Last Thursday was the first day of the 116th Congress, but only 434 representatives took office. One seat remains vacant: the North Carolina 9th District, where the outcome remains in doubt as a result of possible election fraud. Accusations of misconduct by a Republican operative continue to pile up, but the investigation is, somehow, likely an even longer way from a conclusion than it was last month. Now, the courts — and the new U.S. House of Representatives — are considering getting involved and may decide whether the 9th District hosts an entirely new election later this year.
Over the last few weeks, more witnesses have given statements supporting the allegation that Leslie McCrae Dowless, a consultant working on behalf of Republican Mark Harris’s campaign, coordinated an effort to illegally collect (and, perhaps, destroy) absentee ballots.1 When we last wrote about the scandal in December, there was already plenty of suspicion surrounding Dowless; since then, more voters have signed affidavits saying Dowless personally collected their absentee ballot, which is illegal in North Carolina. According to one voter’s statement, at one point Dowless said he had “over 800 ballots in his possession.” Another affidavit, from a member of a local elections board, suggested that county elections officials may have given Dowless access to absentee voters’ sensitive personal information, like Social Security numbers. The affidavit claimed that, when elections staff discovered absentee-ballot request forms that they believed were forged, one local official (who has since resigned) contacted Dowless rather than taking the issue to the state board of elections. Dowless himself has said in the past that he encouraged local officials to contact his team, rather than the voters whose names were on the absentee-ballot applications, if there were any problems with the forms he and his crew submitted.
We also learned that, over the last two years, state investigators repeatedly tried to bring suspected absentee-ballot fraud in the 2016 election to the attention of local district and U.S. attorneys. State officials specifically recommended in January 2018 that criminal charges be brought against Dowless for illegally collecting absentee ballots in 2016, but prosecutors apparently did not act on this recommendation or the previous tips. The Washington Post also reported that Harris ordered Dowless’s hiring even after being told that Dowless had a criminal record and after Dowless had publicly testified about irregular election practices.
The North Carolina State Board of Elections had scheduled an evidentiary hearing to be held on or before Dec. 21. But on Dec. 14, the board announced that they were still awaiting some documents and delayed the hearing to Jan. 11. But now that hearing isn’t happening either; in fact, it’s been postponed indefinitely.
That’s because North Carolina currently has no state board of elections at all — and no board means no hearing. After the Republican legislature passed a series of changes giving itself more power over the state elections board (part of a larger effort to curtail the power of the then-new Democratic governor), a state court ruled that the board’s resulting makeup was unconstitutional. On Dec. 28, the board was dissolved.2 Under a new law passed last month, the board will reconstitute on Jan. 31 in its pre-2017 form: with five members (no more than three from any one party) chosen by the governor from lists submitted by the state Republican and Democratic parties.3 However, the board’s staff continues to investigate the election fraud allegations behind the scenes. For example, on Jan. 3, Harris met with the board’s executive director and chief investigator.
The same day, the Harris campaign filed a lawsuit arguing that a court should compel the board to certify the election results. It’s unclear when the court will rule on Harris’s motion (a hearing date has not been set, but legal briefs in the case are due Jan. 14), but it may not matter what the court decides. Even if Harris shows up in Washington with a certificate of election, the House has the final word on admitting him, and its newly minted Democratic leadership has said they would not seat him as the situation currently stands. Over the weekend, Politico reported that House Democrats were even preparing to launch their own investigation into potential fraud in the 9th District.
There’s also the possibility (still a long way off) of a new election in the 9th District. And if the state board of elections orders a revote (which it has the authority to do if it finds that “irregularities or improprieties” tainted the results), there would be a new primary in addition to a new general election, per that same law the legislature passed last month. If the U.S. House chooses to investigate, it too can trigger a new election — including a primary — by declaring the seat vacant.
Several Republicans have been mentioned as potential challengers to Harris in that hypothetical primary. Former Mecklenburg County Commissioner Matthew Ridenhour (a Marine veteran like probable Democratic re-candidate Dan McCready) has been the most explicit about his interest. However, two big-name Republicans have already said they won’t run: former Gov. Pat McCrory and former 9th District Rep. Robert Pittenger, who lost the 2018 Republican nomination to Harris in a primary that may have also been tainted by election fraud. There’s going to be plenty of time for the field to develop: With the new delays in the investigation and the potential need for three rounds of voting (a primary, a runoff and a general), it’s now possible that the 9th District’s representative to the 116th Congress won’t be chosen until November 2019.