The North Carolina Republican Party called out Democrat Gov. Roy Cooper on Sunday for his announced plan to illegally appoint members of the newly formed State Board of Elections.
The North Carolina State Board of Elections and Ethics Enforcement (NCSBE), the state agency that refused to certify the election of Republican Mark Harris as the winner of the 9th Congressional District race, was dissolved at noon on Friday, December 28, 2018. The NCSBE was governed by a nine member board, all appointed by the governor. Four were Democrats, four were Republicans, and one was ostensibly “unaffiliated,” but aligned with Democrats.
Harris won the November 6 election over Democrat Dan McCready by 905 votes, according to results certified by the election boards in all eight counties that comprise the district. But on November 28 the NCSBE, the only state agency with authority to certify the election results that authorize the new session of the House of Representatives to seat members from North Carolina when it convenes in Washington, DC, this Thursday, refused to certify Harris as the winner, citing “election irregularities.”
The NCSBE orginally scheduled an evidentiary hearing on the investigation for December 21, one week before the agency was scheduled to be dissolved, but, inexplicably, in early December rescheduled that hearing for January 11, two weeks after it was scheduled to go out of business.
A three judge panel rebuked the NCSBE on Thursday, December 27, for its failure to conclude its investigation into allegations of election irregularities in that race in a timely manner, and refused to extend the life of the NCSBE beyond its statutory demise, which had previously been extended to December 28.
As a consequence, all matters related to election oversight are now governed by a new five member State Board of Elections, under HB 1029, a law enacted on December 27 when the North Carolina State Legislature overrode a gubernatorial veto.
The court order requiring the previous board to dissolve came despite a request from the then-NCSBE Chairman to the panel to allow the current board to remain in existence as it investigates allegations of election fraud in the 9th Congressional District that kept the board from certifying the results of that race.
A hearing in the matter had been scheduled by the board for January 11, 2019. Originally, the hearing was supposed to take place by December 21, 2018.
On Friday, Cooper announced his intention to appoint a temporary Board of Elections for the month of January until a new permanent board could be appointed under new legislation that officially became law Thursday morning.
Cooper’s office has said he would appoint Republicans to the temporary board from the four who sat on the NCSBE that was dissolved by the court.
Attorney John Lewis, one of the four Republican members of the now dissolved nine member NCSBE who also serves as counsel to the North Carolina Republican Party, wrote a letter to Gov. Cooper on Sunday outlining the legal reason why his planned appointment of interim board members prior to securing the nomination of Republican candidates from the chairman of the North Carolina State Republican Party is illegal.
“The North Carolina Republican Party will not be ‘bullied’ into nominating several of its members to an ‘interim’ State Board of Elections which is not authorized by law. With the passage of HB 1029, all authority to supervise elections and investigate ‘irregularities’ were placed under the auspices of the new State Board of Elections,” Lewis wrote in a letter dated Sunday to William McKinney, in the Office of General Counsel for Gov. Cooper.
According to the new state law, HB 1029, the new State Board of Elections is not scheduled to begin operations until January 31, 2019.
The law, Lewis pointed out, is quite specific. The governor can only appoint members to the new five member board based upon nominations submitted by the state chairmen of the Republican Party and Democrat Party, respectively. Three of the members can come from one party, while the other two must come from the other party.
As a Democrat, Cooper is expected to approve three nominations submitted by the chairman of the North Carolina Democratic Party.
The new State Board of Elections will not have legal authority until all five members are selected, but until Robin Hayes, the state chairman of the North Carolina Republican Party submits his nominees to the governor, the governor may not nominate any Republican members to the new board.
“Based upon the language and tone of your letter, it would appear that the Governor intends to appoint members to an ‘interim’ State Board of Elections, including members from the Republican Party, even if Chairman Hayes does not nominate a list of names for consideration by the Governor for appointment,” Lewis wrote.
The law, Lewis continued, “does not grant the Governor the authority to appoint Republican board members to an ‘interim’ board without a list of names being submitted by Chairman Hayes.”
“Given the uncertainty and substantial litigation surrounding the composition of the previous board, further litigation would serve no legitimate public purpose; however, please be assured of the fact that any attempt by the Governor to usurp the authority granted to Chairman Hayes as Chairman of the North Carolina Republican Party will result in litigation to protect his statutory rights,” Lewis concluded.
As the Democrats and Republicans continue to battle over the membership of the new North Carolina State Board of Elections, the people of the 9th Congressional District will not have a representative sworn in to office to represent them in the U.S. House of Representatives when the 116th Congress convenes on Thursday.
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