- There are two ongoing investigations into alleged ballot harvesting in the 9th Congressional District race.
- The Wake County District Attorney’s office is investigating possible criminal wrongdoing while the State Board of Elections must determine if the results of last November’s election should be certified.
- The Board of Elections could overturn the election results without proof of wrongdoing by the Harris Campaign.
Wake County Superior Court Judge Paul Ridgeway denied Mark Harris’s petition to force the NC State Board of Elections (SBE) to certify a winner of the 9th Congressional District on January 22. Had Harris’ request been granted, the court would have ordered staff at the SBE to certify the race and Harris would have been declared the winner due to his 905-vote margin of victory on election night. The decision did not touch on the merits of claims by the Dan McCready campaign that the Harris win was due to ballot harvesting activities by McCrae Dowless, who was hired by the Harris campaign to conduct get-out-the-vote work in Bladen County.
This means that the reconstituted SBE is free to continue their ongoing investigation at their own pace.
To clarify for those following this story, there are two separate investigations.
The Criminal Investigation
What many people do not realize, or do not wish to acknowledge, is that there are two issues involved here. The first is the criminal act of ballot fraud. The Wake County district attorney’s office is investigating alleged ballot fraud in Bladen County in 2016 and 2018. If they find that Dowless or members of Bladen County Improvement Association (BCIA) conducted ballot harvesting, they will be prosecuted. Ballot harvesting is a Class I felony in North Carolina, subject to prison terms of up to 12 months. If Harris was aware of any ballot harvesting by Dowless, he would be subject to prosecution as well.
Wake County District Attorney Lorrin Freeman stated that she expects to have that investigation wrapped up sometime between mid-February and mid-March. The Wake County district attorney’s office was given jurisdiction over the case.
The Electoral Investigation
The SBE’s investigation, however, seeks to answer a different question: did illegal activities affect the outcome of the election? State law (GS 163A-1181) allows the SBE to order a new election under four circumstances:
(1) Ineligible voters sufficient in number to change the outcome of the election were allowed to vote in the election, and it is not possible from examination of the official ballots to determine how those ineligible voters voted and to correct the totals.
(2) Eligible voters sufficient in number to change the outcome of the election were improperly prevented from voting.
(3) Other irregularities affected a sufficient number of votes to change the outcome of the election.
(4) Irregularities or improprieties occurred to such an extent that they taint the results of the entire election and cast doubt on its fairness.
The first three conditions clearly require proof that some combination of voting irregularities could have altered the results of the election in Harris’ favor by at least his 905-vote margin of victory. The reasoning for those requirements is clear: you do not toss out the votes of the 282,717 people who voted in that election without strong evidence that the outcome of their collective votes was altered. While it is possible that the SBE has such evidence, its actions to date (including its failure to justify delays in its investigation to Wake County Superior Court judges), indicate that, so far, it does not.
How to Usurp Voters
While the fourth condition does not require a specific number of irregularities, it does require that the irregularities be “to such an extent” that the entire election is tainted. That implies a large, if ill-defined, number of irregularities but does not require directionality in the sense that all the irregularities had to be in favor of Harris.
In addition to the apparent ballot harvesting in Bladen County by Dowless and the BCIA, it appears that at least one staff member of the Democratic Congressional Campaign Committee was involved in absentee ballot requesting in neighboring Robeson County. A DCCC staffer dropped off 603 voter registration or absentee ballot request forms with the Robeson County Board of Elections four weeks before the election and may have dropped off more at other times. Those three efforts combined may have affected thousands of absentee ballots or absentee ballot requests, something that could conceivably be construed to have tainted the results of the entire election. That two of the entities affecting absentee balloting in Bladen and Robeson counties were working to help elect Democrat Dan McCready would not matter since the condition requires demonstrating that the election was “tainted” rather than demonstrating that the result was altered.
So, the SBE could conceivably toss out the results of the 9th District race without proof of wrongdoing by Harris or evidence that the outcome was altered. The question is whether the majority of the newly installed State Board of Elections could muster the political will to engage in that kind of usurpation of the voters in the 9th district.
