The state Attorney General’s Office has filed a motion asking an appeals court to withdraw and amend its ruling in last fall’s disputed Clayton Town Council election, a spokeswoman said this morning.

The motion, filed by Deputy Attorney General Susan Nichols, asks the court to consider how a change in state election law affects its decision. Last Tuesday, the N.C. Court of Appeals upheld a decision by Wake County Superior Court Judge Robert Hobgood. Hobgood had ruled in February that all five original candidates for two seats on the Clayton Town Council should appear on the ballot in a new election.

Two of those candidates -- Alexander R. Atchison and R.S. “Butch” Lawter -- had sued to have a new election after a voting mix-up in November. During the November election, 18 out-of-town voters got in-town ballots and two in-town voters got out-of-town ballots.

The State Board of Elections had appealed Hobgood’s ruling. The Board of Elections argued that only the second- and third-place finishers -- Art Holder and Lawter -- should be on the ballot because they were the only ones who could have been affected by the voting mix-up.

In the election, Alex Harding received 527 votes, placing him first in the race for two seats. Holder had 516 votes, and Lawter had 513 votes. Atchison finished fourth with 457 votes, and Michael Starks was fifth with 124 votes.

In its ruling, the appeals court cited a state law that says all candidates in an original election must appear on the ballot in a new election. The law made an exception if the irregularities in the original election could not have affected the election of one or more of the leading vote-getters.

The judges said that because the three leading vote-getters were within 18 votes of one another, they could have been affected by the voting problem. Therefore, the court said, the state law required the inclusion of all the original candidates in the new election.

But Nichols, in her motion, said the State Board of Elections did not learn of a recent change in state election law in time to ask the appeals court to consider how it might affect the case. However, she said, the Attorney General’s Office had notified the court in July that the General Assembly had passed a bill that changed how the state handles disputes in multi-seat elections.

Gov. Mike Easley signed the bill into law Aug. 2, three days before the appeals court filed its ruling. The law now states that only those candidates who could have been affected by a voting mix-up should appear on a second ballot.

Because of the change, Nichols says in her motion, Atchison and Starks would not be entitled to appear on the ballot in a new election. And she said in the motion that the law should govern a new Clayton election “because the ordered election is truly a new election.”

“The old election cannot be re-done,” the motion reads. “For example, the residents of the Town of Clayton will have changed by the time this new election is held -- some will have moved out of the jurisdiction and others will have moved into it since November 2007. Only those voters who are eligible to vote at the time of the new election will be allowed to do so, and those who have lost their eligibility will not be allowed to vote.”

Noelle Talley, a spokeswoman for the Attorney General’s Office, said she did not know when the Court of Appeals would hear the motion. Had it not been disputed, the appeals court’s decision would have taken effect Aug. 25.