Swain County Commission Chairman Glenn Jones has been cleared of any wrongdoing in a voting drive leading up to the 2006 commissioner election, according to an investigation released by the N.C. Board of Elections last month.

The state Board of Elections spent several months in the spring of 2007 determining whether a voting drive targeting the poor and elderly crossed the line from exceptionally ambitious to improper. The voting drive was led by two prominent Democrats — Jones and Willard Smith, a long-time leader in the local Democratic Party. The men systematically targeted trailer parks, low-income senior housing and nursing homes. They helped more than 120 residents vote through the mail — by requesting the ballots, filling them out and mailing them back in.

Questions include whether the men violated the law by taking the marked ballots of other voters into their possession, whether the two witnesses who signed the ballots were actually present when the ballots were marked, whether voters were intimidated into voting for a particular candidate, and whether the men violated state law by marking the ballots of nursing home residents on their behalf.

The investigation was concluded by last summer, but the U.S. Justice Department in Washington, D.C., asked the state Board of Elections to share the findings with it. The Justice Department finally finished up with its review of the case, freeing up the state board to release its investigation.

“They have verbally told us they would be sending us a letter that they came to the same conclusion that we did,” said Gary Bartlett, the director of the N.C. Board of Elections.

The investigation results have been reviewed by the chairman of the state election board, who decided there was no need for a review by the full five-member board, according to Bartlett

Smith, who has been conducting voter drivers for decades, said he was confident the investigation would show no wrongdoing.

“I knew that all the time,” Smith said. “There wasn’t nothing to it to start with.”

Smith said the investigation was instigated by Republicans who were mad they got beat in the commissioner election.

“It’s hard to win an election after it is over, but that’s what they tried to do. When the polls come and winners declared, they should just go on home,” Smith said. “It was just something to gripe about.”

John Herrin, a Republican who serves on the Swain County Election Board, brought the alleged irregularities to the attention of the state Board of Elections, sparking the investigation. He said he is disappointed with the outcome and still believes there was wrongdoing. But he hopes it will prevent below-bar activity during future elections.

“I would hope that everyone will act in an upright and proper manner,” Herrin said.

Herrin said the allegations were not a ploy to overturn the Democrats’ victory in the election.

“It disappoints me someone would cheapen it to that point. We aren’t talking about an election, we are talking about people’s rights,” Herrin said.

The mail box

In the old days, Smith would orchestrate massive voting campaigns that employed a team of drivers to haul people from across the county to the polls on Election Days. But in recent elections, thanks to a law that allows people to request ballots through the mail, things got a lot easier.

Then men provided forms for voters to sign requesting a ballot, then mailed the requests off for people. When the ballots arrived, the men returned to help the voters fill them out and then took them to be mailed.

Smith and Jones took dozens of ballots into their possession during the voting drive, making several trips to the post office with stacks of ballots.

The law says only a near relative or legal guardian can take a voter’s absentee ballot into their possession to be returned to a county board of elections. But the state statute also says a voter can legally request assistance “voting their ballot,” and some would argue getting the ballot into the mail is part of voting.

Bartlett said they asked both the state Attorney General’s office what to do about the discrepancy in the language in this case.

“They have advised us if a voter chooses to give an enveloped ballot to be mailed by third party, then that is not a violation,” Bartlett said. When the investigator interviewed people about this, they all said they willingly gave Smith and Jones their ballots to be mailed.

Bartlett said there is a circumvention whenever a ballot is handed off to a third party. However, it was flagged as an area of concern for “possible follow-up.”

“Although there has been no complaint about the mailing of sealed absentee ballots by someone other than a near relative, this activity by Mr. Jones raises the question whether it is inconsistent with the statute,” the investigation report states. Clarification is needed on the “propriety of a non-relative delivering sealed ballots to be mailed,” the report states.

The laws governing mail-in ballots are leftover from a time when only those with a special reason for not making it to the polls on Election Day were entitled to vote by mail with an absentee ballot. Now, anyone and everyone can utilize absentee ballots, and issues are arising with the language that didn’t used to be an issue.

Bartlett said the language could use redoing.

“I’ll ask the General Assembly to look at it. Probably what we need to do is have clearer language so no one sees it as a violation or a circumvention,” Bartlett said.

Herrin disagrees with the infractions being chalked up to a “gray area.”

“We aren’t talking about Joe Schmoe who went out here and helped some little old lady who couldn’t get to the post office box,” Herrin said.

He still believes the investigation should be sent on to the district attorney.

“The law was written in black and white. Interpretation of the law does not belong to us. It belongs to the courts,” Herrin said. “It is up to the courts to decide whether he did wrong or not. To go out here and start hunting the gray area, we circumvented the judiciary.”

Nursing home ballots

One positive result of the Swain County election is the passage of a new law by the General Assembly that regulates how people in nursing homes or adult care facilities can vote. Before, only a near relative could help a nursing home resident request a mail-in ballot or help them mark that ballot. Jones and Smith helped nursing home residents who weren’t near relatives mark their ballots.

The law was intended to prevent manipulation of nursing home patients who lack all their faculties. The problem, however, is that someone without a near relative to help them but who wants to vote could be disenfranchised.

Bartlett said the state Board of Elections had already identified this as a problem area, but the Swain County case provided an immediate example of why the law needed changing.

“The issue was not only one of being disenfranchised, but there is a second issue. One minute they might have full mental facilities and then next minute they are experiencing dementia,” Bartlett said.

To solve the issue, the state Board of Elections asked the General Assembly to amend state election law. The law, which passed last year, allows multipartisan teams to enter nursing homes and help patients with ballots. The teams, most likely volunteers from each party, would have to be trained in proper protocols and sanctioned by the county board of elections.

Herrin said a law passed after the fact shouldn’t excuse behavior during the 2006 election.

“The question would be was it against the law at the time it happened,” Herrin said.

But the state Board of Elections does not see the need to pursue the matter. For the record, state investigators found no evidence “of eldercare facility residents receiving improper assistance in requesting and/or voting absentee ballots,” according to the investigation report.

An examination of absentee ballot records and interviews with nursing home residents by The Smoky Mountains News uncovered cases where Smith and Jones had helped patients vote without a family member around. That’s not to say the nursing home residents didn’t want or appreciate the help.

Voter intimidation

The entire investigation was initially triggered when two people living in a trailer park claimed they had been forced to vote Democratic by Jones and Smith under threat of eviction by the trailer park owner, who happened to be Smith’s nephew. Herrin brought the case to the state Board of Elections attention.

Ultimately, it came down to the word of the trailer park owner against the word of the tenants. Ultimately, the state board believed the trailer park owner. In the report, the investigator noted that one of the tenants alleging intimidation was a convicted felon, and that they owed over $1,000 in unpaid rent to the trailer park owner.

Herrin, however, still believes the tenants.

“I have no reason to doubt their sincerity,” Herrin said. “They had everything to lose. They had nothing to gain from this.”