Taking Stock of the 9th District Dispute

• Democrats and Republicans focus on different parts of state law regarding the conditions under which the State Board of Elections may refuse to certify an election.
• Despite the many legal and political maneuvers, a final resolution is still months away.
• The evidence presented to this point does not warrant overturning the results of the 9th District election.

With a relative lull in the 9th Congressional district drama, this is a good time to take stock of where things stand.

 

You Say You Want a New Election

The basic question in the District 9 controversy is whether Mark Harris, who outpolled Dan McCready by 905 votes, should be seated or a new election called. There are two institutions that could have the legal authority to make that determination: The North Carolina State Board of Elections (NCSBE) and the U.S. House of Representatives. If either does not recognize Harris’ win, there will have to be a redo of the election.

North Carolina law specifies the conditions that allow for the unofficial results of a race to be overturned (GS 163A-1181):

(a) When State Board May Order New Election–The State Board may order a new election, upon agreement of at least five of its members, in the case of any one or more of the following:

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 require evidence that enough votes to change the outcome of the election were affected by irregularities. So far, there has not been evidence that meets any of those standards. So, naturally, Republicans have tended to focus on numbers, arguing that it would be a disservice to voters across the district to disregard their votes based on a relatively small number of irregularities.

Article 1, Section 5 of the Constitution provides that “(E)ach House shall be the Judge of the Elections, Returns and Qualifications of its own Member.” That discretion includes judging whether a potential member was properly elected. Refusing to admit a claimant to a seat in Congress was relatively common during the Reconstruction era after the Civil War but is rare now. Harris was not seated when Congress convened on January 3. Current Democrat House Majority Leader Steny Hoyer has called for a new election in the district and Zoe Lofgren (D-CA) chair of the House Administration Committee has asked the NCSBE for documents related to the race, indicating a possible investigation. However, if Harris’ victory is officially certified, it would likely become politically and legally untenable for Democrats in the House to deny Harris the seat.

 

Claims of a Tainted Election

While Republicans have been focusing on numbers, Democrats have tended to focus on the fourth condition for the NCSBE calling a new election: “Irregularities or improprieties occurred to such an extent that they taint the results of the entire election and cast doubt on its fairness.” Without evidence of enough affected voters to change the outcome of the election, it is currently their only hope of preventing the NCSBE from certifying Harris’ election. To implement that strategy, Democrats need to successfully assert that the alleged absentee ballot harvesting of McCrae Dowless, whom Harris hired to conduct get-out-the-vote work in Bladen County, so tainted the election that there is no way of knowing who would have won if the election had been conducted properly.

The Democratic strategy was laid bare in a December 21 filing with the NCSBE from McCready’s lawyers (emphasis added):

The Order provides that our client, as an impacted candidate, will have the opportunity to present evidence and to call and cross-examine witnesses with first-hand knowledge regarding the absentee ballot fraud that has tainted the results of this election and called into question its basis [sic] fairness.

The filing requested the board to subpoena 48 people to attend a hearing that the NSBE had scheduled for January 11. The list included Harris, NCGOP Executive Director Dallas Woodhouse and NCGOP Chair Robin Hayes.

The size of the request, especially the inclusion of Harris, Woodhouse, and Hayes, indicates that it was at least in part a fishing expedition by McCready’s team. Harris had already committed to working with NCSBE investigators before the request (and soon after fulfilled that commitment by sitting down to an interview with board staff on January 3). Such an extensive list of witnesses would have also been unmanageable in a hearing that was scheduled to last less than a day.

However, the imagery of having Harris and senior Republican leaders in the same board meeting as Dowless and testifying about alleged absent ballot fraud would have been strong. That fits the Democrat’s strategy of claiming that the entire election was irredeemably tainted by the alleged absentee ballot fraud in Bladen County and helping build the political will for Democrats in the NCSBE or Congress to call for a new election.

 

Board of Elections? What Board of Elections?

Alas, there will be no NCSBE meeting on January 11. That is because there is no board to hold a meeting. The board dissolved on December 28 under orders from a three-judge panel of the Wake County Superior Court. The order stemmed from an October 16 ruling by the court that the then-current makeup of the board, made by the General Assembly soon after Roy Cooper was elected governor, improperly stripped appointment power from the executive branch. The court granted a stay on the order until after the NCSBE completed its work on the 2018 election. The board requested a further extension to complete work on the 9^th District race, but the court refused, saying:

The Parties have not given even a cursory explanation as to why the hearing was continued from December 28, 2018 until January 11, 2019, let alone one demonstrating compelling reasons and substantial and reasonable justification, for not only the additional time needed, but the total disregard of the previous Order of the Court in extending the Stay…

If the state elections board really needed more time to conduct its investigation, it should have been able to present the reasons for extending the stay to the court. Its failure to do so suggests that the NCSBE lacks confidence that there is enough evidence to justify continuing to keep the 9th District seat unfilled.

The General Assembly had previously voted to return the NCSBE to its pre-2016 organization, but the new board will not be constituted until January 31. The new board is expected to take up where the old board left off and NCSBE staffers are continuing their investigation in the meantime, including ongoing requests for more documents from the Harris campaign.

 

Harris Tries to Force the Issue

With the NCSBE board dissolved, the Harris campaign sought to put the matter to an end by requesting the Wake County Superior Court to issue a writ of mandamus to Kim Westbrook Strach, the NCSBE’s Executive Director. Petitions of writs of mandamus have five elements that must be fulfilled before a court will order them:

1. The party seeking relief must demonstrate a clear legal right to the act requested;
2. The defendant must have a legal duty to perform the act requested, and the duty must be clear and not reasonably debatable;
3. Performance of the duty-bound act must be ministerial in nature and not involve the exercise of discretion;
4. The defendant must have neglected or refused to perform the act requested, and the time for performance must have expired; and
5. There must be no alternative, legally adequate remedy available (the court may only issue a writ of mandamus in the absence of such a remedy).

Harris checks most of the boxes on those requirements: no one disputed that Harris was the winner based on the votes that were counted and McCready never asked for a recount; the NCSBE is tasked with certifying elections; the NCSBE failed to certify the election by the start of Congress’ session on January 3; and there is no other legal means to certify the election.

The third requirement is the key sticking point. The Harris campaign is basically arguing that the old NCSBE board did not have the discretion under North Carolina law to refuse to certify the 9th District race since there were no official protests or requests for recounts at the time of their November 27 meeting:

Because North Carolina law mandates that the State Board authenticate and certify the 9th District election under the circumstances presented the unique facts of this case Mandamus is the appropriate form of relief. The State Board is under an affirmative duty to supervise the elections of the State. See N.C. Gen Stat. § 163-22 (formerly § 163A-741). Respondent [he NCSBE] here is under legal obligation to perform the act off authenticating and certifying the elections, as it is required to do so under N.C. Gen. Stat. §§ 163-182.5 and 182.15 (formerly §§ 163A-1172, 163A-1184). With no protest pending and no court order in effect, Respondent had no discretion or authority to refuse to authenticate or certify the election results from the 9th District.

Additionally, Harris’ lawyers claim that the NCSBE lost whatever discretionary authority it had when the board was dissolved on December 27. The court has ordered both sides to submit briefs by January 14 and a hearing will likely follow soon after. The NCSBE will likely argue that the board has broad discretionary authority and acted on that authority when it decided not to certify the election. Writs of mandamus are extraordinary court orders reserved for extreme circumstances, meaning that the Harris campaign has a high legal hurdle to jump to have the writ granted.

(1-15-2019 UPDATE: Here are links to filings from Harris,  McCready and the NCSBE on Harris’ writ of Mandamus petition.)

 

Prepare for a slog

Harris’ petition is likely the only way the 9th District dispute will be settled quickly. If the writ is granted, the NCSBE will have to certify Harris’ election within a short period of time.

Should the court not grant the writ, we will have to wait on the NCSBE to resolve the issue. While the reorganization of the NCSBE is slated to take place on January 31, given the pace that the NCSBE has proceeded so far, we could have a long wait before the 9th district seat is filled.

An election is not just a contest between two individuals; it is a collective expression of the will of the people who voted in a district. That seems to have been lost in the drama between the candidates, the state political parties and the NCSBE. It should take more than a suspicion, even a strongly held one, of improprieties to overturn the apparent will of the people in an election. It should take something close to incontrovertible proof. The alleged misconduct by individuals in Bladen county may be the basis for their criminal prosecution. However, based on the evidence that has been made public so far, it did not reach the level to affect the outcome of the election or cast doubt on its fairness. Barring the emergence of evidence that rises to that level, Harris must be seated to honor the will of voters.