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The question of who will keep the Morrisville District 1 seat could come closer to getting an answer Thursday, when the N.C. State Board of Elections meets to consider the appeal.
At issue is whether 11 voters were disenfranchised when their absentee ballots were rejected by the local election board.
The state board is to meet at 10 a.m. and decide whether to uphold the Wake County Board of Elections' decision or schedule its own hearing.
The county election board rejected the ballots because some came in after the deadline, lacked a postmark or included witness forms signed by Linda Lyons, a candidate running for town council, which is illegal.
Michael Schlink, a Republican, won the District 1 seat in November by two votes over incumbent Lyons, a Democrat. Until the state board renders its decision, Lyons will continue to represent District 1, which includes the Shiloh community.
Given the close margin of Schlink's win, the outcome of the race could change if some of the ballots are accepted.
Five ballots belong to Democrats and six ballots belong to unaffiliated voters.
Although two seats are vacant on the five-member state election board, enough people remain to consider the appeal, said Gary Bartlett, executive director with the state board.
"Business can be conducted with three board members," he said. "A quorum is three."
Of those three members, Chairman Larry Leake and Bob Cordle are Democrats, and Charles Winfree is the lone Republican.
Within 10 days of the state board's decision a certificate will be issued to the winner unless the matter is appealed to superior court and the court issues a stay order, said Attorney Don Wright, with the state election board.
Attorney Michael Weisel filed the appeal on behalf of residents Vivian Mills and Carolyn Pearson. Mills is one of the 11 voters who had their absentee documents signed by Lyons, verifying their identities. All 11 ballots were denied. Eight of the 11 went to vote on Election Day, leaving three ballots pending review. Weisel said voter instructions did not include restrictions on witnesses.
The State Bureau of Investigation is also investigating Lyons' alleged mishandling of the ballots.
Another eight absentee ballots, including Pearson's, were rejected because they arrived late or lacked a postmark. State law requires the admittance of such votes as long as they were postmarked by Election Day.
Wake County Board of Elections Director Cherie Poucher said the administrative code only allows extra time for military ballots.