The prospect Democrats will get their wish for a new election in the 9th Congressional District could be getting stronger.
A growing body of news reports suggests coordinated election irregularities occurred in Bladen and Robeson counties, challenging last month’s narrow victory by Republican Mark Harris, a Baptist preacher. Harris defeated Democrat Dan McCready, a solar investor, by 905 votes Nov. 6, according to unofficial figures. Libertarian Jeff Scott, a business intelligence and technology consultant, ran a distant third.
Gerry Cohen, former special counsel to the General Assembly, said either the Bipartisan State Board of Elections and Ethics Enforcement or the U.S. House of Representatives could order a new election if substantial anomalies in mail-in absentee ballots in Bladen and Robeson counties warrant it.
Several senior lawmakers have scheduled a news conference for 11:30 Thursday at the General Assembly to make an announcement about irregularities in Bladen County.
If the 116th Congress ordered a new election for the 9th District, it would be the first time the House has done so since the 1990s.
At issue is whether campaign workers may have unlawfully filled in votes for Harris, and if ballots the voters filled out for McCready were trashed.
Leslie McCrae Dowless, who has done what was termed get-out-the-vote work with the Harris campaign and other Republican campaigns, is at the heart of the probe.
Dowless was an independent contractor hired with cash payments by the political consulting firm Red Dome Group, founded by Andy Yates. The Harris campaign paid Red Dome slightly more than $429,360 from Aug. 1, 2017, to Oct. 17, Federal Election Commission campaign finance reports show.
While the Harris campaign was paying Red Dome, the firm had been dissolved administratively by the N.C. Department of the Secretary of State because it hadn’t filed its annual report.
Liz Proctor, a spokeswoman in the Secretary of State’s Office, said Red Dome failed to file a required annual report for several years, leading to the administrative dissolution. Red Dome no longer has a corporate structure to provide tax or legal liability advantages and protections, but could function as a sole proprietorship. The Secretary of State does not have legal authority to order a business to close.
Yates has not responded to Carolina Journal requests for an interview.
Dowless, a convicted felon with several arrest records, apparently hired people to sign as ballot witnesses and collect absentee mail-in ballots from residents in Bladen and Robeson counties. Either would violate state election law limiting collection and submission of ballots to voters, near family members, or legal guardians. Two women have told news outlets they were among several people paid by Dowless to pick up the ballots and turn them over to him.
The elections board voted to hold an evidentiary hearing by Dec. 21, though the board is slated to disband by court order Dec. 12. Legislation is moving through the General Assembly to reorganize the board into two agencies. The legislation attempts to overcome the court’s ruling that the current board structure violates separation of powers.
However the dispute over the elections board is settled, Cohen sees multiple potential election scenarios. In the worst case, the 778,000 voters in the district might not be represented in Congress for the better part of a year.
The staff of current Rep. Robert Pittenger would continue providing constituent services and other administrative functions for the district until the new member was sworn in.
Cohen quoted the portion of state statutes empowering the state elections board to call a new election when “irregularities or improprieties occur to such an extent that they taint the results of the entire election, and cast doubts on its fairness.”
Based on recent reports and publicly available voting data, those doubts may exist, Cohen said.
Cohen said Republicans are right in one regard. The number of submitted ballots in dispute wouldn’t change the election outcome to McCready’s favor. But, he said, it may be impossible to know how many ballots for McCready might not have been submitted.
An analysis by Catawba College political science professor Michael Bitzer determined Bladen and Robeson counties had the highest percentage of unreturned mail-in ballots in the state. A News & Observer analysis found 24 percent of mail-in ballots weren’t returned throughout the 9th District. But 64 percent of mail-in ballots went unreturned in Robeson County, and Bladen County’s figure was 40 percent. The number of unreturned ballots was highest among blacks and American Indians.
If the state ordered a new election, Cohen said, only the three candidates on the Nov. 6 ballot could run — Harris, McCready, and Scott. March probably would be the earliest date for an election. A political party can replace its candidate in a new election, but only if the prior candidate died or moved out of state.
Cohen speculated if the elections board seated Harris, and evidence proves he was involved in felony election fraud, the Democratic-controlled 116th Congress would expel him.
Rep. Steny Hoyer, D-Maryland, set to become Democratic majority leader, Tuesday told The Hill Harris wouldn’t be seated in January if the election fraud allegations were unresolved. If a result favoring Harris appeared to be partisan, Democrats would investigate.
“The House … has the authority over the propriety of the election. This is a very substantial question [and] it ought to be resolved before we seat any member,” Hoyer said.
Even if the state called a special election, Congress could put it on hold to conduct its own investigation, or order an entirely new election, Cohen said.
“The U.S. Constitution says each house shall be the judge of the election of its members, and the courts have said Congress has sole jurisdiction,” Cohen said.
Mark Gaber, senior legal counsel at the Washington, D.C.-based nonprofit Campaign Legal Center, said an appeal for a new election would go to House Rules Committee. In the past it appointed a bipartisan committee to conduct investigations.
“There hasn’t been a contested election in the House since the 1990s,” Gaber said. It was in California. A new Indiana congressional election was ordered in the 1980s.
Hopes for a bipartisan probe may seem dim in today’s politically polarized environment, Gaber said, though he expects the same nonpartisan process would be followed.
A congressionally ordered election would require a filing period, and primaries in March if more than one candidate in a party filed, Cohen said. The Constitution or Green parties could jump in the race. A second primary could be necessary, likely in May, with a general election in July. If a second primary isn’t necessary, the general election could occur in May, Cohen said.
“That would be an optimistic timetable given North Carolina’s election laws, and the requirement that every election have 45 days for absentee voting,” with post-election certification and canvassing, Cohen said.