Voter challenge dismissed

• Editor's note: This story appeared as a 3-part report in our print edition. Below is the full, uninterrupted report.

Robbinsville – The 2022 general election may be five weeks away, but the Graham County Board of Elections is still dealing with red tape pertaining to one local municipality’s poll results from the 2021 campaign.

It took more than 10 hours on Sept. 28 at the voter-challenge evidentiary hearing to reach a verdict, but the board was unanimous in its belief that Tina Emerson of Lake Santeetlah was protected – by an admittedly vague state statute – to change her voter registration five weeks before the 2021 general election.

“I really have concerns about how the law is written, to handle a situation like this,” board member Lowell Crisp said moments before the dismissal was issued. “I think it needs to be revised. I can see how one could see that someone might be ineligible to vote – or not vote – at a particular place.

“Nevertheless, as a board member, we have to go along with what we think is the law, as much as we can. Whether we like it or not, the law relies a lot on ‘intent.’ “

Indeed, N.C. G.S. 163-57 says a voter simply has to state an “intention” to reside in a county in order to register to vote.

“All election officials in determining the residence of a person offering to register or vote, shall be governed by the following rules, so far as they may apply: (1) That place shall be considered the residence of a person in which that person’s habitation is fixed, and to which, whenever that person is absent, that person has the intention of returning …” reads the beginning of the statute.

The unanimous 5-0 dismissal was met with a mixed reaction from the roughly 30 attendees who spent the day inside the Graham County Community Building to hear the arguments. Of note, one unidentified member of the gallery shouted “liars and cheats” after the decision was rendered, while others nodded their head in agreement with the verdict.

Emerson provided a brief statement about the outcome of the hearing to The Graham Star on Monday.

“John and I registered to vote according to the North Carolina voter registration laws. We greatly appreciate the Graham County Board of Elections’ 5-0 decision to dismiss the voter challenge on Sept. 28,” her statement reads.

Emerson’s eligibility had been contested by Lake Santeetlah council member Diana Simon, who filed eight separate challenges in the wake of an unusually high number of write-in votes that had been cast when the polls closed Nov. 2. Simon’s other six challenges were filed against the Hutsell family – Amelia, Dean, Kaylee, Linda, Olivia and Savannah – with each challenging the grey area left after the ink dried on the statute.

With the 2022 general election just around the corner, the county board of elections has implied that the Hutsell’s challenges will each have to wait until next year to be heard.

The board was scheduled to hear a separate challenge pertaining to Tina’s husband, John Emerson, on Sept. 28, but her hearing did not wrap up until around 8:30 p.m. Asheville-based attorney John Noor – of the Roberts & Stevens law firm, which is representing Simon – moved to have John’s hearing continued until a later date.

The local election board later indicated that John’s challenge would also not be heard until 2023. And if the Sept. 28 hearing is any indication, the seven remaining hearings will be an exhaustive process – namely because Simon and Noor do their research.

Immediate question

Simon – herself a write-in when first elected to the Santeetlah council in 2019 – received the highest amount of votes across the ballot in November with 22. Yet, her re-election coincided with the nod for three individuals, who each received 14 votes: Tina Emerson, Connie Gross and Ralph Mitchell, all write-ins.

Former mayor Jim Hager tied with previous council member Keith Predmore for the fifth and final nod to the council, with each receiving 11 votes.

Hager later retained his spot as council member via a coin-flip tiebreaker at the election board’s Nov. 9 canvassing meeting.

Furthermore, Simon noted the large voter turnout for Lake Santeetlah.

There were 67 write-in votes altogether (52.37 percent of the 128 votes cast) in the 2021 race. In 2019, just 75 ballots were received.

At the Nov. 8 provisional meeting, Simon read an email she had sent to Graham County Board of Elections Director Teresa Garland – shortly after the results were revealed – in its entirety. The email would be just the first of countless pieces of paperwork that pertained to the 2021 results the election board would receive from Simon.

“I was … surprised by the 67 miscellaneous write-in votes (52.37 percent of total),” a portion of Simon’s email to Garland read. “This appears to be the highest percentage of any jurisdiction in North Carolina. Our Nov. 5, 2019, election had a total of 75 votes, while the Nov. 2, 2021, election had a total of 128 votes.”

The percentage was in fact the highest in the state.

So Simon got to work, filing both local and state-level appeals about the outcome of the election.

“Burden of proof”

One of the reasons cited for the late-2021 dismissals was a lack of evidence.

Simon and Hager both contended that Tina Emerson, Gross and Johnny Cochran – another candidate, who received eight write-in votes – did not live full time in Lake Santeetlah.

Many of those who own homes in the town are guilty of this, as secondary homes dominate the landscape. Residents come and go to other cities or states – either for work, to return to a primary residence or for leisure.

In the original push, Simon and Hager hastily compiled a collage of photos, property-tax forms and even the 2021 residential directory for the town, which does list each resident’s primary mailing address.

Not satisfied with the dismissals, Simon and Hager launched their own investigations. As presented at the Sept. 28 hearing, Simon and Hager split time across a six-month span (Nov. 11 through May 11) taking photos of the Emersons’ Lake Santeetlah home, hoping to show how infrequently either John or Tina were at the residence. Hager took photos whenever Simon was out of town or on vacation.

Seventy-five photos of the home were analyzed and entered as exhibits Sept. 28.

Multiple changes

One year to the date after Tina Emerson switched her voter registration from Mecklenburg County (Matthews/Charlotte) to Graham, Noor grilled her on the frequency of her changes.

Records from the N.C. State Board of Elections show that Tina voted in Mecklenburg County elections from 2004-16, but changed her registration to Graham County to vote on the 2017 ballot. She then switched back to Mecklenburg in 2018, where she remained registered until last year. Noor questioned Tina on a pair of warranty deeds that were signed for the Emerson’s Matthews’ (2011, on a refinance) and Lake Santeetlah (2017) homes. He specifically zeroed in on a paragraph in the fine print that stated the Emerson’s must occupy their Matthews residence for at least one year – or, in the case of the Lake Santeetlah home, only use the residence as the couple’s secondary home.

Shortly thereafter, Noor pointed out that the Santeetlah deed was signed on April 28, 2017 – and Tina’s voter registration was switched to Graham County later that year.

“So despite promising your lender that you’re only going to use it as a second home in April, in a few months, you’re now telling the Graham County Board of Elections that’s your principal residence?” Noor asked Tina.

“My intent changed,” Tina stated.

“Despite your commitment to your lender saying that it would only be used as a second house, correct?” Noor countered.

“I think you get a pack of mortgage papers to look at, I don’t know how many people actually read all 50 or 60 of them (pages),” Tina responded. “Or that one sentence would stand out.”

“You’re saying that you signed your mortgage papers, but you didn’t bother to read what was in it?” Noor asked, incredulously.

“Like I said, I don’t believe one sentence would have stood out to me in all those papers,” Tina said.

Tina later elaborated that she stayed in Lake Santeetlah throughout the fall of 2017 and wanted to vote in Graham County because it was her intent to stay in the county at that time.

“You just shot back (to Mecklenburg) the next year?” Noor asked.

“I think we’re allowed to do that,” Tina replied.

“Prima facie”

Noor and Simon both put a lot of stock into a piece of certified mail that was sent to the Emerson’s Lake Santeetlah residence March 25, but returned undeliverable.

The same attempt was made to the couple’s suburban Charlotte home just three days later – and was successful. Noor argued that N.C. G.S. 26-8 (Suretyship) establishes the undeliverable certified mail as “prima facie” evidence – the sufficient establishment of a fact.

Thus, Noor contended in his opening argument that the Emerson’s had not established their Graham County home as their primary domicile.

“… The return receipt, when the notice is sent by registered mail, shall be prima facie evidence of the giving of the notice,” reads the last portion of sub-section C in the statute.

Other side of the story

For the first time since the process began, Tina Emerson had a chance to plead her case in the challenge.

Though the presentation got off to a rocky start, Tina’s presentation tied up a lot of loose ends.

Noor objected to much of Tina’s opening remarks, with Cannon and Colvard showing leniency in explaining to Tina the process of displaying – and entering – exhibits.

Throughout the PowerPoint, Tina displayed a map showing where her home was in proximity to Simon and Hager (who also resides 1.2 miles away on Cherokee Lane), as well as photos taken outside the Emerson’s Lake Santeetlah residence – including photos showing Simon driving by in a vehicle, as shown via a surveillance camera, and selections from Simon’s exhibits.

Even though Simon admitted during cross-examination that she did not submit photos she took of the Emerson’s Lake Santeetlah home when someone was there, Noor continually questioned Tina presenting only certain documents and photos – rather than all the documents requested in the subpoena the Emerson’s objected to.

Tina’s witness list started with DeGarmo, who voted in the 2017 and 2021 Lake Santeetlah elections, but not 2019.

She explained this by noting she changes her voter registration to wherever she is residing at the time of an election, as she also has a home in Florida.

Tina argued that DeGarmo switching her registration to the location where she intended to live was identical to what the Emerson’s did. DeGarmo also confirmed seeing Tina around Graham County and within the Town of Lake Santeetlah.

DeGarmo later added during cross-examination with Noor that the residence in Florida falls under a homestead exemption and since the home is in her husband’s name, he does not switch his voter registration to Graham County.

“Our intention is to retire up here,” added DeGarmo.

Santeetlah resident Alan Davidson was presented as a witness, due to owning multiple properties. Noor had questioned Tina about having mail from multiple addresses sent to one location (Matthews); Davidson told the board that he receives his mail in another Charlotte suburb – Pineville – but also owns properties in Graham County and Georgia.

Jack Gross – who is married to the town’s mayor, Connie Gross – has been very active over the years in working to ensure the council stays in compliance. His diligence includes questions over what can and cannot be discussed in open – and closed – session, as well as working to obtain public-records requests to help prove his arguments.

Called as a witness by Tina, Jack also maintains a homestead exemption in Florida, so Connie is the only one in the household registered to vote in Graham County. He affirmed Tina’s assertion that the Emersons intend to retire to Graham County, recounting conversations he has had with the couple at social gatherings.

Attorneys Cannon and Noor were both contacted via email by The Graham Star for comments regarding their respective client’s feelings on the dismissal. Neither has responded throughout the 3-week span of this report.

Simon confirmed to the Graham County Board of Elections at its Oct. 10 meeting that an appeal has been filed, which will send the challenge to the Superior Court level.

John Emerson was also challenged by Simon and Hager. The hearing was scheduled for Sept. 28, but was postponed due to the length of Tina’s. Challenges were also filed against the Hutsell family.

Hearings for the remaining seven challenges will not be scheduled until next year.

The Graham Star was the only media outlet to livestream the proceedings. Audio from the stream has been enhanced and you can watch the hearings – in five segments – on grahamstar.com.