May 24, 2016 (Carthage, NC)–Damien Omar Sullivan was a Jamaican citizen in 2005, when he registered to vote in Aberdeen, NC and then voted in 2008’s primary and general elections; but according to court records of his Feb, 2016 bench trial, the charges were dismissed.
The surprising dismissal came, in part, because a DMV employee had been the person who asked Sullivan if he “wished to register to vote,” and this was immediately after issuing him a Legal Presence” (LP) driver’s license. He even used his official Jamaican passport to confirm his identity, but nobody at DMV seemed to care about election law.
Sullivan’s illegal status was first discovered during a 2011 State Board of Elections audit of DMV records, reported by VIP yesterday (linked here).
The law seems clear on the matter, since NCGS § 163-275 (18) declares it a felony, “[f]or any person, knowing that a person is not a citizen of the United States, to instruct or coerce that person to register to vote or to vote.”
But, while it’s a felony for anybody to help him get registered and it’s a felony for him to vote, his admission of those facts was not enough evidence for the (now) retired Judge Ken Crow to allow a full hearing on the evidence.
Mr. Crow elaborated on his ruling (beginning at the 10:50 in this streaming audio file) during a May 20, Lockwood Phillips segment, saying that Sullivan, “was told to register to vote [by a DMV employee],” adding that Sullivan “was comforted and assured that he had the right to vote.”
Among the myriad questions this case raises, we’re concerned that neither of the above two claims were in the official transcript (which can be read in its entirety by clicking here), which makes us wonder how these facts came to light. Claiming somebody “told him to vote,” seems like inadmissible hearsay evidence, but Judge Crow reported these details to a New Bern / Morehead City radio audience.
How the Case Was Lost
A key point is that any jury would hear about Sullivan’s voter history and conclude he intended to vote. That fact is probably why he went for broke and waived his right to trial by jury. The ploy seems risky; but not really, since vote fraud is only a Class i felony. An attorney we consulted for this story said that even a conviction of a Class i felony only brings probation as the maximum sentence and there is no jail time involved.
On the question of intent, Mr. Sullivan’s attorney, Stephan Lapping, earned his pay by directing Judge Crow to an irrelevant but highlighted NCGS § 163-275, subparagraph (7) of the statute, which requires an intent to “vote illegally,” without mentioning subparagraph (18) which does NOT seem to require intent when it comes to non-citizen voting.
NCGS § 163-275 (7) For any person with intent to commit a fraud to register or vote at more than one precinct or more than one time, or to induce another to do so, in the same primary or election, or to vote illegally at any primary or election.
NCGS § 163-275 (18) For any person, knowing that a person is not a citizen of the United States, to instruct or coerce that person to register to vote or to vote.
We welcome any election law attorneys, if they care to help our readers understanding why Mr. Sullivan could not have been prosecuted under (18) and whether or not “intent” is required under that subparagraph.
In any event, the Legislature must act to raise the risk for people committing vote fraud. Currently, the penalties amount to a slap on the wrist, leaving prosecutors with zero leverage.
Bottom Line: While We the People lost what should have been a slam-dunk vote fraud case, there is a silver lining.
If Sullivan had quietly pleaded guilty to the felony of voting while not a US citizen, the public would have never learned how in 2005, the NC DMV illegally registered him to vote in the first place . . . so we should thank him for fighting so gallantly.