BOONE — Two members of the Watauga County Board of Elections filed a lawsuit against the N.C. State Board of Elections in Wake County Superior Court on Sept. 10 seeking to halt the state-approved majority plan to have a polling site at the Appalachian State University Plemmons Student Union.
Plaintiffs in the case are Eric Eller and Nancy Owen, the two Republican members of the county board. The complaint requests a motion for a temporary restraining order, preliminary and permanent injunctions and a motion for an expedited hearing. The temporary restraining order seeks to "prevent the staff of the Watauga County Board of Elections from utilizing previous time in preparing for an early-voting site that can't be utilized and further to ease the burden of (App State) and its staff from seeking to find other places to hold in person learning."
Request for comment from the N.C. State Board of Elections was not returned as of Sept. 16.
The filing comes approximately 11 days after the state board sided with the county's proposed majority plan to use the Blue Ridge Ballroom as an early-voting site. The majority plan was approved by county board Chair Jane Ann Hodges, Marvin Williamsen and Matthew Walpole — all Democrats. A separate minority plan — favored by Eller and Owen — proposed the use of the Holmes Convocation Center as a polling site instead.
University representatives have previously stated that the Blue Ridge Ballroom could not be used as a polling site, as classes were being held there in order to physically distance students across campus. App State officials offered the use of the Holmes Convocation Center instead.
The complaint alleges that the Watauga Board of Elections did not authorize Hodges to request the use of the Blue Ridge Ballroom from the university. Request for comment from Hodges was not returned as of Sept. 16.
"The actions by the chairwoman to talk with officials with Appalachian State University and write an email to the chancellor of the university requesting the Blue Ridge Ballroom do not constitute actions of the Watauga County Board of Elections as there was never any vote authorizing her to seek the Blue Ridge Ballroom as an early-voting site at those times, therefore she was only acting individually," according to the complaint.
The complaint also alleges that a formal vote about the Blue Ridge Ballroom did not take place until the board's July 28 discussion of the majority and minority plans to submit to the state, and therefore the date wouldn't meet the 90-day requirement set by N.C. General Statute 163-237.6(b). The statute requires that prior to the state board seizing an early-voting site from a governmental unit, that the local county board of election shall request the use of a location from a that unit 90 days before early voting — which begins Oct. 15. For this reason, the complaint states that the defendants lacked the statutory authority to adopt the majority plan.
"The plaintiffs as voters and by virtue of their office representing the people of Watauga County are damaged by the defendant's actions in acting without statutory authority," the complaint stated. "The court should order the minority plan to be accepted as the only viable plan or remand this action back to the defendant with instructions that the defendant adopt an early-voting plan for Watauga County which complies with the statutory limitations."
Nathan Miller, of Miller and Johnson PLLC, is representing the plaintiffs, and said the hearings have not been scheduled as of Sept. 16. He added that the lawsuit filing doesn't have anything to do with voting taking place being at the student union, but rather the plaintiffs allege that the majority plan doesn't follow the law. Additionally, he said those who voted for the majority plan didn't respect the wishes of one of their partners — the university. Miller wasn't aware if the university had filed any supporting materials in the lawsuit.
"The board of elections should work with (the university), not against them," Miller said. "It doesn’t have to do with voting at the student union just because it’s the student union. It has everything to do with that building (being) in use for socially distanced classes during the COVID-19 pandemic."
Miller added that both Eller and Owen were part of a unanimous vote in December to approve an early-voting plan for the spring primary election that included the student union as a site.
"ASU in this case and the minority plan simply want the law followed," Miller said. "Voting right now seems confusing enough with mail-in ballots and all the rest. We need to follow the laws as they are on the books so that we can have less confusion."