Peter St. Onge

No, NC Republicans can’t just declare Pat McCrory a winner without courts having a say

North Carolina Gov. Pat McCrory speaks to supporters as his wife Ann McCrory listens at an election rally in Raleigh on Nov. 9.
North Carolina Gov. Pat McCrory speaks to supporters as his wife Ann McCrory listens at an election rally in Raleigh on Nov. 9. AP

There’s some misinformation going around about what can and can’t happen if N.C. lawmakers decide to intervene in the governor’s race and declare Pat McCrory the winner over Roy Cooper.

Lawmakers haven’t said they’ll do so, but House Speaker Tim Moore sure didn’t rule it out in an interview Monday with the (Raleigh) News & Observer. “The media has certainly covered the constitutional provision that gives the General Assembly the authority to weigh in on that, but given that the elections are not finalized at this point, I think further comment would be premature,” Moore told Colin Campbell.

So what’s the misinformation? The New York Times wrote Saturday, and Slate repeated Monday, that N.C. law not only allows the General Assembly to declare a winner in the governor’s race, but that the decision is “not reviewable” by the courts.

Yes, N.C. lawmakers can declare a winner, a power given to them both by the N.C. Constitution, which says the General Assembly can settle “contested” state races, but also a 2005 law cited by the New York Times and Slate that says losers in Council of State races can appeal the results to the legislature.

The 2005 law essentially spelled out the procedure the General Assembly would follow in using its constiutional authority to intervene. It was prompted by the 2004 state superintendent of education race between June Atkinson, a Democrat, and Bill Fletcher, a Republican. In that race, about 4,500 votes were lost in Carteret County when voting equipment malfunctioned. The Democrat-led legislature eventually declared Atkinson the winner.

As for whether such a decision now could be reviewed by courts, here’s what that 2005 N.C. statute actually says: “The decision of the General Assembly in determining the contest of the election pursuant to this section may not be reviewed by the General Court of Justice.” According to the state’s Administrative Office of the Courts, the “General Court of Justice” is the entire N.C. court system, which includes Appellate, Superior and District courts.

While that might mean that N.C. courts can’t question such a decision, federal courts definitely can. So says Richard Hasen, election law expert and professor at the University of California-Irvine.

Hasen told me Monday night that if lawmakers declare McCrory the winner: “It could certainly be reviewable by a federal court regardless of what the legislature says.” He went into some detail a few moments later on his election law blog, where he said that if there’s clear evidence Cooper got more votes, and there’s no plausible argument for fraud, then Cooper could claim both a Due Process and Equal Protection Clause violation if the race were handed to McCrory.

Josh Douglas, an election and constitutional law professor at the University of Kentucky, agreed that a federal court could conduct a review on Due Process or Equal Protection grounds. “If it is absolutely clear that this is a power grab by the N.C. legislature because there is no question who received more votes, then I could see a federal court saying that the legislature is violating due process by, in essence, overruling the majority’s will,” Douglas said.

Douglas warned that there’s no real precedent for what North Carolina might do – and therefore no certainty about how a federal court would respond.

But, said Hasen: “A brazen power grab without a plausible basis for overturning the results of a democratically conducted election? I expect the federal courts would take a very close look at such a thing.”