Scheduling a special election for the 3rd District could be tricky

Figuring out the logistics for a special election to fill the vacancy left by the passing of Rep. Walter Jones Jr., R-3rd District, won’t be easy, said Gerry Cohen, former special counsel to the General Assembly.

North Carolina has its second congressional vacancy after Jones died Feb. 10. The 9th Congressional District is also without a representative while investigations into alleged absentee ballot fraud continue. The State Board of Elections has scheduled an evidentiary hearing next week to consider those allegations.

Gov. Roy Cooper is tasked under the U.S. Constitution to issue a writ of election for the 3rd Congressional District to fill the vacancy left by Jones. The writ of election will set the dates for candidate filings, primaries, the special election itself, and provide enough time for absentee voting.

The question now is what the timeline for a special election will actually look like and what challenges election officials might face. Cohen has some ideas on what North Carolinians can expect for a special election.

Cohen said if the governor opened candidate filing next week, then realistically the earliest a primary could be held is early May. After allowing time for a canvass, recounts, and preparing absentee ballots for the next election, a second primary could be scheduled for July.

Municipal elections for the counties in the 3rd Congressional District will be in November, with several municipalities holding nonpartisan primaries in October.

“It’s a lot of moving pieces trying to figure out how to shoehorn the special election in with the municipal elections going on,” Cohen said.

Federal law requires 45 days for absentee voting in the case of U.S. House vacancies. The timeline for a special election will have to take that into account, as well as carving out time for a second primary if no candidate receives 30 percent of the vote. The governor could speed up the timeline if there isn’t a second primary, but he would have to specify that in his writ of election.

“We could wind up with a primary in May and maybe a spot for a runoff election in July, but then it becomes harder to work in the election itself,” Cohen said.

The special election itself could be scheduled for November alongside the municipal elections. That’s what former Gov. Pat McCrory did after former Democratic Rep. Mel Watt resigned from the 12th Congressional District in mid-January 2014 to take a job running a federal housing agency.

Cohen said the special election for the 3rd District will be the state’s first standalone U.S. House vacancy primary, assuming two or more people file in a party.

“A standalone primary would probably mean a lower turnout, and it will probably be pretty expensive to run it on its own,” Cohen said. “We have this new early voting law passed last year that gives counties very little discretion in their early voting schedule. They have to have 13 weekdays [of early voting], 7 a.m. to 7 p.m.”

The state’s new voter ID law will complicate a special election for the 3rd District. Carolina Journal asked the N.C. State Board of Elections how the voter ID law would affect the 3rd Congressional District special election. At press time, the legal team for the state board was considering the question.

During the November 2018 general election, voters approved a constitutional amendment to require photo ID in all future elections. The General Assembly passed Senate Bill 824 to set the standards for voter ID, but the elections board hasn’t approved regulations defining the allowable forms of ID.

“The state isn’t and won’t be ready for these new special county IDs,” Cohen said.

With a special election possible in the contested 9th Congressional District, lawmakers pre-emptively exempted that race from the voter ID law. No such exemption was carved out for a sudden vacancy this year, meaning the voter ID law would probably apply to the special election for the 3rd District. Cohen said there isn’t enough time for the election boards to comply with voter ID in time for a May primary, but lawmakers could pass a legislative fix.

“I don’t know whether the legislature will step in to do that, but I don’t see how the counties could possibly administer a voter ID system in a May primary when a lot of the rulemaking is still going on and the counties would be lucky to start issuing these IDs in May,” Cohen said.

Cohen said 1818 is the most recent time North Carolina has had two different U.S. House vacancies in the same year.