MORRISVILLE - Although Michael Schlink beat incumbent Linda Lyons for the District 1 council seat by two votes, he may not be sworn in Dec. 13 with the other winning candidates.

An appeal protesting the rejection of 11 Morrisville ballots has been filed with the N.C. Board of Elections. And until the state board renders a decision, Lyons will continue to hold the seat, said Wake County election director Cherie Poucher.

The appeal is the latest in the battle over who has the legal right to the District 1 seat. Allegations of absentee mishandling by two sitting Morrisville Council members, one of whom was Lyons, were forwarded to the State Bureau of Investigation earlier this month.

The state board could choose to uphold the local board's ruling, send it back for a full hearing, or decide to hold their own hearing. So far, no action has been taken.

Appeal filed

Attorney Mike Weisel filed the appeal last week on behalf of Vivian Ann Mills and Carolyn Pearson, contending that the Wake County Board of Elections disenfranchised voters when they rejected ballots.

Weisel represented Lyons in her recount request. His firm is now representing Mills and Pearson for free, he said.

"Our attitude is that everyone should be counted," Weisel.

He said the errors were not made by the voters, and they should not be penalized.

In total, the local election board denied 19 Morrisville absentee ballots on the grounds they had been mishandled. In one instance, Lyons, who was running for re-election, signed witness documents on absentee ballots verifying the identity of the voters. It is illegal for a candidate to serve as a witness, according to state law. Eleven ballots were rejected because Lyons served as witness.

In previous interviews, Lyons said she was unaware of the prohibition.

The Wake County Board of Elections notified those 11 voters the day before the election and told them to vote on Election Day. Eight of the 11 voted again.

"No one's vote should be counted twice, but no one should have to vote twice for their vote to count," said Weisel.

Weisel also said the directions given to voters about filing absentee ballots are vague and did not set limitations on who could be a witness.

In the Quick Step instructions it reads "need a witness present who is at least 18 years old."

Another eight absentee ballots, including one filed by Schlink's daughter, were rejected because they arrived after Election Day. Some also lacked postmarks.

Weisel said the board wrongfully rejected ballots that arrived up to three days after Election Day. State law requires the admittance of such votes as long as they were postmarked by Election Day, the complaints argue.

Poucher said the board was following the administrative code, which allows extra time only for military ballots.

Awaiting decision

Schlink said the Morrisville District 1 seat should remain empty until the state election board makes its decision.

"I would argue that her seat expires," he said.

Schlink has hired an attorney and said he is waiting on "pins and needles" for the state's decision.

"Once you delve into the facts, these people weren't disenfranchised," said Schlink. "They had 13 hours to vote. The people who are being disenfranchised here are the people who voted. I think justice delayed is justice denied."

This is not the first time voting irregularities have delayed a swearing-in ceremony. In 1999, John Ellis beat incumbent Bob Barker by 16 votes for the Fuquay-Varina mayoral seat.

Barker challenged the results by recount, state appeal and in civil court, alleging illegal votes by non-residents had been cast. Barker continued to serve as the town's mayor during the state appeal.

The local board found nine improper ballots might have been given out, but it was not enough to change the outcome. A Court of Appeals also struck down Barker's request and Ellis was sworn in about two months late.