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Thursday, January 03, 2019


North Carolina: State of Confusion

by Tom Sullivan

Moral Monday Protesters, Raleigh, NC. Movement is over five years old. Photo by twbuckner via Flickr/Creative Commons.

Rep. Nancy Pelosi takes up her gavel as House Speaker once again at noon (presumably). On her plate, a pair of bills to ending the government shutdown and end the partial government shutdown without funding the border wall the president wants. Somewhere down the list: what to do about North Carolina's unresolved 9th Congressional District race.

The results of a race in which Republican Mark Harris led Democrat Dan McCready by 905 votes after vote-counting remains uncertified by the State Board of Elections. As of now, and by court order, there is no board to certify them until a new one assembles on January 31. Central are allegations that election fraud engineered by a Harris employee accused (not yet formally) of illegally "harvesting" absentee ballots from voters, destroying some, completing others, and selectively returning those supporting Harris to county elections officials.

With the State Board charged with investigating that dissolved (in another court dispute), the outcome remains in "no man's land," says WSOC-TV reporter Joe Bruno. The evidentiary hearing originally scheduled for January 11 is cancelled. Incoming U.S. House majority leader, Steny Hoyer, said over the weekend the House would not seat Harris when it opens Thursday.

After investigating the fraud allegations, a reconstituted state elections board might call for a new election and primary. Outgoing Republican 9th District Congressman Robert Pittenger, defeated by Harris in the GOP primary last year, announced he would not compete again. In the meantime, state staff gathers evidence.

The Washington Post reports Harris plans to sue to have a court declare him the victor.

But with the House, not the state, the final arbiter of its own elections, now what?

Michael Stern writes at Point of Order, a blog on congressional legal issues, that the House must first formally declare the seat vacant. But for now, it has examined no evidence the election was so tainted that it is impossible to determine which candidate won and a new election is necessary:

So what then should the House do? It could choose to seat Harris without prejudice to its ultimate determination of the election outcome. Normally this is what the House does when one candidate is certified as the winner but there appears to be a serious challenge to the certified election results. Even then, the House sometimes declines to seat anyone. I am not aware of any precedent for what the House should do when the state authorities have not certified anyone as the winner, but it seems logical that no one would be seated in that situation. On the other hand, that intensifies the need for a speedy resolution of the matter.

The House could also choose to wait upon the outcome of the state election investigation. There are both pragmatic and constitutional considerations against such an approach, however. The former include the fact that it would significantly extend the period in which the people of the district would be unrepresented, particularly because the process in North Carolina appears to be bogged down with its own problems. The latter include the question whether it is proper for state election authorities or courts to make the types of difficult factual and legal decisions inherent in a fraud case (as opposed to the administrative nature of a recount). See Kristen R. Lisk, The Resolution of Contested Elections in the U.S. House of Representatives: Why State Courts Should Not Help with the House Work, 83 N.Y.U. L. Rev. 1213, 1217-18 (2008) (arguing for “exclusive congressional jurisdiction over all election contests seeking more than administrative recounts, because these contests involve substantive claims that require decision makers to engage directly with election results and make difficult policy decisions.”).

There is a separate and even more serious question whether state officials have the authority to order a new election on the grounds that the original election was tainted by fraud. A new election is fundamentally different than recounts or other post-election remedies. Under federal law, North Carolina was required to conduct its congressional elections for the 116th Congress on the first Monday in November 2018. See 2 U.S.C. 7. If a vacancy then happens in North Carolina’s representation, the governor must then issue a writ of election to fill the vacancy, but I am not aware of any authority for the proposition that the governor or other state officials can declare a vacancy because they believe the initial election to be defective in some way.
Could things be worse for North Carolina Republicans? You knew they could.

Within weeks, the U.S. Supreme Court could rule in the matter of League of Women Voters of North Carolina v. Rucho and Rucho v. Common Cause. At issue is whether to let stand an August ruling by a three-judge district court panel that found North Carolina’s 2016 congressional redistricting plan a product of "invidious partisanship" and an unconstitutional political gerrymander. It was the second ruling against the NCGOP-drawn 2011 maps. The Supreme Court has been reluctant to address whether partisan gerrymandering is unconstitutional and must decide whether to hear arguments in its current session. Justices met behind closed doors to review the case in early December. Whatever action the high court takes, North Carolina Republicans have succeeded in imposing districts twice ruled unconstitutional for almost an entire ten-year redistricting cycle. Leaving the district court ruling in place would mean new court-ordered districts in 2020.

The constitutionality of North Carolina's state legislative districts remains in dispute as well:
RALEIGH, N.C. (AP) — Litigation challenging North Carolina legislative districts on arguments they excessively favor Republicans to the point of violating the state constitution will remain in state court.

A federal judge Wednesday ordered the case stay in Wake County Superior Court, where Democrats and election reform advocates filed their partisan gerrymandering lawsuit in November. U.S. District Judge Louise Flanagan wrote she’d explain her reasoning later.

Last month, Republican lawmakers sought to move the lawsuit to federal court because they said the way plaintiffs wanted House and Senate maps redrawn conflict with federal laws. The plaintiffs said no such conflict exists and seek a state trial in April.
“Legislative Defendants’ notice of removal is an egregious and transparent attempt to delay and derail state court proceedings in this case of extraordinary public importance,” the plaintiffs' motion states. “There is no plausible, good-faith basis for federal subject matter jurisdiction here, and the attempted removal is procedurally defective on its face.” Flanagan appears to have agreed.

Civil rights attorney Anita Earls takes office as the newest state Supreme Court associate justice on Thursday. Earls, a Democrat, won a seat on the court in November, giving the court a 5-2 progressive lean. Hence, Republicans' attempt to move the question out of the state's hands.

Election law in North Carolina is nothing if not action-packed.