Split N.C. Appeals Court rules against State Board of Elections in Watauga early voting dispute

The N.C. Court of Appeals has ruled, 2-1, against the N.C. State Board of Elections in a dispute involving early voting sites in Watauga County.

Technically, the court’s majority threw out an appeal from the state elections board because the 2014 case is moot. The 2014 election is over, and its issues were resolved. The plaintiffs in the case had argued that an early voting plan for Watauga County should include a site on the Appalachian State University campus, and they were granted that relief.

But SBOE had pushed forward with its appeal of that ruling. The elections board contended that an appellate court should clarify whether a court had the right to throw out an SBOE early voting plan. SBOE contended that appellate judges could address that issue, even though the facts of the 2014 case had been resolved.

Writing for the majority, Judge Ann Marie Calabria offered this response:

… [T]he Board attempts a clever “bait and switch” on appeal: it contends that the central issue is whether the superior court “has jurisdiction to hear what amounts to a collateral attack on a decision of the . . . Board to adopt an early voting plan for a county in which the county board of elections was not unanimous.” Based on this characterization of the case, the Board argues that “absent a ruling from this Court clarifying the superior court’s jurisdiction, it is reasonably likely that the . . . Board will again find itself in this same position, namely, forced to defend against a collateral challenge to an early voting plan that [it] has approved or adopted[.]” The Board’s approach is inherently flawed, however, because it impermissibly recasts the nature of the parties’ dispute. In making its arguments, the Board turns the capable-of-repetition exception on its head. Our review of the pertinent case law reveals that the exception is intended to allow plaintiffs to obtain a judgment or appellate review in cases where the two prongs are met; it is not designed to protect defendants or respondents from future lawsuits. Accordingly, based on the facts of this case, the “same action” is not whether the Board might be forced to defend against its adoption of a future early voting plan, but whether future registered voters will challenge an early voting plan adopted by the Board as violative of the constitutional rights of voters aged 18 to 25.