“This was the first step in the process, the preliminary hearing where the board looked at the evidence that my client presented to determine whether there was probable cause that the voters that are being challenged don’t reside within the county,” said John Noor, an Asheville attorney representing Lake Santeetlah Councilmember Diana Simon. “Today, the board decided that that probable cause was present, and we’ll soon be scheduling a hearing to determine whether they’re actually residents of Graham County or not.”

The challenges  came as the result of a most unusual municipal election on Nov. 2, 2021. 

Whereas previous elections saw fewer than 80 votes cast, the most recent election saw 130 and resulted in the ouster of three councilmembers, all of whom pushed for and ultimately completed updates to the lakeside resort town’s outdated zoning policies. 

Then-Mayor Jim Hager and incumbent Councilmember Simon retained council seats, but became a minority as Tina Emerson, Constance Gross and Ralph Mitchell all earned 14 votes — good enough for a majority of seats on the five-person council. Gross was nominated to serve as mayor, despite finishing far behind Simon’s 22 votes. 

On Feb. 15, at the behest of Emerson, the town reduced the room occupancy tax rate to zero — in essence defunding the Tourism Development Authority chaired by Simon. 

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Emerson operates  a short-term vacation rental at the lake. 

Since their election, the Emerson-Gross-Mitchell faction of the council has also  cut lake water testing, slashed kudzu removal, defunded the zoning administrator and proposed abolishment of the town’s zoning code. 

During a May 26 public meeting, residents overwhelmingly opposed the proposal. 

A community survey  issued by the planning board in late 2019 as part of the comprehensive planning process asked residents to choose the town’s three greatest weaknesses. The survey received input from more than 50% of town residents. The greatest weakness, according to respondents, was Jack Gross — now-Mayor Constance Gross’ husband. Constance Gross and Tina Emerson also received votes, while no other person was mentioned by name. 

Simon filed election challenges at the time, but they were dismissed without consideration of the merits due to alleged paperwork and deadline errors. 

On June 1, Simon filed new challenges  against eight voters, which resulted in the July 7 preliminary hearing in Robbinsville. Filing fraudulent voter challenges  is a felony. 

At the outset of the preliminary hearing, which lasted more than three hours, Graham County BOE attorney Bill Cannon laid out the ground rules. 

“If the evidence presented by the challenger is sufficient for a reasonable and prudent person to believe that the challenged voter is ineligible, it doesn’t mean your belief is necessarily correct, or [that] it’s more likely true than false — at this stage of a preliminary hearing, a probability of ineligibility is sufficient,” Cannon said. “And if you find probable cause to believe that the voter is ineligible, then you would schedule a full evidentiary hearing to hear all evidence that would be presented by the challenger and the voters.”

Noor took the board through the eight separate challenges, one by one. The first six were lodged against Buncombe County veterinarian Dean Hutsell, his wife Linda and their four college-age daughters, Amelia, Kaylee, Olivia and Savannah. 

All six Hutsells registered to vote at Lake Santeetlah on Sept. 28, 2021, shortly before the Nov. 2 election, at a three-bedroom house owned by Dean and Linda. 

That house burned down in 2019, still hasn’t been rebuilt and still hasn’t received a certificate of occupancy from the county. 

Social media and Linkedin evidence presented by Noor in written complaints he filed June 1 and presented during the July 7 hearing shows all four daughters claiming residency elsewhere — Indianapolis, Raleigh and at a home owned by Dean and Linda in Buncombe County. 

Additional evidence included voter records of the family, all of whom voted exclusively in Buncombe County prior to changing their registrations. Dean Hutsell’s veterinary license is linked to a Buncombe County address, as is his vehicle registration and the tax bill for their Lake Santeetlah property. 

Graham BOE members Lowell Crisp, Billy Dittmore, Teresa Eller, and Keith “Beefy” Rogers, led by board chair Juanita Colvard, unanimously found that the challenges were properly filed and that there was probable cause to suspect improper registration. 

At one time or another during the hearing, each member of the BOE save board Chair Colvard either made a motion or seconded a motion to that effect. 

The second set of challenges focused on the Emersons, John and Tina, who list a Mecklenburg County address on multiple documents including tax bills. 

Simon took the extra step of photographing the Emersons’ Lake Santeetlah property on Thunderbird Trail on 76 separate occasions. Only once, Simon testified, did she see anyone at the property. 

Hager, a current councilmember and former mayor, was also called to testify to the photographs, some of which he took. 

Board members had some minor questions about the photographs, but an additional measure taken by Simon strongly suggested that just like the Hutsells, the Emersons may not be properly registered voters. 

Under NCGS 163-85(e), “The presentation of a letter mailed by returnable first-class mail to the voter at the address listed on the voter registration card and returned because the person does not live at the address shall constitute prima facie evidence that the person no longer resides in the precinct.”

Simon mailed identical registered letters to the Emersons’ Lake Santeetlah address, as well as their Mecklenburg County address. The Lake Santeetlah letter was returned as undeliverable. The Mecklenburg one wasn’t. 

Further testimony provided by Simon suggests that Tina Emerson switched her registration from Mecklenburg County to Graham County because she was allegedly running a “stealth” write-in campaign. Under oath, Hager concurred. 

Board of Elections members Crisp and Dittmore made the motion to find probable cause of improper registration by John Emerson. Crisp and Eller made the same motion for Tina Emerson. Both votes were unanimous. 

Now, the proceedings will move to a different stage. During the probable cause hearing, the challenged voters didn’t get to present their own evidence or cross-examine other witnesses, but in the next hearing, they’ll have that opportunity. 

“The board will talk with the different parties that are involved, trying to find a date that works for everyone and then set a hearing date. My guess is that they will be back-to-back, multiple days, unlike the very truncated version of the hearings that were today,” Noor told The Smoky Mountain News after the preliminary hearing’s conclusion. “These will be opportunities for additional evidence to be presented, cross-examination and evidence to be presented by the people who were challenged. Those could take a day, they could take multiple days. It kind of depends on how much evidence relates to each challenged voter.”

If that hearing goes the way Simon and Noor want it to, the Hutsells and the Emersons will be purged from the Graham County voter rolls and could be referred to the district attorney for felony voter registration fraud charges. They could also be held responsible for a separate set of felony charges related to voting. 

“If someone was improperly registered under North Carolina law, meaning they’re not a resident of the county, and they voted in an election in the county, that could trigger an investigation from the State Board of Elections or another law enforcement agency as to whether someone’s committed voter fraud,” Noor said. “But that’s not what was before the board today. This was just whether people were properly registered or not.”

State records show all six Hutsells voted in the disputed Nov. 2 Lake Santeetlah municipal election. Tina and John Emerson also voted in the disputed Nov. 2 Lake Santeetlah municipal election. On the day of the preliminary hearing, Tina Emerson also voted in the ongoing Graham County runoff election. 

Graham BOE Chair Colvard said at the conclusion of the preliminary hearing that she didn’t know when the next round of hearings would be scheduled, but that they would likely take place in the next 3 months. 

The result of the preliminary hearing may or may not presage the results of the forthcoming evidentiary hearing. 

If Tina Emerson is ultimately found to have been improperly registered, she’d be removed from council. However, for now, the board will continue to be seated as elected in the Nov. 2, 2021 municipal election, with the issue of the zoning code still unresolved. 

The next meeting of the Lake Santeetlah town council is scheduled for July 14. 

Tina Emerson and Dean Hutsell did not respond to a request for comment on this story.