November 14, 2016

With 60,000 provisional ballots yet to be counted, Roy Cooper leads Pat McCrory 48.97% to 48.86%-a 4,979 vote lead out of 4,659,874 total votes.

An unprecedented cliffhanger? Nope. As Yogi Berra would say, it’s just deja vu all over again.

In 2004, Democrat June Atkinson led Republican Bill Fletcher for Superintendent of Public Instruction by 8500 votes out 3.3 million. While Cooper and McCrory gird for a long legal battle, the Democrat controlled General Assembly short circuited a Republican Supreme Court and gave Atkinson the victory in a vote of the Legislature. Here’s the story.

Fletcher challenged the legality of 11,000 provisional ballots cast by voters who were not registered in the precinct where they voted. Eventually, the Supreme Court ruled that out of precinct voting was authorized in the law. They also ruled that a Constitutional provision allowing the General Assembly to decide disputed elections for Council of State offices including Governor was no longer valid because the General Assembly had deleted the legal procedures for doing so in 1971 for a reason which no one in 2004 could explain.

The Democrat Legislature responded with a law removing the courts and substituting the General Assembly as the body to decide a disputed election and specifically allowing out of precinct voting. In fact, the sponsor, Senator Clodfelter, gloried in kicking the courts out of the Democrats’ way. Carolina Journal reported ”Clodfelter is quoted by the Associated Press as saying that the state courts should never have gotten involved in the Atkinson-Fletcher race in the first place, and he apparently intends for the current legislation to apply retroactively.”

Republicans quickly filed a federal lawsuit against the power play. And who was the Defendant on the side of the power play? Attorney General Cooper. Cooper and the Democrats got the lawsuit quashed.

After the Democrats steamrolled over the Supreme Court, Fletcher’s objections were tossed in the trash and Atkinson was put in office by her fellow Democrats in the Legislature.

Cooper and McCrory may indeed be headed for a court fight. But if the Atkinson precedent is followed, the Legislature may have the final say. Then we’ll see if the Democrats are content to follow the rules they wrote. And we’ll see if Roy Cooper stands for the Legislature’s right to decide like he used to.