Board Of Elections Dismisses County Commissioner Primary Protest

Fred Smith (seated, second from right) reviews documents with his attorney John Branch (seated, far right).

SMITHFIELD – Following four hours of testimony, the Johnston County Board of Elections voted unanimously this afternoon (Tuesday) to dismiss the protest filed in the primary election for District 1 Johnston County Commissioner.

Johnny Hill had filed the protest after Fred Smith defeated Michelle Pace Davis in the Republican commission primary on March 3, 2020.  Smith won by 52 votes.  Mr. Hill contended a “fake voter guide” distributed by Citizens for the Betterment of Johnston County violated state election law, and their alleged misconduct and actions were enough to cast doubt on the outcome of the race.

Board of Elections Director Leigh Anne Price testified she began receiving calls shortly after the polls opened for the March 3rd primary about the voter guides. In all, Mrs. Price testified she received 25 to 30 calls. She said most were complaints from citizens who also wanted to know what the board of elections was going to do to stop them.

Price said Johnston County Republican Party Chairman Darryl Mitchell also visited the Board of Elections Office in Smithfield that morning asking what could be done to stop the distribution of the flyers.

Hill testified the political action committee (PAC) that distributed the voter guides was not registered with the NC Board of Elections (NC BOE) at the time they were handed out at the polls and was “illegal conduct.”   Hill said there were paid temporary workers at multiple polling places handing out the flyers.  Only after the primary, Hill said a quick effort was made by organizers to get the PAC registered.

Hill contended the PAC was organized on February 26, 2020 and by law had 10 days to file paperwork with the NC BOE. The filing was postmarked March 13 and received by the NC BOE on March 18, well past the 10 day requirement, he stated.

Attorney John Branch from Shanahan Law Group in Raleigh, a laywer representing Fred Smith, objected to Hill’s testimony saying he was offering testimony as an expert witness and was not qualified to present the evidence.  Branch said Mr. Hill failed to provide statements the flyers were distributed in more than one precinct and questioned why the handout was wrong.  Branch said no one offered any evidence a single vote was changed by the handout.

Smith’s attorney also argued Hill had failed to meet the burden of proof as required in a formal protest hearing.

Under cross examination,  Hill was unable to provide reference to any state law that prohibited a PAC from distributing voter guides.  Smith’s attorney also argued there was no connection between the voter guide and his client’s campaign.

Johnny Hill prepares to give testimony during a July 14, 2020 hearing before the Johnston County Board of Elections.

Fred Smith testified he was not aware of the voter guide that supported his candidacy until the morning of the primary election.  Smith said he learned about the guide while visiting the Archer Lodge precinct shortly it had opened.  Smith said he believed most voters had their minds made up before going to vote and felt a voter guide had little chance of changing a person’s vote.

“I personally never saw a palm card passed out on Election Day,” Mr. Smith testified. In describing the individuals who were handing out the guides, “They looked like ducks out of water… They looked discontented.”

Election Board Chairman Woodruff questioned if Mr. Smith knew his son had contributed to the PAC behind the voters guides. Smith said his son, Reed Smith, told him after the election he had contributed to the PAC but not before Election Day.  Mr. Smith said he did not remember exactly when Reed Smith told him he had contributed to the Citizens for the Betterment of Johnston County PAC.  Mr. Smith did say, however, that he was told Gray Wolf Development was behind the PAC.

“I did not have anything to do with that committee. Everything we did was honest, above board and right,” he stated.

Also offering testimony during the hearing were four citizens: Jonathan Stovall of Clayton, Christine Livingston of Benson, Jason Perdue of Clayton, and Gloria Thornton of Four Oaks.

Stovall testified the individual handing out voter guides at a Cleveland precinct distributed approximately 250 to 300 to voters that day while he was present.  He said the guides closely resembled Johnston County GOP voter guides handed out during the General Elections.  The person handing them out to potential voters described them as “Conservative Voter Guides” and “Republican Voter Guides”.

Livingstone testified she had a photograph sent to her of Fred Smith allegedly putting his hand on the back of a poll worker distributing the flyers at a precinct.  Attorney Branch requested to see the photograph and showed the picture to Mr. Smith.

Thornton said under oath she personally saw the flyers being distributed at six voting sites around the county.

Jason Perdue said he was a poll worker for Rep. Donna White and while at a voting precinct at River Dell Elementary he encountered two workers handing out the guides.  Both had an odor of alcohol, he testified.

Branch objected to the testimony of all four individuals claiming it was hearsay evidence.  The Board of Elections allowed the testimony.

Following closing arguments this afternoon, the Johnston County Board of Elections voted unanimously to dismiss the election protest filed by Mr. Hill.

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