The opinion
Judge Orr
dissenting.
I respectfully dissent in part from the majority’s opinion. First, the majority declines to address the correctness of Judge John’s issuance of the Temporary Restraining Order (TRO) on the grounds that the TRO was not appealed from. In light of the procedural and factual history of this case, I disagree with declining to address this question. In this regard, I do not find Von Ramm to be controlling. Here, the defendants properly appealed from the final order of Judge Freeman and set forth an assignment of error raising the question of the TRO’s validity. Considering the language in our Supreme Court’s Writ of Prohibition in Payne v. Ramsey, 262 N.C. 757 , 138 S.E.2d 405 (1964), the question of the jurisdictional authority of Judge John to *643 grant the TRO should be reviewed. In Payne , the Supreme Court specifically stated in regard to a question concerning the grant of a TRO by a Superior Court Judge regarding certain election officials, “the Superior Court... as well as the Judge of the Superior Court who issued said two temporary restraining orders, do not have jurisdiction to institute and maintain said actions or to issue said restraining orders but that the remedy, if any, is ... to appeal to the North Carolina State Board of Elections
The reasoning in Payne is of particular significance when viewed in the light of the potential problems arising from the type of conduct at issue in the case sub judice. Under the majority’s reasoning, anyone could appear in the waning.hours of an election before any trial judge and obtain a TRO requiring a county board of elections to keep the polls open beyond the statutory limits and overrule the decision of the local board to not extend the hours. Such an action would appear, according to the majority, not only to be permissible, but would leave the Board without any recourse since the TRO’s practical effect would terminate at the closing of the polls. Since there are numerous remedies for post-election relief if warranted under our laws, the rights of candidate and voters would be protected without the conduct complained of here.
Under my view of the law, I would conclude that Judge John did not have jurisdiction to stay the closing of the polls and extend the hours for voting. That, plus the lack of a bond being posted, would constitute wrongful restraint per se.
As Pickard v. Castillo, 550 S.W.2d 107 (1977) notes: “It has been a long established rule that once the election process commences, the courts of this State have no jurisdiction to interfere with the political rights of the people to hold an election” and “[furthermore, the entire election process is a matter for legislative regulation and control.” (Citation omitted). “As to such matters, the law does not purport to substitute the judgment of a judge (or jury) for that of duly elected officials, and the judiciary should not, in the absence of a clear mandate, interfere in the conduct of an election after the election process has begun . . ..” Id. at 111 .
Finally, I do not disagree with the conclusion of the majority that defendants’ claim of wrongful restraint should be remanded because the trial court used the incorrect standard of review. I would, however, remand for a new hearing on the issue of damages only since, as *644 previously noted, the lack of jurisdiction to enter the TRO would constitute worngful restraint per se.