Regardless of What the SBOE Does; Congress May Decide 9th District Seat
By CASH MICHAELS
Even though a new five-member State Board of Elections (SBOE) – appointed by Gov. Cooper – takes over in two weeks on January 31st, and, based on the alleged illegality in the 2018 midterm Ninth Congressional District race between Republican Mark Harris and Democrat Dan McCready, is likely to order a new general election race (assuming that four of the five members indeed vote for one), it is pretty certain that the US House of Representatives can, and very well will, have the final say as to who ultimately represents the Ninth in Congress.
In a letter dated January 11, 2019 from Chairperson Zoe Lofgren of the Congressional Committee on House Administration to Kim Strach, SBOE executive director, Strach is told the U.S. Constitution empowers the U.S. House, “…to be the Judge of the Elections, Returns and Qualifications of its own Members.”
The letter went further to state that constitutionally, the Committee on House Administration has “jurisdiction” over what ultimately happens in the Ninth District race after the state has finished its inquiry, and in fact, may decide to conduct its own inquiry.
“… [T]he House may become involved in the determination of the rightful claimant to [the Ninth District seat]….,” and may review all of the evidence collected by SBOE investigators.
This is key not only because the five-member SBOE may not be able to come to a decision about ordering a new election (with state statute mandating a four -member vote to do so, one of those would have to come from one of the two Republican on the SBOE, and that’s unlikely to happen, say observers), but also because Republican Harris is asking a Superior Court judge to certify his race, despite the investigations, so that he may be seated.
Harris told the conservative Carolina Journal last week that “…he expects a state court will certify him the winner of the disputed 9th U.S. Congressional District election. He will go to Washington despite what he considers political interference by a Democratic-controlled state elections board to scuttle his victory.”
The state Republican Party wants certification of Harris as the winner as well, saying that any alleged absentee ballot fraud found in Bladen and Robeson counties – two of the districts that make up the Ninth, ultimately did not affect Harris’ 905 vote victory.
But according to state law, it didn’t have to.
Under NC General Statute 163-182.13, one of the qualifying reasons for the SBOE to order a new election is the fourth listed – “irregularities or improprieties occurred to such an extent that they taint the results of the entire election and cast on their fairness.”
“There is no doubt, but that the election of Mark Harris was tainted by illegal activities committed by those who directed his campaign,” says Irving Joyner, attorney for the Bladen County Improvement Association. “Illegal activities had an impact on the outcome of the congressional race and other races in Bladen, Robeson and Columbus Counties.”
If the SBOE’s three Democrats believe, based on the evidence, that there was enough illegal mishandling of absentee ballots to call the entire Ninth election into question, they’ll most likely push for a new election. The two Republican SBOE members, however, may not agree, and stop any move towards a new election by simply voting “no,” thus setting up a judge to then certify Harris’ victory since the SBOE won’t do it, observers say.
Rep. Butterfield cautions, however, that “If the process breaks down, then the House always has the prerogative of deciding who is seated in [the Ninth Congressional District seat,” he says. “So the House has the final say.”
“You would think that Harris, an ordained minister, would not want to be seated in this seat with this cloud of illegality hanging over his head,” says atty. Joyner. “This effort will not go unchallenged either with the State Board of Election, whenever it is seated or on Capitol Hill when he seeks to be sworn in.”
