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  • Jefferson Weaver

Lewis Protest Refused by State

•. Local elections board has no jurisdiction over criminal accusations, state says.

The second protest against incoming sheriff Jody Greene was dismissed by the State Board of Elections on Monday.

In a letter to Herman Lewis of the Columbus County NAACP, SBOE General Counsel Paul Cox said the executive director of the state board has recommended dismissing Lewis’ complaint due to “failure to allege probable cause of an outcome-determinative irregularity, violation of law, or misconduct.”

Lewis had claimed that Greene was ineligible to hold office as sheriff, because he had resigned Oct. 24 at a hearing for his removal from office. District Attorney Jon David had asked Superior Court Judge Douglas Sasser to remove Greene based on a 30-plus page complaint alleging racism, sexual misconduct, and criminal misconduct under Greene’s watch from 2019 through 2022.

Sasser agreed to a suspension for Greene Oct. 3, to give David time to complete the investigation into allegations against the sheriff. At the Oct. 24 removal hearing, Greene resigned, and David agreed to dismiss all charges against Greene. David later said publicly that he intends to charge Greene with the same petition for removal that was dismissed if he is sworn in.

The suspension came about after Democrat challenger Jason Soles released a partial audio recording of Greene made in 2019, when Soles worked for Greene at the sheriff's office. Soles released the audio two weeks before thew start of early voting. He told media outlets that he had shared the audio with the district attorney's office, county commissioners, county administration, and the State Bureau of Investigation, but none showed interest in the recordings until it was broadcast. David denied knowing about the recordings until the newscast, as did county administration and the four county commissioners who replied when asked to comment. Gov. Roy Cooper said in a news conference about the accusations that state officials never knew about the recording before the broadcast. Only County Commissioner Giles Byrd -- an outspoken opponent of Greene -- said he heard the audio before it was released to some media outlets. Soles lost the election to Greene by nearly 1,600 votes.

Lewis, through attorneys Allison Riggs, Jeffery Loperfido and Noor Taj of the Southern Coalition for Social Justice, claimed that the dismissal had the same effect as a judgement of guilt against Greene. Lewis asked for Greene to be disqualified by the county board, and a new sheriff appointed until a new election could be held.

The county board rejected both Lewis and Calvin Norton’s calls for Greene’s disqualification by a two to one vote. Board members Bonita Blakney and Kay Horne recused themselves. The vote was strictly along party lines, with Republicans Dave McPherson and Mack Ward voting against the complaints, while Democrat Brenda Ebron cast the sole vote for the protests.

Lewis and Norton then appealed to the state board, which rejected Norton’s claim Thursday.

SBOE Executive Director Karen Brinson Bell ruled that Lewis based his complaint not on election irregularities, but on actions allegedly occurred during Greene’s time as sheriff, over which the county board has no jurisdiction. Since the only action taken by the courts regarding those allegations had been dismissed, Greene was not disqualified to run, the state said.

“First, he (Lewis) argues that disqualification from office is a remaining issue in the matter,” the state’s letter said. “However, a determination of a candidate’s qualifications to seek and hold office is a wholly separate issue that, in this case, would be a byproduct of a judicial process resulting in the removal of a sheriff under Article 2 of Chapter 128 of the General Statutes.

“Second, he argues that Mr. Greene’s resignation before a final adjudication is evidence of guilt. But this argument reveals that the protest would require the County Board to now proceed with stepping into the role of the superior court judge by making an adjudication of guilt itself, such that Mr. Greene should be removed from office. No statute allows a county board to proceed in this manner. Furthermore, election protests are limited to raising issues involving ‘the conduct of an election.’

“Accordingly, Mr. Greene has not been disqualified from office, and a board of elections—both county and State—has no authority to disqualify a candidate for office in the manner proposed by Mr. Lewis.”

Lewis also accused the local elections board of holding an illegal closed session because the agenda noted the session was for personnel matters, but the board sought legal advice regarding protests. They also did not provide a general account after the session ended. Lewis said in his protest that he felt the Columbus BOE discussed his appeal in the closed session, which would be a violation of the law.

“Mr. Lewis has not sufficiently explained how alleged violations of open meetings laws affected the preliminary consideration of his protest, particularly when the protest itself was properly dismissed for failure to establish probable cause and protesters have no statutory right to participate in the preliminary meeting. In other words, even assuming there was a defect in the calling of a closed session… the result would be the same—that the protest was not sufficient to proceed to a hearing,” the refusal said.

Norton stated on social media Tuesday that he plans to appeal the SBOE decision to a Superior Court Judge in Wake County, as allowed by law. Lewis has not made a public statement regarding an appeal to the courts.

If the appeals are denied in Wake Superior Court, Greene will be eligible to receive a certificate of election by Dec. 28. If a judge issues a stay or agrees to a hearing on either Lewis or Norton’s appeals, Greene could be blocked from office until the hearing is held.

You can read the full letter to Lewis and refusal from the state board of elections here:

NCSBE Notice of Appeal Denial - Lewis - 20221212
Download PDF • 336KB

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