The race is not necessarily to the swift

It was a day of high politics in downtown Asheville, featuring a rare meeting of the State Board of Elections far afield from its Raleigh headquarters. And with election season looming, the Aug. 24 agenda included a local judicial issue with statewide implications as well as the high-profile question of financial-reporting discrepancies by Gov. Bev Perdue's campaign.

Hot on the trail

At least five television transmission vans were parked and humming behind the Renaissance Hotel in pursuit of the latter story, and a cluster of protesters waved signs proclaiming "Larry Leake has to go." The Mars Hill Democrat, who’s headed up the Board of Elections for 18 years, was under attack by Republicans who said he’d mishandled the Perdue investigation.

Inside the hotel's ballroom, a bank of video cameras and portable computers lined one wall, and the front row of chairs was being zealously protected pending the arrival of lawyers involved in the day's proceedings.

Shortly after 9 a.m., the board took up the big news item of the day, which Chairman Leake referred to simply as "airplane": the Perdue campaign’s late filing of expense reports concerning more than 40 instances of travel on private or corporate jets that had been omitted from earlier reports. Several other campaigns (including the unsuccessful bid by Perdue's opponent, Republican Pat McCrory of Charlotte) were also being reviewed, though none of them had discrepancies as numerous or politically volatile.

State Republican Party Chair Tom Fetzer called for a formal public hearing on the governor's reporting failures, contending that the omissions were intentional because they involved political donors whom Fetzer said had already contributed the maximum allowable amount to Perdue's campaign.

For good measure, Fetzer wanted Leake and Gary Bartlett, the board’s executive director, to recuse themselves from the decision, charging that they’d already interfered with the investigation.

That didn’t sit well with Leake, who retorted: "Facilitating and participating in an investigation is not a coverup procedure. This office is not going to be intimidated."

After a lengthy closed session, board members emerged and voted 4-1 to fine Perdue’s campaign the maximum amount: $30,000 ($10,000 per reporting cycle). They found that "the violations were not intentional" and ordered that campaign staff receive training in financial-reporting requirements. The other candidates weren’t fined but were also instructed to get staffers trained.

Who’s to judge?

After that, the bank of television cameras evaporated, but the second hot topic of the day soon saw a host of lawyers hotly debating a question concerning the upcoming election of 28th District Superior Court judges in Buncombe County.

Assistant District Attorney Kate Dreher and Judge Alan Thornburg came out on top in the May 4 primary and were set to face off in the November general election. (Thornburg had been appointed to the seat following Judge Ronald Payne’s retirement in 2008.)

In June, however, Judge Dennis Winner retired, triggering a flurry of procedural head-scratching. A weeklong special filing period (Aug. 3-9) netted three candidates for that seat: local attorney Diane K. McDonald; attorney Heather Whitaker Goldstein, who is executive director of the Jewish Community Center in Asheville; and District Judge Marvin Pope, who’d lost to Dreher and Thornburg in the May primary.

But with too little time to hold a second primary, the board decided that the candidates for Winner's seat would be listed as a separate ballot item in November, with Dreher and Thornburg still squaring off for the original seat.

Based on her interpretation of the law, however, Dreher challenged the board's decision, asking that the two open seats be listed as a single ballot item pitting all five candidates against one another.

"My client's sole interest in this matter is only that the statutes that govern the election of Superior Court justices be applied correctly and fairly … so that there's no question about the legitimacy of the results," Dreher's attorney, Adam Mitchell of Raleigh, told the board.

Dreher herself said, "I do recognize [that changing the format] could cost me the election," but as an officer of the court, she feared that "4,200 inmates might raise a jurisdictional issue" if the format wasn’t legally correct.

McDonald, however, told the board, "I see nothing [in the law] that calls for one election." And retired N.C. Supreme Court Justice Robert Orr (who’s now executive director of the N.C. Institute for Constitutional Law) argued on Pope’s behalf in favor of separate ballot listings, stressing the tight timeline. Attorney Larry McDevitt, representing Goldstein, also opposed a five-person race, encouraging the board to "interpret the statutes the way you probably know they should be interpreted."

In the end, the board unanimously decided to continue the election process "already commenced" between Dreher and Thornburg while holding a separate vote for the second seat.

Dreher told Xpress afterward that she didn’t intend to appeal but would instead devote her "personal and campaign assets" to informing voters concerning election issues.

The public face of justice

"The race is really an unusual situation, in that we have both Superior Court slots open," William Christy, president of the local bar association, noted later. These judges, he explained, preside over serious criminal and civil cases, set criminal sentencing and handle anything from "medical malpractice to condemnation cases” involving amounts over $15,000.

“I think the public generally doesn't know that, but Superior Court judges, by law, have a lot of jurisdiction and a lot of weight, and they run the important trials," said Christy.

Campaigns for judgeships are difficult because the candidates are constrained as to what they can say in public, he pointed out. "But they're extremely critical positions. … They're the face of the judicial system for most folks."

— Freelance reporter Nelda Holder can be reached at nfholder@gmail.com.

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