A new state elections board expected to be named this week could finally resolve North Carolina’s disputed 9th District congressional election — or push it even deeper into uncharted territory.
Democratic Gov. Roy Cooper is scheduled to appoint the new, 5-member State Board of Elections by Thursday. It’s expected to schedule a hearing into allegations of election fraud in the 9th District.
But from there the bipartisan board could deadlock, refusing to either certify the election of Republican Mark Harris or order a new election. That would further delay resolution of a situation that already has left 733,000 North Carolinians without representation in Congress.
“This situation is unprecedented,” Democratic U.S. Rep. Zoe Lofgren, who chairs of the House Administration Committee, told Politico this month.
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Harris leads Democrat Dan McCready by 905 votes in unofficial returns. But in late November the previous state board twice declined to certify the election, citing reports of absentee ballot irregularities centered in Bladen County. The board launched an investigation, which has continued even after a court dissolved the board on Dec. 28 over a separate dispute.
Last week a Wake County judge refused Harris’ request to order the election certified, kicking it back to the elections board.
Cooper has until Thursday to name three Democrats and two Republicans to a new elections board. The board could certify Harris’ election or order a new election.
But state law requires four votes to order a new election, and three to certify Harris’ election. That means at least one Republican would have to join the three Democrats in calling a new election, or one Democrat would need to join the two Republicans to certify Harris.
“It is not beyond imagination that by a 3-2 vote the board finds that there are sufficient grounds to order a new election, but cannot secure the fourth vote to actually order the election,” Bob Joyce, an election law expert at the University of North Carolina’s School of Government, wrote in a recent blog.
“What happens then?” he added, “Perhaps the state board would decide . . . (to) issue a certificate of election to Harris. Or perhaps the three-member majority would refuse to do that, leading . . . to a lawsuit by Harris for a court order for a certificate of election.”
Charlotte lawyer Bob Cordle, a former elections board member and one of four Democratic nominees to the new board, said he believes members will make their decision after a still-unscheduled evidentiary hearing. Any vote, he said, “depends on what the evidence shows.”
Dallas Woodhouse, executive director of the state Republican Party, said he believes the new board’s two Republicans will stick with the party.
“Chairman (Robin) Hayes and our team are confident that our nominees . . . will come to the only reasonable conclusion,” Woodhouse said, “that is (the) race should be certified because Dr. Harris won more legal votes and we believe no evidence can possibly show otherwise.”
Republicans argue that nobody has shown that there are enough questionable ballots to overturn Harris’s apparent 905-vote margin. But Democrats say evidence that the election was “tainted” at all justifies a new vote. And last week Special Deputy Attorney General Amar Majmundar told the Wake County judge that the rightful winner of the election is “an open question.”
So what happens if the elections board deadlocks?
That could throw the dispute to Congress, specifically the Democratic-controlled House. Congress, which has final say over its members, could declare the seat vacant or launch its own investigation. .
“Right now, it’s not in our court,” Rep. Marcia Fudge, an Ohio Democrat who chairs the Administration Committee’s subcommittee on elections, told McClatchy this month. “Right now, it’s still being handled by the state of North Carolina. Until there is a vacancy declared in that position, we have no jurisdiction.”
In some cases, Cooper has the authority to call for a new election. Cooper spokesman Ford Porter said the possibility is still “under review.”
Joyce, of UNC, said the U.S. House is just waiting for the North Carolina process to play itself out.