THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Friday, December 9, 1994 TAG: 9412090594
SECTION: LOCAL PAGE: B1 EDITION: NORTH CAROLINA
SOURCE: BY PAUL SOUTH, STAFF WRITER
DATELINE: RALEIGH LENGTH: Medium: 65 lines
A Tuesday ruling by the North Carolina Court of Appeals may change a face on the Manteo Board of Commissioners.
The three-judge panel overturned a Wake County Superior Court decision which had placed write-in candidate Rocky Midgette in a seat formerly held by Dellerva Collins.
The appeals panel said the North Carolina Board of Elections acted improperly when it awarded 36 of 41 write-in votes to current Manteo Commissioner Midgette after he contested 1992 municipal election results.
The 41 additional votes gave Midgette the victory over Collins, who appealed the trial court's decision.
The state board had ordered that the Dare County Board of Elections certify an additional 41 write-in ballots. As a result, Midgette was awarded one of the three contested seats on the five-member town board.
``I'm very happy,'' Collins said from her home Thursday evening. ``My heart is rejoicing. I'm very happy to know there is still justice out there.''
The appeals court ruled that the matter be reconsidered by the lower court and the state elections board. Midgette will remain on the board until the state panel and the lower court issue their final determination.
Midgette said late Thursday he will appeal the decision to the North Carolina Supreme Court. However, there is no guarantee that the high court will hear the case.
``I have to do what I think is right,'' Midgette said. ``We're going to take it to the Supreme Court. We understand that there is no guarantee, but it's something I have to do.''
Asked her reaction to Midgette's planned appeal to the state's highest court, Collins said simply, ``That's his privilege.''
The trial court, as well as the state elections board, ruled that 41 ballots, which were marked as write-ins, should be awarded to Midgette even though 36 were blank. The trial court held that the write-in ballots were implied votes for Midgette, because he was the only write-in candidate for a commission seat.
However, in a 10-page opinion, the Court of Appeals ruled that since no name was written on 36 of the 41 ballots, there was no clear expression of the voter's choice, and therefore the ballots were inadmissible. However, the panel ruled that since five of the ballots carried the name ``Midgett'' or ``Midgette'' or ``Rocky,'' the trial court ruled correctly in awarding those five votes to him.
Without the 36 blank write-in ballots, Collins would win the third seat on the commission over Midgette, 185 votes to 167.
Collins' attorney, Cressie Thigpen Jr., could not be reached for comment Thursday.
Raleigh attorney Michael Crowell, who represented Midgette before the appeals court, said he was ``a little surprised'' by the ruling.
``I thought the trial court and the state board had come to a thorough understanding of a complex case,'' Crowell said. ``We had hoped that the court would uphold the actions of the trial court and the elections board, or at least call for a new election. That's what we asked for.''
The impact of this week's decision will not be known until after the first of the year. The appeals court will not issue its final orders in the case until Dec. 27.
KEYWORDS: APPEAL ELECTION by CNB