‘I don’t know where this number comes from. They have a number of affidavits they’ve filed that are based on hearsay and innuendo…’
(Brian Murphy and Jim Morrill, The Charlotte Observer) The newly re-constituted five-member North Carolina State Board of Elections will meet Monday and Tuesday in Raleigh to decide the fate of the election in North Carolina‘s 9th Congressional District.
In preparation, amid accusations of voter fraud, the Democratic challenger, trailing after the Nov. 6 election by just over 900 votes, is seeking to pad the number of disputed votes involved enough to trigger a new election by suggesting that un-returned absentee ballots favoring him may have been illegally discarded.
The race between Republican Mark Harris and Democrat Dan McCready is the final one to be decided from last November’s elections but was delayed after a partisan appointee to the previous board raised last-minute allegations of “irregularities” and “taint” during the certification process. Despite the previous board’s dissolution, its permanent staff has been investigating for months.
Ex-board member Joshua Malcolm, who raised the initial accusations, would go on to become the chair of the NCSBE in November and December, before a court ruled that the board had unconstitutionally extended itself past its charter while dragging out the fraud investigation, which state Republican officials criticized as a fishing expedition.
The NCGOP also pointed to the suspicious associations swirling between Malcolm and the election officials in Bladen County who were at the center of the storm over accusations of “ballot harvesting,” when a third-party collects and sends absentee ballots, increasing the likelihood of tampering. Malcolm was not among the returning board members who will be involved with the hearing.
A Disputed Tally
Although the practice of ballot-harvesting recently was legalized in California as a legitimate get-out-the-vote method, volunteers in North Carolina may only sign up potential voters to receive a clean absentee ballot and may act as a witness; they may not handle or collect the completed ballots.
McCready, who trailed Harris by 905 votes after the Nov. 6 election, filed documents with the NCSBE that ballot harvesting by a Bladen County political operative “tainted” more ballots than the current margin. McCready wants the board to call for a new election.
In documents filed with the board, Harris is asking the group to certify the results and send him to Congress where the 9th District has been without a representative since January. He previously sought to have the courts certify the election in the absence of the NCSBE’s ability to perform its duty, but was unsuccessful.
The previous nine-member state board of elections twice declined to certify the results of the election, citing voting irregularities with mail-in absentee ballots in Bladen and Robeson counties.
However, Harris—who acknowledged that he did not know whether independent contractor McRae Dowless had broken the law—has long maintained that the number of absentee ballots involved was not enough to change the result.
There were 684 mail-in absentee ballots cast in Bladen County—420 for Harris, 258 for McCready and six for Libertarian Party candidate Jeff Scott. There were 680 mail-in absentee ballots cast in Robeson County—403 for McCready, 259 for Harris and 18 for Scott.
In Bladen, Harris’ share of mail-in absentee votes was 41 percentage points higher than the number of registered Republicans voting, according to McCready’s campaign.
The McCready campaign argues that the number of ballots affected by Dowless—a longtime Bladen County political operative and elected official who was hired at Harris’ direction to conduct get-out-the-vote work—could be as high as 2,500, citing the 1,364 absentee-by-mail ballots cast in Bladen and Robeson and the 1,169 absentee-by-mail ballots sent to voters that were not returned and who did not vote in another way.
The Harris campaign, however, disputed some of McCready’s mathematical tabulations, pointing out that Harris received 679 mail-in absentee votes in the two counties—less than the 905-vote margin.
“I don’t know where this number comes from,” Harris attorney David Freedman said. “They have a number of affidavits they’ve filed that are based on hearsay and innuendo. I’ve seen no evidence of ballots being disposed of improperly.”
The decision likely will come down to how many of those un-returned ballots Dowless may have handled and whether witnesses observed or could credibly assert that he discarded the disputed ones.
Longstanding Issues on Both Sides
There is little evidence to suggest that Dowelss had or sought access to the voters in Robeson County. However, both of the counties involved have been impugned by past allegations of fraud.
In fact, Dowless, who lost a municipal race in the same election, issued a formal complaint that the Bladen County Improvement Association and its political-action arm had been harvesting ballots for the Democrats.
Malcolm, a member of the state elections board and a close associate of Jens Lutz—one of the Bladen County elections board members, who had been a former business partner of Dowless’s—moved to dismiss the complaint citing a lack of evidence.
Dowless, whose work in the 2016 election also led to multiple ongoing investigations, is alleged to have paid workers to collect requests for mail-in absentee ballots, which is legal, and to have paid workers to collect completed or incomplete mail-in absentee ballots, which is illegal.
“While only Dowless may ever know the breadth of his scheme, the evidence is conclusive: Dowless’ operation tainted a far greater number of ballots than the apparent margin in the CD-9 race, and he was aided and abetted by elections officials along the way,” the McCready campaign said in its brief.
Dowless himself turned in requests for 590 mail-in absentee ballots in Bladen County, according to data released by the state board. McCready’s legal brief says that Dowless and his associates made “well over 700” requests in Bladen County.
As for the unreturned ballots, the McCready campaign argues their rate was “exceedingly high” in Bladen and Robeson and claims that Dowless and his associates discarded ballots they had collected.
The McCready campaign also said that Bladen County election officials released early vote totals to Dowless, gave him access to unredacted ballot request forms and provided him regular reports with voter information connected to mail-in absentee ballots.
“The math submitted in the brief filed by McCready’s lawyers is that of pipe dreams. They frequently refer to disputed affidavits containing hearsay to back up their statistics,” said Dallas Woodhouse, executive director of the North Carolina Republican Party, in a statement to the media.
The Search for Truth
McCready’s argument—that more than 905 ballots were affected—seems designed to rebut claims by the Harris campaign that the state board should certify his victory because there are not enough ballots to overcome the current deficit.
“Irregularity or misconduct alone does not mean a protest moves forward. The State Board must decide whether the irregularity is sufficient to cast doubt on the results of the election,” Harris’ attorneys wrote in their filing to the board. “If irregularity or misconduct—no matter its nature or egregiousness—does not cast doubt on the result, the protest should be dismissed.”
The Harris campaign has denied knowing about Dowless’ criminal history or about allegations of improper actions in 2016 until news reports after the election.
The previous nine-member board was disbanded in late December due to a separate legal challenge, but staff continued its investigation into the election results. The new board, made up of three Democrats and two Republicans, was appointed Jan. 31. Members got their first in-depth look at the evidence gathered by staff last week.
“They’ll be a number of things that need to be explained,” said board chairman Bob Cordle, a retired attorney from Charlotte. “What we want is the truth to come out.”
Under state law, the board can call for a new election under four scenarios. Three of them require “a sufficient number of votes to change the outcome of the election” to be impacted. The fourth criteria says a new election can be called if “irregularities or improprieties occurred to such an extent that they taint the results of the entire election and cast doubt on its fairness.”
The board faces two likely choices—certify Harris’ apparent victory or call for a new election. Either decision seemingly will require a crossover vote, that is, one Republican voting with Democrats or vice versa. Certification requires three votes. A new election requires four.
Anticipating a partisan deadlock that leaves the board short of the votes needed for either outcome, both candidates presented their preferred next step.
Harris’ campaign said the board is required to certify the election within 10 days of a failed vote on calling for a new election, which it says ends the board’s protest.
“Simply put, the State Board may not withhold a Certificate of Election indefinitely. The election code forbids it,” Harris’ attorneys write.
McCready asked that in the event of a 3-2 vote to call for a new election, the board send its “findings of fact, its record of proceedings, and its investigatory records to the U.S. House of Representatives” and wait to make a determination until the House decides if it will review the matter.
The House of Representatives, which is controlled by Democrats, has final say on seating its members. The chairwoman of the House Administration Committee, which has jurisdiction in the matter, wrote a letter in January asking the state board to preserve its evidence and materials.
“We can only get involved when the state has exhausted all of its remedies,” said Rep. Marcia Fudge, an Ohio Democrat. “At some point, probably, we will.”
(Murphy reported from Washington.)
(c)2019 The Charlotte Observer (Charlotte, N.C.). Distributed by Tribune Content Agency, LLC.