North Carolina Congressional Race Investigation Drags On

More than two months after polls closed in the November 6 election between Republican Mark Harris and Democrat Dan McCready to select the representative of the people in North Carolina’s 9th Congressional District, officials in North Carolina are no closer to certifying a winner.

The district has not been represented in the U.S. House of Representatives since January 3 of this year, when the 116th Congress convened in Washington, D.C.

The Constitution provides that the U.S. House of Representatives has the final authority in determining who should be seated to represent a congressional district in that legislative body.

By long tradition, the House of Representatives defers to each state’s authority to certify the winner of a federal election in that state. In case of contested elections where state certification is controversial, or in the highly unusual case where the relevant state authority fails to certify the winner of a federal election, the House has stepped in, as is its constitutional right, to adjudicate the winner of an uncertified federal election, or a contested and certified election.

In the case of North Carolina’s 9th Congressional District, the North Carolina State Board of Elections and Ethics Enforcement (NCBE) refused to certify the election of Harris–who was deemed by election boards in the eight counties that comprise the district to have won the election by 905 votes– on November 28, and subsequently failed to complete an investigation and make a certification of an election winner prior to its expiration as a legal entity on December 28.

The stated reason given by the NCBE for its refusal to certify Harris as the winner was allegations of absentee ballot irregularities in Bladen County, North Carolina by Leslie Dowless, who had been recruited by the consulting firm managing Harris’s campaign to handle get-out-the-vote efforts. Dowless has a long history of get-out-the-vote activities in North Carolina, and in particular in Bladen County, much of which was on behalf of Democratic campaigns.

A law enacted after the North Carolina General Assembly overrode a veto by Democrat Gov. Roy Cooper establishes a new state board, known simply as the North Carolina Board of Elections, with the authority to certify elections in the state, but that body will not be legally authorized until January 31. The new board  may not be properly constituted and able to conduct business until after that date, as the law requires the chairman of the state’s Republican Party and the chairman of the North Carolina Democratic Party to nominate board members, from which the governor must pick five members–at least two of whom must come from each party.

Meanwhile, the Democratically controlled U.S. House of Representatives is becoming impatient and is threatening to assert its constitutional authority and adjudicate the winner of the race. With Democrats in the majority, there is little doubt that the outcome of that adjudication would be to seat the Democrat candidate, Dan McCready, who conceded the race and then unconceded after the now out-of-business NCBE refused to certify the election.

On January 11, Rep. Zoe Logren (D-CA), chairman of the House Administration Committee, sent a letter to the staff of the new North Carolina Board of Elections (a carryover of staff from the old NCBE, but without legal authority to act until January 31, at the earliest, which said, in part:

Article I, Section 5, clause 1 of the United States Constitution empowers the United States House of Representatives to “be the Judge of the Elections, Returns, and Qualifications of its own Members.” Generally, House precedent lends a great deal of deference to state certification with a presumption of regularity. However, a certificate is not ultimately determinative of the House’s course of action as the House is the final arbiter of who is the rightful claimant to its seats. . .

[T]his Committee now writes the Board regarding the election in North Carolina’s Ninth Congressional District, which remains unresolved as of this writing. It is the
Committee’s understanding that the State Board of Elections has been conducting a thorough investigation of this matter since its inception. . .

This Committee, on behalf of the House, therefore requests that you preserve, in original form, all documents and records received pursuant to subpoenas issued by the State Board of Election and any other records or documents transmitted to your office by law enforcement, other prosecutorial entities or any interested parties regarding this investigation and the resolution of this matter.

“Failing to preserve the materials herein described,” Lofgren wrote in conclusion, “would undermine the United States Constitution, the authority of this House and this Committee, and would deprive the people of the North Carolina’s Ninth District their Constitutionally-protected representation in Congress, which all citizens expect and deserve.”

Under the law that established the new North Carolina Board of Elections, that body, once it is formally constituted, can choose to certify the winner of the November 6 election after an investigation, or may order a new primary election and general election to determine, finally, who will represent North Carolina’s 9th Congressional District in the U.S. House of Representatives during the 116th session of Congress.

Should the North Carolina Board of Elections not decide on one of these courses of actions, the U.S. House of Representatives would be poised to jump in and select the winner.