as well as a district attorney before he was seated on the bench as a state Court of Appeals judge.

Mitchell was terse in an email response to a Policy Watch inquiry about the nomination, stating “I couldn’t tell you anything. At this point I‘m sure you know more than I.” (Emphasis in the original.) 

Former Gov. Jim Hunt appointed Mitchell as Secretary of Crime Control and Public Safety in 1979 and then as an associate justice of the Supreme Court in 1982. Hunt also appointed him as chief justice of the high court in 1995. He was reelected the next year and retired in 1999.

After his Supreme Court career, Mitchell was a partner in the Raleigh office of the law firm Womble Carlyle Sandridge & Rice, LLP (now Womble Bond Dickson), from which he has since retired.

He has a lengthy public service background and has served on the University of North Carolina Board of Governors and the Board of Trustees of North Carolina State University. He currently serves on the board of directors of the conservative James G. Martin Center for Academic Renewal (formerly the John W. Pope Center for Higher Education Policy).

Lewis put Mitchell’s name forward during the board meeting Wednesday and said he expressed interest when called about it the night before.

Gerry Cohen (Photo by WUNC)

The other candidate who was discussed at the meeting was Gerry Cohen, who has had more than 40 years of experience in state and local government in North Carolina.

All of the Board members agreed on Cohen, who was at the meeting, but they didn’t vote at the same time for his nomination – first his name was put forth with Circosta’s, then with Mitchell’s.

“I don’t know if I was everyone’s first choice or everyone’s third choice,” Cohen said Wednesday.

He said he was embarrassed and disappointed that he wasn’t nominated. He has been registered to vote as a Democrat since 1971 but changed his registration yesterday to unaffiliated after several people asked him to run for the open board seat.

“It’s very disheartening,” he said. “Clearly, I was not the Governor’s choice. I was asked by several people to apply, and I stuck my neck out and it was chopped off.”

Cohen added, however, that he planned to apply for an open seat on the Wake County Board of Elections.

There were two more people who were not discussed at the meeting who also expressed interest in joining the Board, according to spokesman Pat Gannon. They are Michael Crowell, an attorney from Carrboro and former UNC School of Government professor, and James Laurie, a Raleigh attorney.

The meeting

The Board meeting Wednesday opened with current Supreme Court Chief Justice Mark Martin swearing everyone in. Members then discussed potential conflicts of interest before jumping in to nominating a ninth member.

The Republicans on the board fought in the beginning to reschedule the meeting for next week and create an application process for people across the state who might be interested in serving.

“The last thing I want to see us do is make a choice today where we lack information on the individuals we’re nominating,” Lewis said. “We need to put partisanship behind us and remember that we are here serving all the people of North Carolina. I want this Board to work; I just want it to work with the right people.”

Joshua Malcolm was sworn in Wednesday as a member of the State Board of Elections and Ethics Enforcement. His two sons, Slade, 4, and Rivers, 9, joined him.

Joshua Malcolm, a Democratic board member who previously served on the State Board of Elections, said he appreciated where Lewis was coming from, but that there was a “litany of things” that they needed to get working on right away.

He said that he had no doubt in his mind that North Carolinians know what’s been going on with the board and that those who wished to serve had already expressed interest.

He added that there were 25 non-functioning county boards of elections to which the state board needed to make appointments before early voting, which starts April 17. There are also at least five counties that have one-stop voting plans which were not unaimously approved, he said.

“These folks are in panic mode,” Malcolm said. “They need direction.”

He added that he was “absolutely dumbfounded” by the number of ethics complaints the board needed to deal with. Gannon confirmed after the meeting that there were 16 pending complaints.

“We need to get on with it,” Malcolm said.

Stacy “Four” Eggers IV and Ken Raymond, both Republican board members, agreed that there was a significant backlog of work but both also expressed a desire for an “open and transparent” process that would be open to everyone.

“Having an unaffiliated voter or a third-party member present on this Board, I would say it’s historic,” Raymond said.

Valerie Johnson and Stella Anderson, both Democratic members expressed concern about the logistics of getting everyone together for another meeting in the next week.

The effort to delay the meeting failed along party lines, with Republicans voting for a delayed process and the Democrats voting against it.

There was similar back and forth when Malcolm presented Circosta and Cohen as the potential nominees, as Republican Board members voiced concern that they didn’t have enough information to make sure they were the best options.

All board members were provided with potential nominees’ resumes ahead of time, except for Mitchell’s.

After disagreeing on some name combinations and then taking a short break, Raymond suggested putting Circosta’s, Mitchell’s and Cohen’s names in a hat and drawing two out in order to reach a decision. Penry would not let that motion move forward.

“In the spirit of bipartisanship,” Eggers made a motion to reconsider Circosta and Mitchell, which everyone agreed on. They were nominated in a unanimous vote. The meeting lasted almost an hour and a half.

When asked what he thought about how the meeting went, Malcolm said, “we made the nomination.”

“We got sworn in and we met our statutory requirements,” he said. “How we got there, I guess, is for you all and the citizens of the state to make a determination.”

He said he had contacted all the potential nominees ahead of time and felt prepared to vote. He wished he had been given the same opportunity with Mitchell, but the final vote was a compromise, he said.

Gerry Cohen, who expressed interest in serving on the State Board of Elections and Ethics Enforcement, and NCGOP Executive Director Dallas Woodhouse talk Wednesday after the Board’s meeting.

“Sometimes it just takes people standing up, stretching their legs a little bit and maybe things clear up for them a little bit,” he added.

Malcolm said he hopes what the Board of Elections did in the past serves as a blueprint for the future, though he recognizes how it will differ some because they are now responsible for the enforcement of ethics and lobbying laws as well.

“I’m more interested in the ethics,” he said. “I believe the ethics law is there for a reason – I’m not 100 percent clear that the way the prior ethics process played out will reflect my approach to how they should be carried out.”

He encouraged members of the public to keep up with the board.

“If they want to see transparency, they need to come to the meetings or log on and listen to the meetings,” he said.

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