North Carolina Still Has a Problem

Yesterday the North Carolina election board unanimously voted to call a new election in the state’s ninth congressional district, an unexpected result that occurred after the Republican candidate, Mark Harris, basically imploded on the stand and ended up agreeing with his Democratic opponent that a new election was needed. As a practical matter, this might seem to moot my concerns about the legality of this process because, with both candidates and their respective political parties on board, it is difficult to imagine a challenge to a second election being seriously entertained.

Not so fast. It turns out that there is still a dispute about the process for conducting the new election. Under North Carolina law as of the time of the 2018 election, a new election called by the election board is supposed to be limited to the same candidates who were on the ballot in the original election (with some exceptions not relevant here).  See NC Gen. Stat. 163-182.13 (c).

However, in December 2018, after the state election board refused to certify the result in the ninth congressional district, the Republican-controlled North Carolina legislature passed a new law that requires the candidates in a  new congressional election ordered by the board to be selected in primaries. This law, the New York Times observed, “opens the door for Republicans to consider replacing Mark Harris, their candidate in the disputed race in the Ninth Congressional District.” Under the current circumstances, this door is one Republicans are happy to have.

However, the three sitting Democratic members of Congress from North Carolina protested the passage of the new law, contending that “changing the law after the election, to require a new primary, is likely unconstitutional.” Needless to say, the Democrats would be better off if Republicans were required to run Harris as their candidate. Therefore, although the election board apparently intends to follow the new law and require that primaries be held, there could well be a legal challenge to this process.

Assuming for the sake of argument that states have the power to provide for do-over elections under their general authority to regulate congressional elections (art. I, § 4, cl. 1), it is not at all obvious to me whether that power extends to changing the law after an election has already occurred. It is possible that a court would order a new election to take place under the old law, which would deprive other Republican candidates of the opportunity to run. It is also possible that a court would conclude (correctly, I tend to think) that North Carolina lacks the power to provide for a do-over election at all. In either case, there is likely to be a procedural mess, as well as continuing controversy regarding the fairness and legality of the process.

But there is a simple way to avoid this. The House can simply declare the seat vacant (an noncontroversial act now that both candidates agree the first election must be set aside). This will trigger NC Gen. Stat. 163A-721, which requires the governor to set times for both primaries and the general election. It is the same process being used to fill the vacant seat caused by the death of Congressman Walter Jones and, as far as I know, there is no legal objection that could be made to it.

So why not do that?