Board Nixes Complaint By Morgan
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The State Board of Elections turned down Richard Morgan's petition against political enemy Art Pope on every count Wednesday.
Morgan has 30 days in which to file an appeal, either in Wake Superior Court or in federal court. He said he will take some time considering it.
The only motion that would have given him a victory on his claim that the Republican Legislative Majority Committee broke election laws failed for lack of a second.
Pope's testimony that he had personally tried to make certain everything done by RLM (his Republican Legislative Majority Committee) was done strictly in compliance with existing law clearly impressed board members -- though they said RLM had come trickily close to the wire without crossing it.
The ruling would have gone entirely the other way had the board based its decision on North Carolina law, said Chairman Larry Leake, Democrat from Madison County -- but he said board members were tied by a federal court injunction barring the board from enforcing it.
State law would have had the board consider context -- such as targeting self-styled "public information" mailings in districts of certain candidates as an Election Day approaches -- and that may be the law some day.
Leake said the board is still under that injunction -- even though that 1996 ruling by U.S. District Court Judge Terrence Boyle (that that part of state law was unconstitutional) has since been reversed by the U.S. Supreme Court.
The case was remanded to the Fourth Circuit, and then sent back to Boyle -- but the injunction was not lifted, Leake said.
In the meantime, the State Board of Elections is prevented from enforcing that part of the law -- a law Morgan helped to write, and which he helped to strengthen in amendments this summer. It makes the use of radio or television almost impossible.
Pope said RLM decided to avoid the use of broadcast media entirely. The group felt there was no way to be certain members were complying with strict limits on the number of people hearing any particular radio spot.
Law limits the number of listeners to 7,500 -- but anybody can tune in on a radio.
Morgan's petition claimed a "527 committee" supported by Pope, his arch-enemy, had crossed the legal line, and had become a political committee barred from taking corporate money.
Pope paid the bills for RLM with money from two family firms, Variety Wholesale and Variety Stores.
He had been calling for Morgan's resignation or defeat ever since Morgan joined a coalition of moderate Republicans and Democrats to put him and Jim Black in as co-speakers of the N.C. House in 2003.
Pope's RLM sent mailings that said Morgan betrayed the GOP and accused him of playing on the "wrong team" -- the most controversial one urging, "Call Richard Morgan OUT!" Virtually the same mailer, with only the name and voting records changed, were used to target other Republican legislators.
Board member Robert Cordle, a Charlotte Democrat, moved that RLM be found to have crossed the line and become a political committee with that call.
Back in April, when the ads first appeared, Bob Hall, director of Democracy North Carolina -- a public interest group he describes as a "watchdog" -- had formally asked the board to "intervene in the electioneering activity" of RLM.
"One flier mailed by this group, which claims to be only engaged in issue advocacy, ends with this directive for action: 'Call Rick Eddins Out,'" Hall wrote. "Similar mailings in other districts end with 'Call Julia Howard Out' or 'Call Richard Morgan Out' or 'Call Stephen LaRoque Out.'"
RLM had targeted Morgan and some of his key supporters for defeat in the May 2 primaries.
Cordle was persuaded that Hall was right that this broke the law for a committee accepting corporate contributions. His motion failed to get a second.
All the other complaints in Morgan's petition had already been dismissed unanimously, beginning with dismissal of all charges against challengers in the May primary.
One of them was Joe Boylan, who beat Morgan for the GOP nomination. Morgan said he had not thought about any write-in or independent challenge to Boylan in the November election. Boylan already has two unaffiliated challengers whose names will be on that ballot as the result of petitions.
It was a case of rules, a balance to be struck between the regulation of moneyed interests involving themselves in elections and free speech.
"I think (this law) is ripe for a constitutional challenge," Pope said after the decision. "We are very happy with the ruling. We fully complied with the law."
After going to so much trouble to be certain what his organization did was strictly legal, he would never have allowed the "Call him out" mailers to go if he'd thought they crossed the line, Pope said.
While there was much discussion during the hearing as to whether the 5,000-piece limit on mailers meant "per day of mailing" or in total -- the law has since changed. Now the limit is 2,500 pieces, and that is "in the aggregate."
During cross-examination late Wednesday, Pope's lawyer, Camden Webb, asked Morgan just what evidence he had that RLM spent corporate money on radio or TV.
"You have no evidence that RLM spent a nickel on broadcast media?" Webb said, referring to claims in the petition.
Two differing copies of the petition itself were in the room, one apparently earlier than the other and some pages shorter. The shorter version had no claim that RLM paid for broadcast media -- only that the committee had "boasted" of radio ads.
Morgan seemed uncertain as Webb pressed him for evidence to back one statement after another. In some cases, Morgan referred to attachments. In others, he pointed out that his petition was not based on evidentiary certainty, but on "information and belief" -- a less rigorous standard.
"This is your petition, Mr. Morgan," Webb would say. "Can't you tell me if you have evidence?"
Morgan maintained his belief that corporate cash, flowing from Pope companies, was illegally used to affect the outcome of the May primary in his and four other races in which anti-Pope incumbent GOP legislators sought to keep their seats.
"I believe there are records available of moneys that appear from Variety Stores and Variety Wholesale to RLM -- that hundreds of thousands of dollars were directed to RLM to produce attack mail," Morgan said. "My petition was based on that information and belief. 'Sinister' would be accurate. I believe (my petition was) the whole truth, or I would not have signed my name to it."
Webb asked if he had sworn to what he signed.
Morgan told of crossing the street from his office to a bank where a notary public witnessed him signing the petition documents. Webb asked whether or not the notary had him place his hand on a Bible and swear to the truth of allegations in his petition.
Morgan respond that he did not. He had just signed. Webb, turning to the board, started to note (apparently for the record) that such petitions were required by law to be attested under oath.
Again and again, Leake reminded everybody that issues of accuracy in every detail were not before the board and would not be needed for them to come to their findings.
"We are not going to go paragraph by paragraph through this petition," Leake said. "Let's move along."
Throughout the two-day hearing, board members (three Democrats and two Republicans) listened with patient expressions.
All had had ample opportunity to read the petition itself, filed by Morgan last April, and to examine responses and supporting documents.
Asked if the board could not really have ruled just the same way in about 20 minutes -- without all the testimony and argument -- Leake just smiled.
"Maybe five," he said. "But people have a right to a hearing."
The five board members will receive $15 apiece for each of the two days.
John Chappell can be reached at 783-5841 or by e-mail at email@example.com.
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