A surprise court order triggered a last-minute move Friday by Gov. Roy Cooper to continue the state election board’s probe of fraud allegations in the 9th District congressional race, even as Charlotte Republican Mark Harris demanded to be named its winner.
With legal issues far from resolved, the skirmish could delay by weeks the final outcome of Harris’ race with Democrat Dan McCready, who on election night appeared to have lost by 905 votes. Also Friday, the incoming House Majority Leader, Steny Hoyer, said the House won’t seat Harris on Jan. 3 because of the allegations.
“In this instance, the integrity of our democratic process outweighs concerns about the seat being vacant at the start of the new Congress,” Hoyer said in a statement to the Observer.
Both sides, Democrats and Republicans, accused the other of trying to corrupt the process. Between them is the state elections staff, which is deep into an investigation of whether Harris benefited from an alleged illegal get-out-the-vote campaign but found its board abruptly dissolved.
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A three-judge panel in October ruled the board’s makeup unconstitutional, but had delayed disbanding it while the election and fraud investigations were underway. On Thursday, the panel accused the board of ignoring the court’s directions and dissolved it effective at noon Friday.
“The fact remains that a critical election hangs in the balance,” the judges wrote, “and the voters of the 9th Congressional District are entitled to have their elected representative in place by the time Congress convenes (on Jan. 3), or to know why they will not have their representative in place....”
The court order set off a scramble by Cooper and Harris.
Cooper announced he will name an elections board to serve until Jan. 31, when a new law takes effect restructuring North Carolina’s elections and ethics boards. The current nine-member board will be replaced by separate five-member elections and eight-member ethics boards.
“It is vital that the State Board of Elections finish its investigation of potential election fraud in the Ninth Congressional District,” Cooper said in a statement.
The Republican-controlled legislature on Thursday overrode the governor’s veto of a bill that set the Jan. 31 deadline for creating separate boards. Cooper had objected to a provision in the bill that kept campaign finance violation allegations out of the public eye.
Cooper wrote both state party chairs to request their nominations for the interim board by the close of business Friday.
NC Republican Party executive director Dallas Woodhouse quickly tweeted that Republicans wouldn’t be making any appointments to the governor’s “unconstitutional Kangaroo Court of Elections.” The party will only make appointments to the board that takes office Jan. 31, he said.
Cooper’s office released a statement late Friday afternoon saying his general counsel sent state GOP chairman Robin Hayes a letter reiterating the legal basis for the governor’s actions. Cooper’s spokesman Ford Porter called the refusal to submit nominees “an attempt to impede and obstruct an ongoing investigation.”
The elections board will “continue to investigate the irregularities in the 9th District,” elections board spokesman Patrick Gannon said. “Our attorneys continue to review the effects of the court order.”
Harris files emergency petition
Harris filed an emergency petition with the board Friday morning asking it to certify the 9th District election results, giving him the win over McCready, before its authority ended at noon.
That didn’t happen, setting the stage for a likely legal challenge. In response to Harris’ petition, elections board chair Joshua Malcolm wrote that it would have required an emergency meeting to be called by Malcolm or a majority of the board, neither of which occurred. Two of its nine members requested an emergency session to consider the petition, he added.
State investigators are scrutinizing the get-out-the vote work of a Bladen County political operative the Harris campaign hired, McCrae Dowless. Witnesses have said Dowless’ employees collected signed absentee ballots from voters, which would be a violation of state law.
A lawyer for Dowless issued a statement earlier this month, saying her client “has not violated any state or federal campaign laws and current ongoing investigations will prove the same,” The News & Observer reported.
The elections board had scheduled a hearing on the allegations for Jan. 11.
“This Jan. 11 (9th District) hearing might not happen and might leave the (U.S.) House to conduct its own investigation next week,” retired legislative lawyer Gerry Cohen, an expert on elections law, told MSNBC in an interview Thursday night.
The Harris petition said his campaign “is not aware of irregularities or other concerns sufficient in number to change the outcome of the election in the 9th District.”
The fraud investigation could be continued by the elections board that will be created by Jan. 31, the petition argued. Not certifying the election results now, it continued, would deny the district’s voters representation in Congress.
The state Republican Party encouraged Harris to file a federal lawsuit to force the state board to certify him as winner of the race. The party interpreted the judges’ order dissolving the elections board as agreeing with the GOP’s claim that Malcolm, a Democrat who was appointed by Cooper, was “making up the law as he went along.”
“While the North Carolina Republican Party supported a full and complete investigation into alleged voting problems and even supported a new election under very specific circumstances,” Hayes said in a statement, “the continued delays in the hearing and the absence of a defined election protest made it clear that the Democrats had no interest in finding the truth, only finding a way to keep fishing for a way to overturn the election no matter how long it took.”
McCready’s campaign fired back, charging that Harris had broken his promise to support a full investigation into the Bladen County allegations.
“All North Carolinians — regardless of party — deserve a swift and complete investigation without panicked obstruction from Mark Harris,” McCready spokesman Aaron Simpson said in a statement. “Now more than ever, we deserve to know what Mark Harris knew and when he knew it.”
Waiting for Harris subpoena responses
Malcolm said that the Harris campaign has not fully responded to a Dec. 1 subpoena, supplying 398 pages of documents in response while indicating it had 140,000 additional documents that were not produced.
“We have received repeated assurances — as recently as Dec. 24 — regarding your efforts to comply with the subpoena,” Malcolm wrote. “You are hereby requested to fully comply with the board’s subpoena so as to not further impact the agency’s ability to resolve the investigation.”
The board’s staff continues to try to interview Harris, he added. The board’s investigators have conducted more than 100 interviews and are reviewing more than 182,000 pages of material produced in response to a dozen subpoenas, he said, and issued additional subpoenas Friday.
On Friday evening, Harris’ attorney issued a statement saying that Harris “has cooperated and intends to continue cooperating.”
The attorney, David Freedman, said the elections board demanded “voluminous” documents and demanded a response from Harris in less time than its staff could reasonably review them.
The state Democratic Party called the Republican push to seat Harris an attempt to short-circuit the state investigation and steal the election.
“They can’t claim the process is tainted when their own hands are unclean,” Democratic Party chairman Wayne Goodwin said at an afternoon news conference in Raleigh.
““They should stop distracting and delaying and allow the State Board of Elections in North Carolina, however constituted according to the law, to do its job.,” he said.