Republican Mark Harris’ margin of victory in the 9th congressional district race is in question because of alleged election fraud, and a judge ruled Tuesday the results wouldn’t be certified until the State Board of Elections gets to the bottom of it all.
“There’s an investigation going on,” said Senior Deputy Attorney General Amar Majmundar. “It’s an open question as to who rightly won this election. Yes, there is urgency, but the urgency is not by virtue of chronology, it’s by virtue of getting it right.”
Majmundar represented the State Board on Tuesday in a Wake County Superior Court hearing requested by Harris to certify the election, which he unofficially won by a narrow 905 votes.
The board — then known as the Bipartisan State Board of Elections and Ethics Enforcement — initiated an investigation in the 9th congressional district in late November after discovering absentee ballot irregularities. Much of the evidence uncovered since then has been concealed from the public and the candidates themselves, Harris and Democrat Dan McCready.
Neither Harris nor McCready were present for the hearing.
The situation has been complicated by the fact that the nine-member state board that started the investigation dissolved at the end of December, after a court ruled that it had been unconstitutionally constructed by GOP legislative leaders.
While the investigation has been ongoing without disruption — the agency is still functioning — there is a gap in when a new state board can take over. The law creating a new five-member board goes into effect Jan. 31.
One of Harris’ attorneys, David B. Freeman, said after Tuesday’s hearing that Harris looks forward to presenting his case to the new board. He expressed frustration about the lack of transparency in the investigation, and said suing the state board was Harris’ only option.
“Again, since Jan. 3, we’ve kind of been in the wilderness,” Freeman said. “We wanted the opportunity for Dr. Harris to tell his story. He told his story to the election board here today. We want things out in the open.”
He and two other attorneys for Harris argued Tuesday in the courtroom before Judge Paul Ridgeway. They said the state board disregarded a mandatory timeline set out in the law and were required to certify the election.
“We are not in any way saying an investigation should not occur,” said attorney Alex Dale, suggesting that the investigation could be parallel to the certification of the election. “We can’t be in a process that has no end.”
He pointed out that Harris petitioned the state board to certify the 9th congressional district race before it dissolved and before taking any legal action, but it refused to even call a meeting.
Ridgeway said he was concerned about the authority of the state elections board’s executive director, Kim Westbrook Strach, to certify the race since the state board was ruled unconstitutional and she hadn’t technically been properly appointed in the interim.
Dale assured him she could mandate the certification and said he didn’t want to belabor that point.
Another attorney for Harris, Dudley Witt, told Ridgeway that there weren’t any underlying facts supporting the investigation, also referred to in court as a “protest.”
“We don’t know the number of votes that would be an issue,” he said. “There’s no evidence before this court that there is any taint at all.”
Ridgeway questioned why Harris’ arguments weren’t more appropriate for the new state board, which is to be seated in nine days.
“Why is it there is this urgency?” he asked.
Witt responded that certifying the election would provide certainty for the voters in the 9th congressional district for the next two years.
“This is an extremely unusual situation with no board in place, and asking this court to step in and exert extraordinary power to declare the victor in an election that is clearly the purview of other branches of government,” Ridgeway said.
He said he wasn’t sure the uncertainty Witt discussed would solve anything, when he and his client could wait to present their arguments to the new state board in nine days and then follow through with litigation if necessary.
Majmundar, for the state board, agreed that the court issuing a writ of mandamus — which is the request to certify the election — would be an extraordinary remedy. He pointed out that the board, even with nine bipartisan members, met twice with evidence before it and still decided not to certify the election.
He said Harris’ counsel was presenting arguments through a prism of procedure, but nowhere in the law does it dictate an election has to be certified if the number of suspect votes was not greater than the margin of victory.
“It’s not just the numbers that are in play, it’s the taint of fraud as well,” he said, adding that still, the evidence would show that margin is in question.
Majmundar said the nature of the fraud is just as important as the scope of the fraud, and the state board needed time to investigate properly. He also said the executive director did not have the authority to certify the election.
“It’s the board’s discretion, not the executive director’s discretion,” he said.
As for the timelines, Harris’ attorneys weren’t wrong that the law lays out specific timelines, Majmundar contended, but they are predicated on having a final determination from the state board.
“I don’t think this is usurping the will of the voters, I think this is confirming the will of the voters,” he said of the investigation. “We want to be sure we get this right. Once this election is certified, the board is without authority to conduct any remedial action, no re-canvassing, there can be no new election. Maybe that’s the point; let’s get this certification in between the two boards. But, that may actually usurp the voters, judge.”
Marc Elias, a Democratic attorney representing McCready, agreed with the state board’s arguments. He said there was no mandatory timeline in the case and it was within the board’s discretion to take its time and get things right.
“Dr. Harris’ lawyers have said a number of times in their initial petition and here today that they are frustrated they don’t have access to the underlying facts; they wish those facts were made public, they wish those facts were transparent,” Elias said. “So do I. I wish they were public, and I wish they were transparent too. But my wishes don’t make it a mandamus action, nor do theirs.”
Ridgeway heard about two hours of argument from all the parties and took about 30 minutes to consider the case before delivering his decision. He did make clear at the beginning of the hearing he had already read all the arguments in the case and was well-versed in the issues.
He said that certification of the election was not appropriate until the state board made a final decision in the investigation.
Freeman said they appreciated the opportunity to be heard, but they were disappointed in Tuesday’s outcome for Harris and for the voters of the 9th congressional district.
McCready’s spokesman, Aaron Simpson, said after the hearing there were a lot of questions that still needed to be answered.
“I hope that we are one step closer to a conclusion,” he said. “At the end of the day, I think both sides agree that it’s most important that the people in North Carolina have a voice in Washington and have answers to the questions that so far they don’t.”
He said the McCready team knows election fraud took place, and that in some accounts it was substantial, but he was just as much in the dark about the details of the investigation as everyone else.
“There can be no place for election fraud in our democracy,” Simpson said. “Election fraud is an attack on our democracy, and 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.”