If the recent election for the Court of Appeals “Wynn” seat teaches us anything, it is sometimes we can be too smart for our own good.
Recently the election law was amended to try to deal with a problem that was created when several people ran for a single seat on the N. C. Supreme Court in 2004. Because the seat did not come open until well after the primary election in May of that year, it precluded the possibility of a runoff. The “winner” was elected with less than 30% of the vote.
Although well-intentioned, the authors of the new legislation decided an Instant Runoff Vote (IRV) would give the winner a true majority of the votes.
In an IRV, voters rank their top three selections in order, so if a majority is not determined by their first selection, the second and then possibly third selection are added to two highest vote totals from the first selection.
The IRV was put to the test this year when Appeals Court Judge Jim Wynn was appointed to the 4th Circuit Federal Appeals Court and took that position this past August–more than two months from the date of the next general election, thereby requiring the seat to be properly filled by voters on November 2.
So, when Judge Cressie Thigpen was appointed to Wynn’s seat in August, a new election was created and the floodgates opened. When the smoke cleared, 13 people had filed for the seat with four qualifying for public financing. These candidates received only about a third of the money the other publicly financed candidates received, yet still had to a run statewide campaign.
On Election Day, voters went to the bottom of the ballot to make 3 ranked selections among the 13 candidates—in essence, 39 choices for one judgeship. There were about 3000 precincts across North Carolina all trying to explain to the voters what to do. The statistical permutations were mind numbing.
After the first machine-counted round of votes was tallied, Judge Cressie Thigpen led with 20% and former Judge Doug McCullough came in second with 15%. Then the poll workers had to go about the manual process of finding the voters who chose Thigpen and McCullough for their second and third choices. But if you had voted for one of the two leaders, your vote for second or third was not counted.
If anyone reading this is confused, you are in good company. As the vote totals have been reported, Judge McCullough is leading by just 6,000 votes, so Judge Thigpen has requested a recount. The votes are being properly recounted from the first selection onward.
I believe in a statewide election the IRV is possibly unconstitutional, unwise and unmanageable.
In a typical election, I vote for my chosen candidate; that candidate and one other lead the election, but don’t have a majority. A runoff is declared, and a month or so later an election is held to vote for one of the two candidates left. That allows me to go back to the polls and vote a second time for the same candidate I voted for the first time. In other words, I’m not eliminated from voting in the runoff. In the IRV, I am disenfranchised from the runoff vote since my vote is set aside after the initial primary counts. I know of no other election process where a voter is prohibited from voting in a runoff simply because he/she voted for one of the remaining top two candidates.
Judges Thigpen and McCullough have no way to monitor statewide to make sure the process is uniform and fair, since they used public financing and have expended their funds from the campaign. They are not allowed to raise additional money.
Lastly, the entire process, from the voter’s perspective to the poll workers trying to understand difficult instructions on how to count the ballots, makes this process an instant throwaway.
There is a simple solution to never having to see this again by changing the law governing the appointment process. Any seat coming open after the beginning of the filing period (usually around the first of February) should be appointed until the next general election year, in this case 2 ½ years. That would allow a normal election process, so if 13 people ever want to run for the same seat again there can be a legitimate runoff.
Mr. Overcash is Chairman of the Board of SharedVue, Inc., a sister company of Strategic Insights, and worked in the Judge Cressie Thigpen Campaign.