After reviewing Faison’s request for an investigation into Kirby’s residency Friday, the three-member Board of Elections decided enough questions had been raised by the challenge to warrant a hearing, which they set for Monday, Aug. 9, at 7 p.m.
The only ones being called to the hearing, which will be held at the Board of Elections office on Rowan Road, are Faison and Kirby, or their representatives, as required by state elections law. The two, members said, will be sent letters calling them to the hearing. Other people can be subpoened to testify should the hearing warrant further review before a final decision can be reached.
“They (Kirby and Faison) will need to bring evidence that supports their case,” said board member Ted Lockerman, who made the motion to move forward with the hearing. “The burden to prove rests with Mr. Faison in this case, since he’s the one that brought the challenge, but Mr. Kirby needs to show that his domicile is where he says it is.”
In Faison’s challenge, he claims Kirby does not live at 820 Southwest Blvd., the address listed on his voter registration. Instead, Faison alleges, Kirby resides at 476 Indiantown Road, in county commissioner District 3.
Kirby, who won the primary race with 63.8 percent of the vote to Faison’s 36.72 percent, has denied the allegation, saying the Indiantown Road residence is his mother’s address and one he hasn’t resided in for many years.
“I’m a resident of District 5 and I have been since I moved back to Clinton,” Kirby said a week ago. “The allegations being made are totally false.”
Elections director Donna Marshburn verified Thursday, and reiterated it again to the board Friday, that Kirby has voted as a resident of Southwest Boulevard since 1992.
“The question is one of domicile, and that’s a hard one to prove,” Marshburn told the board.
Lockerman concurred, but added, “It is tough to prove, but that’s not to say it can’t be proved. We have to listen to all the evidence provided and decide our findings based on the greater weight of that evidence.”
Lockerman, a retired attorney, noted that Kirby’s assertion that his domicile is 820 Southwest Blvd., alone, carries a lot of weight.
“It’s not everything, but if a man says his domicile is a certain place, it’s significant. Of course, there are other factors that must be considered.”
Those factors are ones Faison and Kirby will likely be asked to substantiate. In Faison’s case, board members are suggesting he bring any other documents he believes will help sustain his claim, in addition to the multiple-page document already in their hands.
Kirby, it was noted, should bring documentation, such as a driver’s license, vehicle registration or other papers that could corroborate his contention that the 820 Southwest Blvd. address, reportedly owned by his sister Mary Kirby Herring and her husband, David Nathaniel Herring, is in fact his domicile.
“If he can produce something that shows he’s paid a water bill there, his driver’s license lists that address, something like that, it’s pretty good evidence,” chairman Jackie Hobbs said.
“As far as I know, the man lives where he says he lives. I don’t know one way or the other, but that’s what we have to determine,” Hobbs continued.
Hall said questions surfaced in his mind when he checked the telephone directory to find that Kirby has two listings, both of which use his law office address, at 118 Lisbon St. rather than a personal address.
“And he lists a P.O. Box for where he gets his mail,” Hall noted.
But neither of those things, Marshburn said, reflect the issue of a domicile.
Johnnie McLean, deputy director of the state Board of Elections, said Thursday that where a person lives is often one of the more unclear areas of elections laws.
“People want there to be specifics, like if you get mail there, if you pay your water bill there, things like that. But one of the problems is that frequently people have second homes, at the beach, in the mountains ... and the courts don’t rule that way. Basically what’s been said is you can have as many residences as you can afford.”
But for voting purposes, she stressed, the gauge is that you can only have one place of residency. “And it has to be the intent of the voter that this is the place where the voter intends to return whenever he’s absent.”
And that’s what local elections board members must decide in this case.
“As I see it, these are the things we must look at: Number one, we have to determine whether or not there’s enough questions to move forward, we’ve done that and set the hearing; number two, if the hearing should end with us needing more information in which to base our opinion or ruling, then we can subpoena additional information or people to testify.
“That’s where we are. We want know if we will need any additional information until after our hearing,” Lockerman said.