Judge says Watauga County’s elimination of early voting site was ‘arbitrary and capricious’

UPDATE: North Carolina elections officials appealed this ruling on Thursday, Oct. 16. See ‘State appeals Watauga early-voting ruling, fate of ASU site uncertain,’ via the Carolina Mercury.

By Lucy Butcher and Kirk Ross

Watauga County Elections Director Jane Ann Hodges said she’s waiting to hear from state officials on a new early voting location after a Wake County judge ordered the State Board of Elections to revise the county’s early voting plan to include a one-stop site on the Appalachian State University campus.

Hodges told Carolina Public Press Tuesday morning that with early voting starting in a little more than a week, her department is doing what it can to prepare for a campus location while anticipating word from the state board, which will have final say on the site.

“The decision won’t be up to to the county board of elections or the university,” she said. “The state board will determine where to put the polling location.”

A spokesperson for the State Board of Elections said there has yet to be a decision on whether to appeal the order.

“Our agency is in consultation with counsel at the Attorney General’s Office, which will determine whether this matter should be appealed,” Joshua Lawson wrote in an email response to Carolina Public Press Tuesday evening. “State Board executive staff are coordinating with the ASU liaison to determine which on-campus site would best accommodate early voting.”

Hank Foreman, vice chancellor for advancement and ASU’s chief communications officer said late Tuesday that the university was moving foreword to meet the judge’s order, but did not name a location.

“The university will cooperate with the State Board of Elections and the Watauga County Board of Elections to comply with the court’s order,” Foreman said.

Superior Court Judge Donald Stephens sent the matter back to state elections officials, calling the county board’s early voting plan “arbitrary and capricious” and an unconstitutional attempt to limit student voting.

In a ruling issued Monday afternoon, Stephens said that, on its face, the major purpose of the plan adopted by the Watauga County Board of Elections plan was to eliminate the on-campus site.

“[T]he court can conclude no other intent from that board’s decision other than to discourage student voting,” Stephens wrote. “A decision based on that intent is a significant infringement of students’ right to vote and rises to the level of an unconstitutional violation of the right to vote.”

His order requires the state board to adopt an early voting plan for Watauga County that includes “at least one early voting site on the ASU campus” for the 2014 election.

Read the entire order below.

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Before issuing the order, Stephens announced in court that while he did not care which way young people voted, it was the government’s roles to minimize inconvenience in voting, not maximize it.

Hodges said she has not heard from state officials yet, but hope to soon. “It takes a lot of work to put a plan in place and get everything ready. We don’t know when they will name a place. Right now, we’re sitting and waiting,” she said.

ASU student body president Carson Rich said he was excited about the news.

“Students will be able to safely walk to the on campus polls for early voting,” he said Tuesday morning. “There is no need to make voting difficult for over 18,000 people, and that was initially the case.”

Ian O’Keefe. Image via Facebook

Ian O’Keefe, an ASU senior and one of the petitioners in the case, said he was “pretty thrilled” to hear word of the judge’s decision since it validates the argument he and others have made that the early voting plan would have disenfranchise students.

The issue, he said, is about access and not partisanship.

“I don’t know anyone on campus, College Republicans or any students, who think that taking voting off campus is the right thing to do,” he said.

O’Keefe said he’d like to see the location go back to the student union and is concerned that there might be a move to use the Legends nightclub on the edge of campus instead. The Legends site, he said, is not centrally located, poorly heated and would be difficult for people with disabilities to access.

Long-running dispute

The court decision is the latest development in Watauga County’s long-running dispute over voting rules in Watauga County, home to Appalachian State University, the largest public university in Western North Carolina. ASU has an enrollment of 18,000 students this year, which is record-breaking, according to university officials.

Last year, after the majority of the three-member Watauga County Board of Elections switched to the Republicans, the majority voted to do away with a one-stop site on the ASU campus for the 2013 municipal elections.

Since then, plans proposed by the board’s majority have lacked an on-campus site. The county board’s only Democrat has refused to vote in favor of the plans and has pushed for an on-campus location.

In August, the state board stepped in to settle the issue. It sided with with the Republican majority in a 4-1 vote. The next month, a group of Watauga County voters, many of them students, filed a petition for judicial review, alleging that the removal of the campus early voting site in the general election would put up unnecessary barriers to student voting that were not justified by any legitimate state interest.

The group also claimed that the state board did not make the proper findings or explain how it took into consideration factors such as the county’s geographic, demographic, and partisan interests in deciding between the two plans, as is required by state law.

The plaintiffs noted in the petition that during the years that the ASU student union was used as an early voting site, 91 percent of early voters aged 18 to 25 in the county cast their ballot on campus. The site accounted for 35 percent of the county’s early votes in the 2012 general election.

This year, according to the petition, primary results showed a 12 percent drop in early voting by college-aged voters.

Early voting starts Oct. 23.