December 2 - Election Protest Hearing
The Union County Board Elections met on Monday to hear testimony concerning a Marvin election protest filed by Mr. Christopher Smith on Nov. 15. The hearing was held to determine whether election laws had been violated or whether there had been misconduct which cast sufficient doubt on the outcome of the 2019 Marvin electoral race.
An article in the Enquirer Journal (EJ), called Pollino No-Show at Mayoral Race Hearing stated:
Mr. Christopher Smith, a veteran of the United States Army, was the sole candidate in the mayoral race until Election Day (Nov.5), when incumbent Mayor Joe Pollino won as a write-in candidate by 18 votes; however, Pollino did not file as a write-in candidate with the Union County Board of Elections. Smith filed an election protest on Nov. 15 with both the North Carolina State Board of Elections and the Union County Board of Elections that alleged violation of election laws.
The Protest Petition
In his protest, Mr. Christopher Smith describes threats and intimidation by Mayor Joe Pollino, newly elected Councilors Bob Marcolese, Jaime Lein, Planning Board Chair John Jones, and Planning Board member, Michael Lavelle. The threats and intimidation were not directed at Marvin voters but at Chris Smith, as a mayoral candidate. While considering a candidacy for mayor, Smith spoke with Pollino and asked him if he intended to run again. Pollino said he would not run.
The argument made in the protest, and at the hearing, was that the onslaught of threats and intimidation in the final days of the election emotionally, physically and strategically impacted Smith's voter outreach. For example, Michael Lavelle's attempts to physically impede Mr. Smith's ability to greet voters at the Marvin Elementary polling station (without fear of instigating another altercation). In another example, Mr. Smith and his attorneys explained how Mr. Smith had planned on conducting door-to-door canvassing in important neighborhoods but was consumed with confrontation after confrontation from his opponents.
Evidence was also presented which showed how defendants purposefully manipulated Chris Smith's election material to mislead voters about who Chris Smith was supporting. This breach of election law purposefully mislead and confused voters, thereby manipulating and/or suppressing votes. Given the 18 vote difference between Pollino and Smith, Smith and his attorney argued that collectively, unlawful conduct likely cost Mr. Smith 19 votes in the Marvin mayoral election.
At the hearing, Smith testified under oath and recounted several events that were also included in his election protest.
November 2 - Smith Re-Assesses Council Candidate Motivations
Two weeks prior to the election, Smith told Kim Vandenberg he no longer supported Lein and Marcolese due to what he believed to be inappropriate behavior.
Smith contacted Mary Shkut, wrote a letter of support for Shkut's write-in candidacy and authorized it. Shkut then published the letter to her website, mary4marvin.com. In his protest and in his testimony, Smith said he began receiving phone calls on Nov. 2, from Bob Marcolese and Jaime Lein who were angry about Smith’s letter of support for Mary Shkut’s write-in candidacy. Smith said he also received upset/angry phone calls from Kim Vandenberg, Mike Vandenberg and Joe Pollino. The threats began with these phone calls.
In his hour-long phone conversation with Pollino, Smith said the Mayor alleged Shkut either bribed Smith or planned to blackmail him to get support. Smith testified Pollino then implied he would concoct a rumor about Smith having an affair with a woman at the Firethorne Country Club. Smith testified that Pollino was on speaker phone and Smith's wife and sister listened to the conversation. Smith’s wife also testified to this. Smith said he felt Pollino's threat was "credible" and worried Pollino would try to produce a woman who would perpetuate the rumor about the affair.
November 4 - Premeditated Planning Board Meeting Confrontation
The day before Election Day, the Planning Board hosted a regular meeting. Smith has been a member of the planning board since January 2019. Lavelle (also a planning board member) texted Smith for the first time, to affirm Smith would attend the Planning Board meeting and ask if Smith would stay after the meeting for a conversation. Smith and two witnesses at the hearing said Marcolese, Lein and Pollino then showed up at the Planning Board meeting. None of the men had business before the board that night. Additionally, witnesses said Marcolese and Lein had never attended a regular planning board meeting. Meanwhile, witnesses say Pollino last attended a regular planning board meeting over a year ago, before showing up on November 4, 2019.
After the meeting, Smith described a pre-meditated encounter which he said felt like a "school yard beat down." Smith describes being cornered by Pollino, Marcolese, Lavelle and Lein at the end of a ramp outside the Village Hall’s entrance. He said the four men began yelling in his face. Smith said Pollino told him his campaign was over.
Two witnesses from the Marvin Planning Board said they saw parts of the encounter. They remarked that it looked very aggressive and intense. They also testified that either they couldn’t hear what was said, or could only hear ‘snippets’ of things being said, however the words were out of context for them.
One witness recounted the encounter lasted at least 10 minutes. When asked whether it was violent, the witness said, "it depends on your definition of violent". The witness said they work in some rough areas of the city. They considered what they witnessed to be "very aggressive" behavior by that measure. The witness testified that the situation made her "uncomfortable". She testified to feeling guilty for having left the scene as she even became concerned for her own safety.
Another witness said he recognized each of the parties engaged in the situation were involved in the election and thought the situation might be related. He considered trying to diffuse the situation but decided against it as he felt sure his efforts would be dismissed.
In his testimony Smith said he reported the incident to the County Magistrate the day after the election. He also notified the Board of Elections on the same day. He then followed up with the BOE by filing his election protest. He did not report the incident to the police.
November 5 - After Effects & Election Day Intimidation
On the day of the election, Smith said he made plans to be at the Marvin Elementary polling station. He arrived at 8:30 a.m. After seeing Pollino and Lein, he felt a need to return home due to feelings of intense feelings of anxiety and apprehension. He felt able to return to the elementary school about an hour and a half later. At the polling station Smith says he endured physical impositions on his ability to greet voters, by Mr. Lavelle. Additionally, Mr. Jones physically threatened him with bodily harm, using Jones' SUV.
December 2 - Election Protest Hearing
Smith and his attorney, Bo Caudill, were present at the hearing. Kenneth Helms, the attorney representing Pollino and his cohorts, was also present at the hearing; however none of his clients were. Instead, Attorney Helms presented the Board of Elections with approximately eight affidavits. Smith’s attorney, Bo Caudill, objected to the submission of eight affidavits which he had not seen before. He provided scholarly legal justifications for his objections. He then added that neither the Board, nor he, could cross-examine “affidavits”. In contrast, Mr. Chris Smith and other witnesses had testified in person and withstood the questions and cross-examination of the defendants.
The Enquirer Journal article described powerful testimony provided by a Marvin resident who attended the hearing to provide independent testimony:
… a resident of Marvin who was not a witness, said she voted at Sandy Ridge Elementary. She said she was approached by Lein, who gave her a "huge bear hug” which was "shocking" to both her and her husband because they had never met Lein before. She said she was given a political advertisement that was made and paid for by Smith's campaign, but it was modified to make disparaging remarks against Shkut. De Macio is a retired paralegal of 24 years from Virginia. She said if a defendant is not present at a hearing, it is as if they are admitting their guilt. She concluded by saying she is embarrassed" to admit that she lives in Marvin, because of the ongoing election drama.
December 2 - Election Protest Hearing
Smith and his attorney, Bo Caudill, asked Board of Election members to protect the integrity of free and fair elections and help ensure elections were about the fair exchange of thoughts and ideas rather than a reflection of brute force on the playing field.
According to the Board's Attorney, Terry Sholar, the BOE was not required to make a decision on Monday however, deliberation would need to be conducted in public. The Board recessed the hearing until December 3 at 2 p.m. at the Board of Elections office so members could have time to read affidavits.