Republican Rep-elect Mark Harris will get his day in court. Thursday, Jan. 3, he filed a petition in Wake County Superior Court seeking to declare him the victor in the 9th U.S. Congressional District election. Harris cites a recent precedent by the same court to support his demand.
Late Thursday afternoon, Superior Court Administrator Kellie Myers said the court would hold a hearing on Harris’ request. A date for the hearing wasn’t set. But the parties were asked to submit briefs to the court no later than Monday, Jan. 14.
Libertarian Jeff Scott, who ran against Harris in the Nov. 6 election, came out in support of his GOP opponent. He chided Democratic runner-up Dan McCready for refusing to demand a recount of his 905-vote loss and then casting doubt on the integrity of the outcome.
Scott questioned the state Board of Elections’ statutory authority to investigate results of the congressional race even though a formal protest wasn’t filed, and he accused Democrats of orchestrating a circus-like spectacle.
The 9th District election is the nation’s last undecided race. The now-defunct Bipartisan State Board of Elections and Ethics Enforcement refused to certify the results, launched an investigation, and scheduled an evidentiary hearing Jan. 11. A court order dissolved the unconstitutionally structured board and the hearing was scuttled when Democratic Gov. Roy Cooper abandoned plans to convene an interim board.
The elections board’s refusal to certify Harris cited suspicious absentee ballot activity heavily favoring Harris in Bladen and Robeson counties. Leslie McRae Dowless, who Harris hired, was named a person of interest in the investigation. Dowless and people he employed deny helping voters fill out absentee ballots, or collecting them; either violate the law.
Harris asked the Wake County Superior Court for a writ of mandamus — a court order requiring a government agency, which has refused to perform its statutory duties, to carry them out.
Harris’ filing cited a similar petition from December 2017. In it, Wake County Superior Court Judge Paul Ridgeway required the Watauga County Board of Elections to certify the victories of three Boone Town Council candidates.
The former chairwoman of the county Republican Party protested certification, but the state elections board was vacant due to a court battle between Cooper and the Republican-led General Assembly.
Harris says his case parallels the Watauga County ruling. The state elections board now has no members, legislation passed to create a new elections board won’t take effect until Jan. 31, and board terms won’t begin until May 1.
“It is incomprehensibly disadvantageous to the constituents of the 9th District to lack a representative in Congress for any period of time, no less for the extended period until the new State Board is operational,” the petition says. The 116th Congress was seated Thursday without Harris.
The state elections board’s refusal to certify flouts “a state statute enacted by North Carolina’s General Assembly, [and] effectively replaces the wills of the voters and Legislature with its own,” the petition says. “This Court provides the only available avenue to protect the citizens of the 9th Congressional District from being denied congressional representation.”
Harris and two attorneys representing him met with elections board Executive Director Kim Strach and Chief Investigator Joan Fleming for nearly two hours Thursday morning, an elections board news release says.
Strach said Harris was cooperative.
“I look forward to a resolution soon so I can do what I was elected to do in Congress and be a voice for the people of the 9th District,” Harris said in a separate news release. He said he supports the elections investigation.
Scott said he agrees with the legal arguments Harris made in his petition. Scott may also file a petition. He has not been contacted by elections board investigators despite having standing in the case.
McCready “either made a bad decision or was ill-advised not to request a recount. Maybe he was just thunderstruck” after spending $6.1 million and losing, Scott said. Demanding a recount might have resolved the issue.
While he didn’t begrudge McCready rescinding his initial concession to Harris, Scott said the flip-flop “made him look a little more foolish.”
Scott said he was reluctant to jump into what may be a long and expensive legal battle.
But he doesn’t believe Harris, a Baptist preacher, would take part in a conspiracy to rig absentee ballots.
“I think the Democrats, to their credit, are smart enough to know that they can turn this into a huge carnival of shame where everybody is afraid to say anything” at an evidentiary hearing because they don’t know what penalties they might face, Scott said.
“Nobody is going to speak up if they think they’re going to be prosecuted down the line,” Scott said.
Instead, Scott suggested a plan offering immunity to people who provide evidence of ballot fraud — which reportedly spans a number of elections — if doing so would clean up future campaigns. Republicans and Democrats should be interested in such an approach if it would end alleged ballot harvesting, he said.
But McCready attorney Mark Elias of the Washington, D.C.-based Perkins Coie has different ideas, Scott said, referring to a letter Elias wrote to the state elections board.
Elias said McCready doesn’t want to compel testimony from witnesses because it may prevent them from being prosecuted later. McCready wants to allow witnesses to invoke their Fifth Amendment rights against self-incrimination instead of granting them immunity, Elias wrote.
Scott worries the elections board might use Fifth Amendment claims as evidence enough election fraud occurred to justify a new election.
“The Democrats are not friends of the First Amendment, and clearly they’re not friends of the Fifth Amendment,” Scott said.