Appeals Court rules against incumbent in ’23 Pembroke mayor dispute
The North Carolina Court of Appeals has ruled against Pembroke Mayor Gregory Cummings in a multiyear dispute over the town’s 2023 mayoral election. Cummings has been serving in office while challenging his apparent loss by 19 votes in 2023 to challenger Allen Dial.
Cummings is a Republican. Dial is a Democrat.
The State Board of Elections, then led by Democrats, had been prepared to declare Dial the winner after the election. But Cummings challenged the eligibility of 16 voters who cast ballots in the election. Those voters claimed to live at addresses of commercial property owned by Dial.
The state elections board eventually ruled against Cummings in September 2024. A trial judge also ruled against him in March 2025.
“Here, the State Board found that ‘[Petitioner] failed to present substantial evidence establishing that the voters in question, who are mostly without traditional residences, did not reside within the town of Pembroke or otherwise establishing that the voters in question participated in some quid pro quo for their vote,’” Judge Julee Flood wrote Wednesday for a unanimous, all-Republican three-judge Appeals Court panel. “Moreover, the State Board found that, ‘even if for argument’s sake [Petitioner] had demonstrated that the voters in question should not have been permitted to vote, he has failed in the past 10 months since the election to obtain any evidence that such issues with voters in the election extended beyond those so identified.’”
“[W]e cannot say the State Board’s decision to deny Petitioner’s appeal was unsupported by substantial evidence where Petitioner failed to show he would have been successful had the contested voters been dismissed, since the margin for Dial was greater than Petitioner’s challenged votes,” Flood wrote.
Appellate judges rejected Cummings’ argument that Pembroke should hold a new mayoral election.
“[W]e cannot say the State Board’s decision not to grant a new election was not supported by substantial evidence,” Flood wrote. “Petitioner failed to show that more than one contested voter did not reside in the Town of Pembroke; thus, there were no irregularities so ‘exten[sive] that they taint[ed] the results of the entire election and cast doubt on its fairness.’ Accordingly, this argument is overruled.”
Judge Fred Gore joined Flood’s decision. Judge Donna Stroud “fully” concurred with Flood’s opinion but wrote separately “regarding my concern that this case may end up being a user’s guide on how to enlist people in non-traditional housing as voters to help you win your election.”
“That’s not this Court’s fault; that’s just the practical effect of the application of the law to these facts,” Stroud wrote. “And given the transient living circumstances of some of these voters, challenging a voter’s registered domicile after an election may prove to be a practical impossibility. This same problem could exist for any voter with non-traditional housing, but here the direct involvement of the candidate [Dial] adds another layer of concern.”
“Allowing a candidate to register voters who live — at least sometimes — rent free on his own commercial property, and allowing the candidate to serve as their mail conduit, and then to take them to vote, raises at least an appearance of serious questions about the election’s fairness,” Stroud added.
“True, he didn’t directly pay them for their votes or tell them how to vote, but did he really need to?” Stroud asked. “‘[A]t least 16 voters’ may not sound like a big deal, but this was an election won by 19 votes. This small number does not mean these alleged irregularities are unimportant for the entire State.”
“This case shows the current statute and rules allowing registration in this manner, with no meaningful way to confirm a voter’s address or domicile after an election, opens the door wide to mischief in our elections,” Stroud wrote.
“I appreciate that technically, even without these challenged voters, Dial would have won this election,” the concurring opinion continued. “The result of this election might not change, thanks to the three-vote margin, but it still demonstrates a potentially effective but questionable tactic for future elections.”
“Our election laws must accommodate the rights of voters who lack traditional housing, but these laws should at least attempt to prevent a candidate — or anyone working for a candidate — from taking advantage of the unfortunate circumstances of these voters to win an election.”
“Sadly, this case may support and encourage candidates to recruit and register voters lacking traditional housing to use both a physical address and a mailing address owned or provided by the candidate or his associates,” Stroud warned. “In small elections like this one, these efforts may provide a winning margin. And the opposing candidate in such a small election may not have the financial ability to investigate or hire attorneys to contest the questionable voters. But under the existing law, we cannot remedy this election, nor can we prevent the same thing from happening again.”
“I encourage the North Carolina General Assembly and the State Board of Elections to note the issues highlighted by this case and consider changes to the law necessary to protect public trust and confidence in our elections,” Stroud concluded.
Wednesday’s opinion was unpublished. That means it has limited value as a precedent in future North Carolina legal disputes.
In addition to challenging 16 voters, Cummings raised questions about other irregularities in the 2023 race against Dial. The two have faced each other multiple times. Their 2015 mayoral race produced results later overturned by election officials.
The election carried a “cloud of suspicion,” argued Jonathan Charleston, Cummings’ lawyer, during oral arguments before the Appeals Court in January.
“The public has an expectation that elections will be free and fundamentally fair and free of any bias,” Charleston said. “In this case, it’s not there.”
None of Cummings’ complaints would impact the outcome of the 2023 election, answered Special Deputy Attorney General Mary Lucasse, representing the state elections board.
“Petitioner claimed 16 people voted who were ineligible to vote,” Lucasse said. “It’s uncontested that Mr. Dial won the mayoral election by 19 votes.”
“In order to have a new election, it’s important that you show that the things you are complaining about — if true — would have made a difference, and that’s not the case here,” Lucasse added.
“Getting a new election is a really, really extreme situation,” she said. “It’s a grave remedy not lightly employed.”
Stroud asked multiple questions about Cummings’ allegations involving the challenged voters. Some lived on Dial’s commercial properties. The candidate helped them register to vote. Dial’s family members notarized documents they submitted in connection with the legal battle.
“It sounds kind of crazy,” Stroud said.
“Let’s say you’re a person and you own some properties … and there are some people who are in nontraditional housing who live generally in the area, a good strategy to win an election would be to get the people registered to vote and give them your mailing address as their address, and then offer them transport to the polls at the time of the election,” Stroud added. “That’s OK under existing state law?”
“Is this OK? That’s an important question,” responded Elliot Abrams, Dial’s lawyer. “What we see is we have statutes, and those statutes have not been broken in any way.”
Abrams cautioned the court against responding to Cummings’ use of the term “cloud of suspicion,” which emerged from a precedent case in another part of the state involving evidence of widespread vote-buying.
“As we talk about cloud of suspicion, what we’re doing if we set that bar low is we create a process in which we don’t have finality in elections,” Abrams argued. “And so I think what we need to do is stick with the statute … that talks about irregularities that may have changed the result of the election.”
Cummings’ lawyer placed the number of challenged voters in context. “Nineteen votes out of the total cast is 5%. That’s material,” Charleston said.
An all-Republican three-judge appellate panel issued an order in April 2025 effectively blocking certification of the 2023 mayor’s race. Flood and Judges Michael Stading and Thomas Murry granted Cummings’ request for a writ of supersedeas.
The writ blocked a lower court order that would have allowed election officials to certify Dial as the election’s winner.
The challenger Dial led the incumbent Cummings by 19 votes (197 to 178), according to State Board of Elections records of the November 2023 contest.
“Appeals Court rules against incumbent in ’23 Pembroke mayor dispute” was originally published on www.carolinajournal.com.
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