Loss of run-off unfortunate, but past results still valid

Apr. 03, 2014 @ 01:19 PM

The Durham County Board of Elections has decided that there will not be a runoff in the school board election this May.  The runoff system used in the past provides the best way for Durham’s voters to choose school board members.  We plan to ask our local legislators to put forth a law that will ensure that future elections provide for a runoff.

Durham’s school board races often have crowded fields.  In the past, our county board of elections has interpreted the law to provide for a runoff when no single candidate gets more than 40 percent of the vote.  However, it appears that in the upcoming election, the top vote getter will be declared the winner, even if he or she receives less than 40 percent of the vote.  This is not the best way to choose board members who represent the views of voters.

Elections officials now say that Durham’s school merger plan did not provide for runoff elections.  Even so, the school board’s legal counsel has assured us that the actions of all board members currently on the board are valid, regardless of whether they were elected in a runoff.  Deborah Stagner of Tharrington Smith, LLP has provided the following explanation:

First, it is well established that a certificate of election issued by the legitimate and authorized election officials “conclusively settles prima facie the right of the person so ascertained and declared to be elected to be inducted into, and exercise the duties of the office.”  Cohoon v. Swain, 216 N.C. 317 (1939).  While it is certainly possible that a board member’s right to take and hold office could be challenged, that has not occurred here.

Second, there is a statute that codifies the presumption that a person admitted and sworn into office will hold that office unless and until there is a contrary determination by a court.  N.C. Gen. Stat. 128-6 provides that “Any person who shall, by the proper authority, be admitted and sworn into any office, shall be held, deemed, and taken, by force of such admission, to be rightfully in such office until, by judicial sentence, upon a proper proceeding, he shall be ousted there from, or his admission thereto be, in due course of law, declared void.”

Finally, there is a long line of cases in North Carolina holding that even where there is a defect or irregularity in an election, the person holding office as a result of such election is a de facto officer, and his or her actions are “valid in respect to the public whom he represents and to third persons with whom he deals officially.”  Rockingham County v. Luten Bridge Co., 35 F.2d 301 (4th Cir. 1929); see also Commissioners of Trenton v. McDaniel, 52 N.C. 107 (1859) (“an officer de facto is one who enters under color of an election or appointment, although irregular, and is not a mere usurper”). 

We hope that this explanation puts to rest concerns about past elections for school board.  We look forward to working with our local legislators to provide for fair and representative school board elections in the future.

Heidi Carter is chair and Minnie Forte-Brown is vice chair of the Durham Public Schools Board of Education.