North Carolina has held special elections to fill vacant congressional seats when, say, a member has resigned. But, if the State Board of Elections and Ethics Enforcement calls for a new election for the 9th Congressional District, it will apparently be the first time in N.C. history that alleged fraud has caused voters to go to the polls a second time to decide the same congressional race.
Fraud has caused some rematches in local elections in the state, said Gerry Cohen, who drafted election laws during his 37 years — 1977 to 2014 — as special counsel for the N.C. General Assembly. But, he said, this would “absolutely be the first time for a congressional election.”
“This is a new chapter in North Carolina politics,” agreed Michael Bitzer, a political scientist from Catawba College.
The nine-member state board has twice declined to certify the results of last month’s election to fill the seat of U.S. Rep. Robert Pittenger, R-N.C. He was defeated in the GOP primary by Mark Harris, who went on to beat Democrat Dan McCready by 905 votes.
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McCready conceded the day after the Nov. 6 election.
But the elections board recently voted 7-2 to hold an evidentiary hearing this month due to “claims of numerous irregularities and concerted fraudulent activities related to absentee mail ballots,” according to Joshua Malcolm, who was bumped from the board’s vice chair to its chairman by Gov. Roy Cooper, a Democrat, on Monday.
N.C. Republicans have called on the board to declare Harris the winner.
But on Tuesday, U.S. Rep. Steny Hoyer, D-Md., who will be the House Majority leader in the next Congress, told reporters in Washington that Democrats may refuse to seat Harris unless and until “substantial” questions about the integrity of the election are resolved, according to a report by the Washington Post.
“The House has, as you know, the authority over the propriety of the election,” the Post reported Hoyer saying. “This is a very substantial question; it ought to be resolved before we seat any member . . . I would hope that the North Carolina officials get to the bottom of this controversy.”
In North Carolina, Dallas Woodhouse, the state GOP exceutive director, claimed that the number of votes at issue total fewer than Harris’ margin of victory.
“There has to be enough votes in question to possibly change the outcome,” said Woodhouse told the Observer.
But, according to state law, the elections board can call a new election if it determines “that the irregularities or improprieties occurred to such an extent that they taint the result of the entire election and cast doubt on its fairness.”
It’s one of four bases on which the board can call a new election, and the only one that does not depend strictly on numbers of votes.
It’s within the board’s “discretionary authority” to cite this reason for a new election, said Bitzer.
Woodhouse said he doesn’t accept that broad interpretation of the law, saying it’s “a standard that’s never been used.” He also claimed that there’s been no proof of fraud to date — only possible “mishandling of ballots.”
The state’s three congressional Democrats, meanwhile, have called on the state board to not certify the election until it could “guarantee that the outcome of this election reflects the will of the voters and (ensures) accountability for any misconduct.”
The statement signed by Alma Adams, David Price and G.K. Butterfield also endorsed the calling of a new election if “investigations produce clear evidence of voter fraud.”
Cooper also effectively raised the possibility of a new election by promoting Robeson County’s Malcolm to lead the board. It was his charge that “unfortunate activities” had occurred in a part of the 9th district that includes Bladen and Robeson counties that caused the board to initially vote 9-0 not to certify the results.
Woodhouse blasted Malcolm’s appointment as chair, calling it “a horrendous pick. … to appoint the guy who started it all to now run it.”
Because this was an election for federal office, the U.S. House of Representatives could also investigate the 9th district vote and even call for a special election, said Cohen and others.
The U.S. Constitution says that each house of Congress decides who to seat in its chamber
According to the Post report, Hoyer said he planned to meet with Rep. Zoe Lofgren, D-Calif., the incoming chair of the chamber’s Committee on House Administration. That’s the panel that would have the power to independently investigate the election and call for a new one.
The jurisdiction of the U.S. House in such matters could also potentially short-circuit any decision by the state GOP or other groups to challenge in court what the state elections board does, said Bitzer. “Certainly anybody can file any lawsuit at any time,” he said. “But the Constitution is fairly clear: The Article I branch (Congress) … is the judge and jury of its chambers. The Article III branch (courts) are going to be loath to tell Congress what to do (about) its members.”
If Congress called a special election in the 9th district, it would be different from a new election called by the state elections board, said Cohen.
If the state board calls for a new election, “it would be a re-do,” said Cohen.
The same three candidates on the ballot in November —Harris, McCready and Libertarian candidate Jeff Scott — would be on the ballot again.
The board would then set the date for the re-match, which Cohen predicted may not be held until March.
But if the U.S. House called a special election, everything would start from scratch — anybody could run, even Pittenger, and either the U.S. House or Cooper would set the dates for filing, primaries and the general election.
Could the U.S. House get that involved?
Bitzer suggested that the incoming House leadership, all Democrats, would find a way to work with and defer to plans by fellow Democrat Cooper and the state elections board. The current membership of the board: four Democrats, four Republicans and an unaffiliated member that Republican Woodhouse predicts will vote with the Democrats to form a majority.
If the 9th district House seat is still vacant at noon Jan. 3, when the new Congress convenes, the chamber’s House Committee on Administration could keep Pittenger’s staff on the payroll for awhile to work with constituents’ issues.
Woodhouse of the state GOP warned that courts would get involved.
“There will be interminable, long-lasting lawsuits that will keep the seat empty,” said Woodhouse. “Then you’ll have 750,000 people without representation in Congress for a year or more based on rumors and innuendo (alleging fraud).”
Tim Funk: 704-358-5703; @timfunk