RALEIGH, N.C. (WGHP) – The North Carolina Board of Elections voted Thursday to dismiss Jerry Alan Branson’s attempts to throw out the Guilford County school bond referendum voters approved in May.

In a pair of 3-2 votes, the state BOE first declined to remand the matter to the Guilford County Board of Elections, which had rejected Branson’s complaint earlier this month, and then dismissed the matter entirely because members felt that there was insufficient evidence that would change the outcome of the election, which is the remedy Branson had sought.

Former Guilford County Commissioner Alan Branson (NEWS & RECORD)

In discussions of the motions, the two members of the board who voted to hold more hearings on the matter agreed that there was likely insufficient information to suggest that the margin of the election would be affected.

Branson had protested because of emails, text messages and direct mails he said were distributed by the county and the school board in violation of election law and that they had tainted the election.

The $1.7 billion bond issue passed by more than 16,000 votes, but an attached referendum to approve a sales-tax increase failed, a point included in the argument by attorneys for the county and the schools. They also cited similar votes on bonds and taxes in 2020.

They also argued that the complaint was a campaign finance issue and not subject to election review. All agreed that Branson could go to court to seek remedy. It is unclear whether he would take that step.

Guilford County Elections Director Charlie Collicutt said in an email that the vote will have formal certification.

“Basically we will issue the certification 10 days after the State Board issues and serves its decision,” Collidcutt said, “Unless there is a stay issued by Superior Court within that timeframe.” 

As for what he might do next, Branson said later that he looking and state statutes and doesn’t “know right for sure what next steps might be. I think I have 10 days to decide to appeal and take it to the courts.”

Said Julie Smith, spokesperson for Guilford County: “For a second time, a Board of Elections has ruled to dismiss the protest to the May school bond referendum. Guilford County voters overwhelmingly approved the use of General Obligation bonds to make improvements to Guilford County Schools facilities and we are ready to get to work delivering improved schools to the community as authorized by the voters in May.”

The arguments

Katelyn Love, counsel for the BOE, established in her opening summation of the case that anoutcome-determining issue” was the key to considering the motions before the board. This proved a prescient point.

Phillip Thomas, one of three attorneys representing Branson, had submitted 192 pages of additional evidence since filing the complaint the Guilford County BOE had rejected. The state board agreed after discussion and argument to consider that evidence in making its decision.

“Our argument is that mass communications are going out to thousands,” Thomas said during a 20-minute presentation with fellow attorneys Kevin Cline and Steven Walker. Branson did not speak during the hearing, which was conducted remotely.

“You will see that a paid or unpaid political operative provided county government with a detailed game plan about how to get their school bond passed,” Thomas said. “They provided how to approach specific voters.”

Caroline Mackie, representing Guilford County, described how this was the fourth iteration of Branson’s complaint and really was about how the county and the school board were spending money, not about affecting the election.

She said Branson had started in April with a letter, and she cited a letter by the state Board of Elections’ counsel at that time that stated that “county governments don’t fall under state or county boards of election and no authority to investigate.

“After the Guilford County Board of elections declined to investigate, no campaign finance complete was filed. No case was opened. This case raised questions about the use of public funds and the rights of local boards to use those funds.

“This is not a case of election administration or violation of election law. … It’s a matter a court should decide.”

Jill Wilson, attorney for the school board agreed.

“If you look at the remedy that is requested, you can see why this matter is inappropriate to be before you,” she said. “Going to court is the appropriate way to deal with allegations of whether the use of public funds or political activities is inappropriate.”

Rebuttals

Walker in his rebuttal comments noted that the government in its campaign literature says “critical needs” and “essential needs.”

“If a PAC had done this, the other side would be the other way,” he said. “The county and the school board are acting as an unregistered PAC to support this bond.”

Wilson later, in response to questions from board member Tommy Tucker, said the board of education doesn’t discuss funding in its information about the bond.

“We put out materials that say we would use x dollars to do the following things,” she said. “We don’t make determinations about funding. We portray the need.”

She said that there were groups that raised and spent money to promote the bond, but they had nothing to do with the school board.”

The decision

Tucker and board member Stacy “Four” Eggers IV generally agreed with Branson’s attorneys had the board had jurisdiction to address this complaint and that the complaint had established probable cause. They also agreed that the matter should be remanded to the Guilford County Board of Elections for a full hearing.

But board Chair Damon Circosta, Secretary Stella Anderson and member Jeff Carmon voted against those motions.

“I agree we have jurisdiction,” Circosta said. “Where I don’t agree is whether or not the petitioners have met probable-cause threshold.

“I think they might have a higher opinion in the workings of advertising than I do. How that money would become outcome is determinative, especially given the difference [in the vote outcomes] with two bonds. I don’t think it is probable cause.”

Tucker suggested that a hearing might be good just for the school board and county “to clear the air” and “to send a message to other school boards.”

“I would concur we are not going to have a new election for this,” board member Jeff Carmon said. “If that’s the case, why would we send it back for evidential hearing?”

He moved to dismiss the motion because there was no probable cause. Tucker and Eggers voted against that motion, but they agreed that a hearing was unlikely to change the outcome of the election.

Guilford County BOE’s vote

The Guilford County Board of Elections had found no probable cause to hold a hearing on this matter, in a 3-2 vote, which led Branson to appeal to the state.

Branson, who is the Republican nominee for the at-large seat on the Board of Commissioners, in April had sent a letter to county and state elections officials to suggest that the county had broken state election law by appearing to endorse the bond and raised concerns about “the legitimacy of the referenda and enforceability of bonds that might later be issued.”

The bond earned nearly 60% of the vote, but Branson’s attorney, Phillip Thomas, argued during both hearings that the margin – the actual final count was 45,639-29,577 – and close enough that the board should order a new election.

Branson’s complaint

The Guilford County Board of Commissioners in December had voted, 7-2, to place on the ballot a $1.7 billion bond to cover the cost of rebuilding, replacing and repairing a laundry list of crumbling school facilities. The county also had a referendum to add a quarter of a cent to the sales tax to pay for immediate school construction, but that tax failed on May 17.

Branson’s original letter Guilford BOE Chair Jim Kimel and members of the board had said the county was “expending taxpayer funds and other government resources to promote a viewpoint favoring the passage of both referenda.”

His letter said that:

  • The county was violating state election law by presenting “unbalanced” information that failed to disclose public costs for interest on the bonds and to explain that a reduction in property tax to offset the quarter-cent sales tax should have explained that tax values likely would rise even as the rate declined.
  • That the county had spent taxpayers’ dollars on a direct mailing that appeared to promote the passage of the bond, which, he argued, would violate state law against government bodies spending money to promote a political agenda.
  • That Guilford County Schools had rallied school principals and teachers in an attempt to generate their support for the bonds even if they might not personally support the referendum.

Branson said at the time that he was concerned about who is paying for the promotion of the bond referendum and how many of the taxpayers’ dollars might be going into the effort.