Why the North Carolina Election Board Should Punt to the House

Yesterday the North Carolina election board began hearing testimony regarding alleged fraud and misconduct affecting the 2018 election in the state’s 9th congressional district. Attorneys for Dan McCready, the Democratic candidate who finished 905 votes behind his opponent, urge the board to exercise its authority under NC Gen. Stat. 163-182.13 (a) (4), which allows it to order a new election if it finds “irregularities or improprieties occurred to such an extent that they taint the results of the entire election and cast doubt on its fairness.” Attorneys for Mark Harris, the Republican candidate, argue that the statutory standard has not been met and that in any event the discretionary remedy of calling a new election should not be employed.

My prior post on this issue assumed North Carolina’s authority to call a new election here would have to rise or fall based on the House Vacancies Clause (art. I, § 2, cl. 4) in the U.S. Constitution. Under this theory, the decision of the state election board to order a new election would have to be viewed either as a legally operative act creating a vacancy under North Carolina law or as prima facie evidence that a vacancy already exists. In either case the governor would have to issue a writ of election to comply with the House Vacancies Clause, which provides “[w]hen Vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”

This theory, however, seems problematic. For one thing, it is not at all clear that the governor will play any role here. There is a statutory provision for filling congressional vacancies, NC Gen. Stat. 163A-721, which the governor will use to fill the vacancy caused by the death of Congressman Walter Jones (RIP), but this provision appears to operate separately from the state election board’s process for calling new elections. Moreover, any attempt to argue that a vacancy exists would have to grapple with the fact that the House itself has not recognized a vacancy.

An alternative theory would be that the state election board’s authority flows from the state’s general power to regulate elections under the Constitution (art. I, § 4, cl. 1), which provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .” Under this theory, North Carolina’s statutory scheme would prescribe the “time” and “manner” of electing representatives in situations where the initial election failed.

The problem with this theory, as mentioned in my earlier post, is that it seems to run afoul of 2 U.S.C. § 7, which provides that the general election for representatives to each congress must take place on a single uniform day in all states (i.e., the Tuesday after the first Monday in November in every even-numbered year). This federal law overrides any state law to the contrary. See generally Foster v. Love, 522 U.S. 67 (1997). As far as I know, there is no federal law allowing a “do over” exception to this mandate.

Therefore, it seems to me that any order from the North Carolina elections board ordering a new election in this case would run a significant risk of being held unconstitutional and/or a violation of federal law.

Another problem is that the elections board can only order a new election if four of its five members agree to do so. The board consists of three Democrats and two Republicans, creating a distinct possibility that it will be unable to reach agreement on the proper course of action. McCready’s lawyers argue that in such case the board should decline to certify the election and instead send its findings and records to the House of Representatives, deferring any further action until the House decides what to do. Harris’s lawyers counter that North Carolina law requires the board to either order a new election or certify Harris as the winner.

Whether or not a vacancy exists in this case is a determination only the House ultimately can make (however much it may wish otherwise). Regardless of whether the board certifies Harris as the winner, it should send its records, along with any findings or recommendations it deems fit to make, to the Committee on House Administration for purposes of allowing the House to make that determination. No election should be called until the House does so.