Future of NCSBE, election fraud investigation in flux as court denies extension, General Assembly overrides veto

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Lawmakers in the General Assembly gave voters the option to approve a constitutional amendment to cap the state's income tax at seven percent.
Published: Dec. 28, 2018 at 6:50 AM EST
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RALEIGH, NC (WECT) - The future of the investigation into claims of election fraud in southeastern North Carolina is suddenly in limbo.

A three-judge panel with the Wake County Superior Court ruled Thursday afternoon it would not grant a request to allow the serving nine-member North Carolina State Board of Elections (NCSBE) to continue past noon Friday.

The ruling came less than two hours after the North Carolina General Assembly voted to override Governor Roy Cooper’s veto of House Bill 1029 and re-instate the state board of elections in its 2016 form with five members appointed by the governor.

In October, the court ruled the nine-member board — created by the General Assembly after the 2016 election — unconstitutionally took power away from the governor’s office, and said it had to be dissolved.

However, with the approach of the 2018 midterms, the court decided to grant the board an extension to keep operating until after Election Day. Then, when claims of absentee by mail ballot irregularities popped up, the court granted another extension, giving the board until Dec. 28 to either call for a new election or certify the races.

The board, citing delays in obtaining documents subpoenaed from the involved parties, scheduled an evidentiary hearing for Jan. 11, two weeks after the court’s deadline.

With the hearing scheduled after the deadline, an emergency request was filed for an additional extension to allow the board to continue the investigation, but in Thursday’s ruling, the panel of judges said the board had not produced evidence in favor of such an extension, and ordered the board to dissolve at noon Dec. 28.

Images of court order courtesy of WBTV.
Images of court order courtesy of WBTV.

Legal counsel for the NCSBE, Josh Lawson, confirmed that interpretation on Twitter Thursday evening. Patrick Gannon, spokesperson for the NCSBE, said the board’s legal counsel is reviewing the order.

The emergency request denied by the three-judge panel was filed on behalf of the campaign to elect Dan McCready, who is unofficially behind by 905 votes in the 9th Congressional District (NC9), where the ballot irregularities surfaced.

The unofficial winner, Republican Mark Harris, was one of the parties subpoenaed by the board.

A few hours prior to the ruling, the General Assembly voted 69-40 in the House and 28-12 in the Senate to override Cooper’s veto of HB 1029. The override enacts the law, which states the new five-member board should be appointed by Cooper as soon as possible. The new board will absorb any remaining business the current board leaves behind.

However, according to the new law, the new board will not take office until Jan. 31, when lawmakers assumed the investigation in Bladen, Robeson and Columbus counties would be complete.

With just two weeks to go before the Jan. 11 hearing, former general counsel for the General Assembly, Gerry Cohen, mused on social media there are limited options for state officials and lawmakers, but options nonetheless.

The McCready campaign and NCSBE could appeal the court ruling, and the Court of Appeals or North Carolina Supreme Court could grant the extension.

Alternatively, Cooper could call a special session, and lawmakers could pass a measure that would change the Jan. 31 start date.

If the board dissolving is considered a vacancy under the new law, Cooper could potentially appoint five members to fill the void until the true new members take over on Jan. 31. Otherwise, it could be February before a decision is made on whether or not to hold a new election in the NC9, meaning it could be mid to late summer before the seat is finalized, unless the U.S. House of Representatives calls for a new election before the NCSBE does.

The makeup of the NCSBE has been a point of contention for Republican party officials since the onset of the investigation when the board voted 7-2 to refuse to certify Harris as the winner of the NC9.

HB 1029 originally passed with some bipartisan support. It addresses the makeup of the board, but also defines what should happen if the election fraud investigation ends in a new election.

If the board calls for a new race, there will also have to be a new primary, extending the amount of time it will take to decide the NC9 winner.

Additionally, the bill would change how investigations are handled by the ethics side of the elections administration arm of the state government. Namely, it would make the initial stages of investigations into campaign finance violations confidential.

Cooper alleged Wednesday the bill would make it easier for politicians to cover up violations, and reduces the transparency of elected officials.

During the debate Thursday, lawmakers went back and forth on that point, with some saying it would provide due process to public figures.

Others, including New Hanover and Brunswick representative Deb Butler, said while there are honest campaign finance errors, the new rules fly in the face of what the public wants, particularly in light of the NC9 investigation.

“Now is not the time,” Butler said.

WECT affiliate station WBTV reached out to some of the state lawmakers who voted in favor of the veto override Thursday, and reporter Nick Oschner said leaders told him they were not aware the court ruling was coming.

The Harris campaign told Oschner on Thursday night:

“Today the Court reinforced our position that the 9th District deserves to be represented in Congress on January 3rd. The State Board of Elections has yet to offer any justification as to why our race hasn’t been certified, and I am hopeful they will act swiftly in certifying this election and ensure the citizens in the 9th District will have a voice in the 116th Congress.”

Oschner tweeted Thursday night that the Harris campaign will ask the state board of elections to certify the NC9 race on Friday, and if the board declines, Harris will seek a ruling in federal court ordering the state to certify the election.

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