Harris Campaign Responds To Postponement Of Upcoming Hearing On 9th District Investigation

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The NC State Board of Elections says they’re continuing to investigate irregularities in the 9th District congressional race between (R) Mark Harris and (D) Dan McCready, and will postpone the hearing previously scheduled for January 11th.

The State Board made the following comments in a release Wednesday afternoon:

Only seated State Board members can hold evidentiary hearings, certify elections, order new elections, or hear election protests. Accordingly, the hearing previously scheduled for January 11 is postponed. All subpoenas remain legally effective.

“State Board staff will continue to interview witnesses and pursue leads as part of this investigation,” said Kim Westbrook Strach, executive director of the State Board of Elections. “This agency remains steadfast in its obligation to ensure confidence in the elections process.”

The postponement comes after Governor Cooper’s office says Republicans have failed to provide a list of nominees to the State Board of Elections. Cooper’s office says Democrats provided their list, but the GOP has reportedly “refused to provide any names and has discouraged Republicans from accepting any appointment to the Board.”

Cooper says he wants to ensure that the Board remains fair and bipartisan, so he will not appoint a Board with only members selected by the Democratic Party.

The Harris campaign sent the following release after today’s announcement:

As a result of the announcement that the January 11 hearing of the State Board of Elections cannot go forward, a Petition for a Writ of Mandamus will be filed tomorrow morning in Wake County Superior Court by Congressman-Elect Mark Harris. The Petition asks the Wake County Superior Court to certify the results of the 9th Congressional District election immediately, while still allowing for a full and thorough investigation of any concerns or irregularities that the new State Board taking office under Session Law 2018-146 may have.

The State Board of Elections has not disclosed any information to suggest that the votes in question in the Board staff’s investigation are sufficient in number to change the outcome of the 9th Congressional District election. The prior State Board had been operating with a number of votes in mind based on the fact that certification was not allowed for races with margins of victory of 572 or less, but races with margins of victory equal to or above 1,388 were certified. Either the prior State Board was not being transparent by failing to affirmatively state the number of votes in question to show that there are, in fact, enough votes in question to change the outcome of the 9th Congressional District election, or the votes in question are not sufficient to change the outcome and the prior State Board did not want to acknowledge this fact. A full investigation of any voting irregularities uncovered by the State Board staff can be conducted, but when the number of votes in question is not enough to change the outcome of the 9th Congressional District election, the results of the 9th Congressional District election should be certified immediately.

“We had no choice but to take this action at this time,” David Freedman, attorney for Mark Harris, said. “There is uncertainty of when a new State Board of Elections will be operational, when a new State Board of Elections may act, and whether a new State Board of Elections will continue to drag this out unnecessarily and outside of any statutory procedure, as the prior State Board had done.”

Freedman continued, “It appears the three-judge panel in Cooper v. Berger last week had become frustrated beyond measure with the prior leadership of the unconstitutional and now-enjoined prior State Board. The prior State Board was not following the timetable for continued operation by the three-judge panel, so the three-judge panel stopped them. Now, we are in limbo, with no one able to act at this time.”

Harris filed an Emergency Petition to Certify Election on December 28 before the prior State Board was enjoined from acting. By letter from the outgoing Chairman of the State Board, the State Board indicated that the Emergency Petition was not being considered before the noon deadline that enjoined the prior State Board from acting.

Prior Wake County Superior Court decisions have provided that the inability of the State Board of Elections to act can be viewed as “effectively denials” of prior petitions. Appeals of denials must be taken to Wake County Superior Court within 10 days. This explains why the matter is filed now and why the matter is filed in state court instead of federal court.

“We do not view the inability of the State Board to act as a denial of Dr. Harris’ pending petition for certification of the results of the 9th Congressional District election because a new State Board is established by Session Law 2018-146. We hope, and expect, the new State Board to certify the results of the 9th Congressional District election as soon as the new State Board is able to act. However, we do not want to waive any rights by not filing this action at this time,” Freedman said.

Until Mark Harris is certified as the winner of the 9th Congressional District election and sworn-in to the United States House of Representatives, the citizens of the 9th Congressional District are without a congressional representative. No field offices can be operational to assist citizens, no new staff can be hired to resolve citizen concerns, and constituent services are effectively halted. These unfortunate outcomes are the result of the prior State Board’s delay in acting.

“Congressman-Elect Harris is deeply concerned that the citizens of the 9th District get the support they need, and he asks the constituents to contact Senator Tillis’ office or Senator Burr’s office until Congressman-Elect Harris is sworn into office,” Jason Williams, campaign manager for the Mark Harris for Congress Committee, said.

“Citizens in the 9th Congressional District should not be without a sitting Congressman,” Williams added. “Congress re-convenes on January 3, and Dr. Harris should be sworn-in immediately.”

No candidate or voter filed any protest in the 9th District Congressional election. The prior, unconstitutionally-formed State Board, on its own initiative, established a process for proceedings that was outside of any statutory framework and that followed a timetable not allowed by law and not in accord with a schedule allowed by a three-judge panel of Superior Court judges. The State Board must certify election results within the time established by statute, but the State Board is authorized to conduct investigations at any time.

“Dr. Harris still supports a full and complete investigation of everything that transpired in the 2018 election,” Williams concluded. “Any issues in these same counties from the 2016 election also can be part of this investigation. However, Governor Cooper’s election certification from the 2016 election was not delayed into the new year when issues arose in 2016, and it should not delay Dr. Harris’ election certification any longer either.”  

Governor Cooper says the January 11th hearing will be postponed until members from both parties can be appointed to the Board.

Original Story (Dec. 17, 2018):

CHARLOTTE, NC – The State Board of Elections and Ethics Enforcement will hear testimony and evidence in connection with the investigation into irregularities and alleged misconduct in North Carolina’s 9th Congressional District.

According to documents released today by the State Board, the hearing will be January 11th at 10am in Raleigh.

The results of the race between Republican Mark Harris and Democrat Dan McCready have not been certified by the State Board. Harris received 905 more votes than McCready in November, but accusations of illegal absentee ballot collection on behalf of Mr. Harris and other absentee ballot irregularities have led to this point.

To read the order of proceedings CLICK HERE