A multiday hearing underway this week into alleged election fraud in the last unresolved race of the midterms could set into motion the first congressional election redo in more than 40 years—or it could send the dispute further into unchartered territory, entangling the courts or even Congress.
Either way, the constituents of North Carolina's 9th District are months away from having representation in the House.
The five-member state elections board heard evidence over the past two days of what investigators described as an absentee-ballot scheme orchestrated by an operative working for Republican Mark Harris. The panel, comprised of three Democrats and two Republicans, is expected to vote on whether to certify Harris's 905-vote victory over Democrat Dan McCready or mandate a new election. In question is whether enough ballots were affected to change the result.
Yet members of both parties who are closely following the scandal said they expect the state will eventually have to host another race no matter what the board decides.
"I have yet to talk to a single person who I would say is in the know who does not think this thing is heading to a new election," said a Republican operative in the state.
Complicating the proceedings is the fact that a clear resolution likely requires at least one member of the board to break party lines—three votes are needed for certification and four for a new election. As a result, stakeholders are bracing for the possibility of a deadlock, where the panel lacks the votes to do either, consigning the case to the political unknown.
In briefs filed this month with the state board of elections, McCready asked the board to vote to refer the dispute to the House in the case of a deadlock. Harris’s attorneys said he should be declared the winner, citing a state law that requires certification within 10 days unless a new election is called or a stay has been granted by a state superior court.
Either candidate can appeal the decision of the board under state law.
Lay of the Land
The 9th District, which spans from the Charlotte suburbs east toward Fayetteville, has typically favored Republicans, and voters there backed both President Trump and Mitt Romney by 12 points in the past two presidential elections. But McCready, a Marine veteran running as a pragmatic moderate, showed surprising dominance among independent voters in the district and made the race one of the closest in the country in 2018.
McCready has been gearing up for a new election, hauling in $500,000 at the end of last year and reassembling his campaign team. Harris has not demonstrated the same fundraising prowess. He began 2019 with just $19,000 in the bank and at least $60,000 in debt.
Some Republicans are privately concerned about Harris's viability in a special election, particularly if the evidence revealed in the hearing proves especially damning.
State legislators changed election law last year to require a new primary in a potential special election, giving Republicans the means to dispatch Harris if needed. There are several Republicans eyeing the special, should it occur, according to GOP sources in the state. Among those who could run: Dan Barry, head of the Union County GOP; Kenny Smith, a former Charlotte mayoral candidate; and Matthew Ridenhour, a Marine veteran who narrowly lost his seat on the Mecklenburg County Commission last year.
“I would think he would have a couple challengers in the primary,” Republican Rep. David Rouzer of North Carolina said of Harris. "Probably wouldn’t have his name ID, because so much money has been spent so far, but I do think it would be a little bit more of a challenge and it depends upon what the investigation shows. Congressional seats don’t come around often."
The National Republican Congressional Committee typically does not play in GOP primaries, and national Republicans said the committee is unlikely to get involved if a new primary is held in the district, even if Harris runs again.
How it Could Play Out
The quickest path to a special would arise if four members of the board ordered a second election this week. That could set the race on track for a spring primary—which could be followed by a primary runoff if no candidate reaches 30 percent—and a general election in the fall. The governor could choose to set the special election to coincide with municipal elections in November.
If the board chooses to certify Harris's victory—an outcome that few believe is likely—the dispute could go on and would be firmly within in the jurisdiction of the House, the ultimate arbiter of the qualifications of its members. McCready could object to the House seating Harris under the Federal Contested Elections Act, possibly triggering an investigation by the House Administration Committee. Any House member could also object to Harris's certification and propose a resolution to refer the matter to the same committee.
The third option is the murkiest, and it’s the least desirable for a House majority party mindful of the process appearing like overreach. There is no clear way forward should the board deadlock, which would mean it couldn’t certify the 2018 result or call for a new election.
The House has the power to deem a vacancy, which would allow the governor to call for a special election, but it typically does so in the context of assessing the validity of certifications—not political stalemates of a state elections body. Democratic Gov. Roy Cooper doesn’t intend to declare the seat vacant himself in the case of a deadlock, according to his office.
"It’s what us lawyers call a case of first impression," said Rep. G.K. Butterfield of North Carolina, a former judge, referring to the lack of precedent for this scenario. “Because there would be no certification if there was a deadlock.”
In interviews, Democrats in the state's delegation and on the Administration committee said they are eager for North Carolina to come up with its own resolution. Rep. Marcia Fudge of Ohio, who chairs an Administration subcommittee with jurisdiction over the matter, said the House won't intervene unless the state exhausts "all their administrative remedies."
"There’s lots of questions about how this goes if the Board of Elections were to deadlock," said Democratic Rep. David Price of North Carolina. "We’re hoping right now for a really open and honest and conclusive hearing so that we don’t have to deal with that."
State courts decided what appears to be last repeat congressional election in 1974 when a judge ordered a special after a malfunctioning voting machine threw into question a close race in Louisiana's 6th District.
It’s a hectic cycle in North Carolina politics. Along with featuring what are expected to be competitive Senate, governor, and presidential contests, the state will hold at least one special in 2019 to fill the seat left vacant by the late Republican Rep. Walter Jones in the 3rd District. Meanwhile, the Supreme Court is considering a partisan gerrymandering challenge of the entire congressional map by plaintiffs who allege it is an illegal partisan gerrymander. A decision could upend the 2020 primaries.
“This is one of those stories you just have to sit and watch and see what develops,” said Carter Wrenn, the dean of the state’s Republican consultants. “We could have two special elections and new map and then have 13 more elections.”