NC09 Follies

Ken AshfordCourts/Law, Election 2018, Local Interest, Voter Suppression & Voter SecurityLeave a Comment

It is hard to describe the craziness going on in the Ninth District of North Carolina. But I will try.

We really need to start in December 2016. Following a bitter gubernatorial campaign where incumbent Republican Pat McCrory is defeated by Democrat Roy Cooper, the GOP NC General Assembly holds special sessions before the new Democratic governor comes into office.

In the special session, the Republican-lead legislature, with a lame-duck Republican governor, passes some sweeping measures to impact the incoming Democratic governor’s power, especially over appointments to certain boards. Most notably, the legislature created a proposed (at that time) 8-member bi-partisan board to oversee elections and ethics enforcement, thus merging the State Board of Elections (composed of 3 members of the governor’s party & 2 members of the opposition party) with the Ethics Commission to create the NC State Board of Elections and Ethics Enforcement.

When he assumed office, Democratic Governor Cooper sued over the creation of the board and various other aspects that the Legislature had enacted.

In their ruling, a 3-judge panel held that the law combining the Elections Board & Ethics Commission was unconstitutional, but split their decisions on other issues, while upholding the legislature’s right to State Senate confirmation of governor’s cabinet appointments.

So, the legislature again created a bi-partisan Elections & Ethics oversight agency, and again (you guessed it) Governor Cooper vetoed it and again, the legislature overrode his veto.

So now we’re into June, 2017, with a constant back and forth between the Republican legislature and the Democratic governor, and the challenged State Board of Elections and Ethics goes before the 3-judge panel again. This time, they find it to be constitutional with some revisions made.

End of story, right? Nope. Governor Cooper, the Democratic governor, appealed that 3-judge ruling (the one which said the second version of the Elections and Ethics Board was okay) to the NC State Supreme Court. And in a 4-3 decision, the high court struck down the second attempt and sided with the governor.

It was another badly split decision, but now we’re up to Version 3.0 of an oversight agency for elections and ethics enforcement in North Carolina. Yup, early in 2018, the legislature passed a nine-member Board of Elections & Ethics Enforcement which consists of 4 Democrats, 4 Republicans, and 1 unaffiliated. And again, Governor Cooper challenged it.

Despite the legal challenge, this 9-member board has been in operation so far this year, and was put forward as a constitutional amendment proposal this November to the voters to ratify.

However (and you knew that was coming, right), before we even got to November’s election, there was a hiccup: Remember those three judges in the mix of all this? Well, in the middle of October, right before the general election, they struck down the 9-member board structure and gave another win to the Democratic governor.

BUT since the ruling was a couple of weeks before the general election and the vote on the constitutional amendment, the three judges stayed their decision until after the November elections to let this clear up and then deal with the aftermath of what will be the new board structure. They did this because they assumed that the November election would run smoothly, that the results would be all certified, and then we could turn out weary attention back to the establishment of a new State Board of Elections and Ethics Enforcement that would clear up everything.

One problem: the November election did NOT run smoothly. NC09 happened.

In the Ninth District, Republican Mark Harris beat Democrat Dan McCready for the US House by roughly 900 votes on Election Day. But those results have been marred by explosive allegations that an operative working for the Harris campaign collected, tampered with or even destroyed absentee ballots. 

So, we’ve got the third version of the NC State Board of Elections ruled unconstitutional and designed to go out of business after they certify the election results. And they have to address the problem of the Ninth District.

The NCSBE does not certify the NC09 resujolts, and orders an investigation on December 1.

So, the three judges issue a stay of their first order, giving both the general assembly time to craft a FOURTH version of a NC State Board of Elections structure, while allowing the current 9-member NCSBE to conduct an investigation in the Ninth District by December 21.

But then, a week prior to their own December 21 deadline, the current NC State Board of Elections announces a hearing on the Ninth District to be held in January 11. Bit of a problem, yes? The three judge panel had extended the stay to December 28 (today), but that is still before the January 11 hearing.

This brings us to yesterday, where the three judge panel ruled…

… NO MORE STAYS. It seems like the three judges were none too pleased with the current NC State Board of Elections doing a hearing after the judges’ own extension deadline.

So what happens? Who is going to deal with the Ninth District issue after today?

Well, it seems we have a new State Board of Elections that reverts back to pre-December 2016.

But it seems “technically” that new 3-2 State Board of Elections might not go into effect (assume power) until January 31.

But there’s a January 11 hearing on #NC09, you say? Yup.

And the new Congress starts January 3, you say? Yup.

So what happens? Well… nobody knows.

We know the Democrats in the US House have said, pretty clearly, that they aren’t seating a representative from the NC09. And it seems, for now (until an appeal is filed or a lawsuit again made), that the current (9-member) NCSBE will cease come high noon today.

Which is why, late last night, Harris campaign filed an emergency petition to certify the election prior to noon today with the current NCSBE.

Republican Mark Harris is trying to get the election certified, so that he wins, even though the House won’t seat him. His legal arguments boil down to:

Although he DID say something odd on the radio this morning:

“Dowless” is the guy at the center of the Ninth District controversy: the one who created and destroyed absentee ballots.

About an hour ago, Governor Cooper asked the North Carolina Republican Party and the North Carolina Democratic Party leaders for new nominations to the five-member Board of Elections, now resurrected as of noon today (20 minutes from now as I write this).


As for the governor’s letter….

Meanwhile in controversy itself, the evidence continues to pile up. On Christmas Eve, Joe Bruno, a reporter for the local news outlet WSOC, added another piece to the puzzle. Three voters testified in sworn affidavits that they had filled out their absentee ballots and then given them to a person who came to their house and promised to deliver the ballots to state officials to be counted.

Bruno checked public voting records and found that none of those voters had actually had their ballots counted.

It’s a constantly developing controversy, but here is some of what we know so far about the alleged ballot tampering scheme in the North Carolina Ninth Congressional District:

  • Two counties in the district, Bladen and Robeson, had an unusually high number of absentee ballots that were requested but not returned for the 2018 election.
  • Several voters in those counties said in sworn affidavits that an unidentified woman came to their house and collected their absentee ballots. One voter said the woman promised to finish filling out the incomplete ballot for them. Another voter said the ballot was not signed or sealed when the woman took it.
  • In an interview with WSOC, the voter who said she’d selected her choices for only two offices on the ballot before handing it away identified Lisa Britt as the woman who collected her mail-in ballot.
  • Britt is the stepdaughter of Leslie McCrae Dowless Jr., a political contractor in the area, BuzzFeed News reported.
  • Dowless was paid by the Harris campaign and was doing absentee work specifically, according to the Charlotte Observer and other affidavits sent to the state elections board. He was previously caught up in allegations regarding absentee ballots in 2016. The Harris campaign still owes $34,000 for absentee ballot work it hired outside contractors for, the New York Times reported.
  • Britt and another woman related to Dowless, Jessica Dowless, told BuzzFeed News they were working for Dowless at an office during the campaign. They described counting the number of Democrats and Republicans who had voted. Absentee ballots were collected and brought to the offices. Dowless was paying his workers cash, even buying one person a car, and some of the staff were using drugs while on the job, per BuzzFeed News’s reporting.
  • Britt and Jessica Dowless were two people who witnessed an unusually high number of absentee ballots that were submitted in Bladen County, according to Judd Legum at Popular Information. Jessica said she was asked to witness ballots that had been brought back to Dowless’s offices.

That is a lot of smoke, and you can see the contours of the scheme: People working to support the Republican campaign were collecting absentee ballots en masse and serving as witnesses for them.

But we don’t know a few critical pieces of information:

  • What actually happened to the ballots that were requested but not returned in Bladen and Robeson counties?
  • How much did the Harris campaign know about Dowless’s activities?
  • Was the unusual activity limited to Bladen and Robeson counties, or are absentee ballots from other counties also in doubt?

Without the answers to those questions, it’s hard to say definitively what the precise scheme was — though the new evidence uncovered by WSOC suggests ballots may have been destroyed or discarded. There were already legitimate concerns those ballots were mishandled, given the testimony of ballots that were collected unfinished or unsealed. We can say that much for sure.

But the list of outstanding questions is long. Another one: Were specific voters targeted? Jessica Dowless indicated to BuzzFeed News that ballots for Democratic or black (or both) voters were a focus, but later seemed to walk that claim back.

Michael Bitzer, a politics professor at Catawba College,  noted that the number of not-returned absentee ballots in the Ninth was unusually high compared to other districts.

Bitzer also found that the share of votes Harris received from mail-in absentee ballots in Bladen was remarkably high. It was the only county where the Republican won the mail-in absentee vote, earning 61 percent to McCready’s 38 percent.

The graph below shows that of the absentee ballots returned and accepted as valid in the county, Harris would have needed to win not only all of the Republican ballots but also almost every single ballot from voters not registered with either party… and even a substantial number of Democratic ballots as well.

All this suggests something very fishy. And now we don’t even know who gets to look into it.

UPDATE: It does not look like the current NCSBE is planning to certify the NC09 election unless a court tells them so.

This Republican representative claims that the powers of the old NCSBE has been transferred to the new NCSBE, whoever is in it. He complains that his mess was caused by Democrats, but who knows if he is correct:

UPDATE #2: And it is done.

The North Carolina state elections board dissolved on Friday under a court order, two weeks before its much-anticipated hearing to consider evidence of possible absentee ballot fraud in the disputed November election for the Ninth District’s seat in Congress.

The unwinding of the State Board of Elections and Ethics Enforcement is a consequence of a long-running battle over partisan power in North Carolina and separate from the election fraud investigation. Yet the dissolution heightened the possibility that the Ninth District seat would remain empty for weeks or even months, and it plunged the chaotic fight for the House seat into deeper turmoil.

Mark Harris, the Republican nominee in the district, appeared to defeat Dan McCready, the Democratic candidate, by 905 votes in last month’s general election. But state officials have been investigating whether a contractor for Mr. Harris engaged in illegal activity to compromise the election on the Republican’s behalf. According to witnesses and affidavits, the contractor, L. McCrae Dowless Jr., and people working for him collected absentee ballots in violation of state law.

The allegations of misconduct prompted the elections board to refuse to certify Mr. Harris as the winner. An ongoing state investigation has involved more than 100 interviews and at least 182,000 pages of records so far, officials said.

…but the staff carries on….

UPDATE #3: It looks like the GOP is not going to play ball. Their position is that Matt Harris is the winner and should be certified (by who?). They are not even submitting names for the governor’s new NCSBE. To which Governor Cooper, through his lawyer, responded:

Basically, he is saying…. okay.