Judge denies stay
By Barbara Arntsen
Published in News on January 30, 2004 2:03 PM
RALEIGH -- A judge has denied a request by Goldsboro Councilman J.B. Rhodes that would have allowed him to remain in office.
That decision clears the way for Jimmy Bryan to be sworn in Monday as the District 1 councilman. In his appeal, Rhodes had requested that Bryan's swearing in be prevented, or stayed, until the appeals process had been completed.
The Wake County Superior Court judge also wrote Thursday that it was unlikely Rhodes' appeal of the election results would be granted.
Rhodes wants the courts to either overturn the recount results that made Bryan the winner by one vote, or to order a new election for District 1.
"Based upon the allegations contained in the motion for stay, the appeal, the administrative files of the proceedings below, and argument of counsel, the court denies the motion for stay, because the petitioner has not shown he is likely to prevail in the appeal," ruled Judge Narley L. Cashwell.
The decision came Thursday after a 25-minute hearing in Raleigh.
"I'm glad I can go ahead and start serving," Bryan said. "I want to thank all of the people who have supported me during this process."
Rhodes arrived at the hearing about five minutes before it ended and stepped outside briefly when his cell phone rang during the proceeding.
When he returned, the judge issued the denial.
Louis Jordan, Rhodes' lawyer, argued that Rhodes should have been declared the winner of the Nov. 4 election, because Bryan didn't file a timely protest.
Jordan also said he was concerned that Joe Daughtery, a member of the Wayne County Elections Board who announced that he had made a mistake counting votes on election night, had spoken with Bryan prior to the protest being filed.
Daughtery's announcement that he had made a mistake led to the county board's recount. Daughtery has said his error was an honest one, made due to a large number of write-in votes that required ballots be counted by hand.
But Jordan said "Daughtery had a conflict of interest, because he was a witness on the matter he set up."
Jordan also said the State Board of Elections had ordered a new election for the District 6 race, between Danny Roseborough and Jackie Warrick, because "there was a sufficient taint to the election."
In District 6, Roseborough had won on election night, but lost to Warrick by four votes in a recount. The state board ordered a new election because more voting irregularities were discovered.
"The taint couldn't go to one, but to all districts," Jordan said. "Especially since Rhodes only lost by one vote."
Jordan also said the county Elections Board acted in a "capricious and arbitrary manner" and didn't count two votes for Rhodes that should have been counted.
Susan Nichols, the lawyer for the State Elections Board, explained how the board reached its decision.
"The District 1 and District 6 were the only close races that could be affected," she said. "The state board heard arguments and decided to remove any possible arguments of conflicts of interest by holding an evidentiary hearing."
Ms. Nichols said that the count by the state board matched the count by the county board.
"They reached exactly the same total for District 1," which was between Rhodes and Bryan, she said. "It was a close race, but people can win by one vote."
As for the two ballots that were not counted, Ms. Nichols said, the state board followed state law because it couldn't determine the voter's intent.
On one ballot the voter had written in William Barber's name as the choice for the District 1 council race, and he had also made a mark beside Rhodes' name.
The voter on the second ballot did the same thing, except he spelled the name as "William Darber."
Nichols said additional questions had been raised for District 6 that didn't carry over to Rhodes, because they involved provisional ballots and an unexplained difference in numbers.
Rhodes said Thursday that he planned to continue with his appeal, which might not be heard until sometime in late March.
"If it takes a year, it's OK with me," Rhodes said.
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