A Superior Court judge in North Carolina has set a hearing in a lawsuit filed by Republican candidate Mark Harris asking the court to force the State Board of Elections to certify the results of the state's 9th Congressional District election -- before the board completes its investigation into potential fraud in the race.
The hearing is set for January 22.
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There is still no clear resolution to the controversy over the results in North Carolina's 9th District more than two months after Election Day.
Harris leads the race by 905 votes over Democrat Dan McCready, but there are serious questions surrounding an absentee ballot operation led by a political consultant he hired.
In court filings Monday, Harris' campaign argued that the board has had more than ample opportunity to conduct its investigation and release its findings. The campaign claims the delay has led to a disenfranchisement of some 700,000 constituents in the 9th District, who are currently without a representative.
The board had been set to hold an evidentiary hearing January 11 to go over the evidence collected in the case, but in a surprise ruling at the end of December a court ordered the board to dissolve as part of a legal battle over its composition. A prior decision had ruled the board unconstitutional, but the same court gave the board a temporary reprieve till December 28 to complete the investigation. The board's inability to reach a conclusion before it dissolved gave Harris and other North Carolina Republicans an opening to claim he should be seated.
"There have been 50 days that have elapsed since this flawed process began. No evidence sufficient to overturn the election has been produced," said Robin Hayes, chairman of the North Carolina Republican Party, at a press event on Tuesday.
In their own court filings Monday, the McCready campaign and the State Board of Elections disagreed.
The board, which is now operating with only professional staff, argues that it is obligated to withhold certifying a winner until its investigation is complete. Its lawyers argue that North Carolina law sets no time limit on such an investigation. The board cannot certify a winner without appointed officers in place, but lawyers for Harris argue that the court has the authority to empower the board's executive director to do so.
The Democrats, meanwhile, countered that Harris himself is partly responsible for the delay. They point to a letter sent by the board's former chairman Joshua Malcolm to the Harris campaign, in which Malcolm complained that Harris refused to turn over more than 140,000 documents that could be connected to the investigation. And while Republicans continue to argue there is not enough evidence of fraud, Democrats believe there is plenty, most of it centering on Leslie McCrae Dowless, the Bladen County political operative tasked with running the Harris absentee ballot operation.
"Harris continues to tell reporters that, despite all the evidence to the contrary, ... Dowless is innocent and asks this court -- with the support of the North Carolina Republican Party -- to rubber stamp the results of the election with which Dowless and his associates are alleged to have interfered on Harris's behalf," Democratic lawyers wrote in their brief.
Dowless, the central figure in this drama, has yet to speak to authorities and refuses to cooperate with the State Board of Elections. His work on behalf of candidates in North Carolina has gotten even more scrutiny since it was revealed that the board had referred his conduct in the 2016 campaign to the US Justice Department. The Justice Department took no action, however, and Dowless was not prevented from participating in the 2018 election.
Harris has said he hired Dowless based on the operative's performance turning out a remarkable number of absentee votes for a third-party candidate during Harris' failed attempt to run for Congress in 2016.
Dowless' attorney, Cynthia Adams Singletary, released a statement last month saying he "has not violated any State or Federal campaign laws and current ongoing investigations will prove the same."
"All speculation is premature and wholly unwarranted," she wrote.
The Superior Court judge tasked with ruling in the case has not given a timeline for deciding. While the judge deliberates whether to require the board to certify the results without completing its investigation, the next big date on the calendar is January 31. That is when Gov. Roy Cooper will have the opportunity to appoint new members of the Board of Elections, and the board then will have the constitutional authority once again to certify the results or call for a new election.
The question is whether the judge could hand down a decision before the new board takes shape and whether that could lead to more court battles down the road. Regardless, a resolution does not appear imminent and it will likely be some time before anyone is seated as a member of Congress from North Carolina's 9th District.
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