Republican U.S. Rep.-elect Mark Harris took a big swing, and he missed.
Tuesday, Wake County Superior Court Judge Paul Ridgeway rejected Harris’ petition to force the State Board of Elections to certify him the winner of the hotly disputed 9th U.S. Congressional District election.
In an order he read from the bench, Ridgeway questioned the need for such drastic action by a court when a separate agency — the State Board of Elections — has the legal authority to certify Harris or not. “Why are we looking at a dramatic intervention by one branch of government into the function of another branch of government?” Ridgeway asked.
The elections board’s structure was ruled unconstitutional in October by a state court, but the General Assembly created a new board which will open for business Jan. 31. That board, Ridgeway said, would have the complete investigatory record, which he doesn’t have. The new board would have statutory authority to issue an election certification, and either side would have the right to appeal its decision.
“For these reasons the court concludes [Harris] has not shown the clear right to the extraordinary relief” he sought, Ridgeway said in his ruling.
Harris attorney David Freeman said he still expects the Baptist preacher to be seated. The Harris team may appeal the decision. Harris is under doctor’s care for an infection and wasn’t in court.
Aaron Simpson, spokesman for Democratic runner-up Dan McCready, said the ruling ensures an investigation and evidentiary hearing will continue. At issue is whether Harris won because of alleged election improprieties, or if the process was so tainted a new election should be ordered. McCready was not at the hearing.
During arguments, Harris’ attorneys said there’s a need to certify the candidate quickly. Ninth District constituents are not represented in Washington, the U.S. House of Representatives is making important committee assignments, there is no public evidence enough votes are in dispute to change the election outcome, and there’s no elections board to decide the dispute.
Harris asked Ridgeway to order the elections board staff, which continues to work, to certify the results showing Harris won by 905 votes.
Harris’ lawyers contended this case paralleled earlier decisions by judges who forced state agencies to fulfill their duties. Ridgeway rejected arguments the criteria were met.
This case is tangled up in the second round of lengthy Cooper v. Berger lawsuits in which Gov. Roy Cooper sued the General Assembly for altering the makeup of the state elections board.
A three-judge Superior Court panel ruled in October the state elections board was unconstitutional. It ordered the board disbanded, but granted several stays of the ruling to allow the Nov. 6 election to be held uninterrupted, and for the congressional election investigation to be completed.
But the judicial panel surprisingly dissolved the board in December. It reprimanded former board chairman Joshua Malcolm for refusing to meet court deadlines to finish its work.
Harris attorney Alex Dale said there is no guarantee a new elections board will move quickly, further delaying a new representative from taking office.
Dale also argued that the board never formally protested certifying the election, a requirement to extend deadlines. There were no protests from McCready or any voters, and all county boards of elections in the 9th District certified their results.
Ridgeway agreed with McCready attorney Marc Elias, who said the elections board voted twice on Malcolm’s motion not to certify the election. Those votes met the legal standard for a protest.
Elias said the elections board has sweeping powers to ensure there is no taint, fraud, corruption, or irregularities in an election. It can take its time to get the decision right, even if doing so delays certifying a candidate.
Amar Majmundar, senior deputy attorney general representing the elections board, said the investigation may unearth evidence which could lead to federal prosecution. No one is sure who won, he said. While admitting he doesn’t know what’s in the investigatory record, he said he’s confident evidence will show Harris’ 905-vote lead is in question.
After the hearing Harris attorney David Freeman said Harris will continue to cooperate with the investigation, and didn’t oppose the probe continuing alongside his quest for certification.
The Democratic-led U.S. House of Representatives has final say on seating members, and authority to order a new election. Freeman said if a full and fair hearing is held, Harris will be certified.
“We do know that election fraud took place, we do know that by some accounts it was substantial, and that’s worth looking into,” McCready spokesman Aaron Simpson said.
“Election fraud is an attack on our democracy,” Simpson said. “If election fraud took place, that’s not a Democratic issue. It’s not a Republican issue. That is an American issue, and those responsible need to be brought to justice.”
In a statement after Ridgeway’s decision, N.C. GOP Chairman Robin Hayes said he was confident Harris would prevail. “Nothing about today’s court hearing changes the fact that Congressman-Elect Dr. Mark Harris won the election. He received more legal votes and no public evidence has shown the outcome is in doubt.”