House Speaker Tim Moore said in a podcast interview posted Tuesday it would be unlikely that the General Assembly would attempt to determine the outcome of the close contest between Gov. Pat McCrory and Attorney General Roy Cooper.
“It is an absolute last resort for the General Assembly to be involved,” Moore, a Kings Mountain Republican, said in the interview on “What Matters in North Carolina,” a podcast on the Freedom Action Network website.
There has been speculation that the computer problems that delayed counting some of the votes in Durham County on Election Day could set the stage for legislative intervention. State law allows the General Assembly to decide contested elections for the 10 Council of State offices, which includes the governor, and also for legislators.
The provision has only been used once before in modern history, when lawmakers named June Atkinson state superintendent of public instruction over Bill Fletcher in 2005, in a process that took nine months to resolve. At the time, the legislature was controlled by Democrats; Atkinson was a Democrat and Fletcher was a Republican.
But the main issue then was whether some 11,000 provisional ballots should be counted even though they were cast in precincts outside of where the voters lived. This time the question is whether computer problems in Durham County led to errors in the vote count that could change the outcome. On Tuesday, the Durham elections board chairman, a Republican, said the board has not seen evidence of any problems.
Statewide, Cooper is more than 5,000 votes ahead of McCrory. About 60,000 provisional ballots are being reviewed around the state this week; more than half of them could be ineligible, based on past experience. Democratic voters have turned in provisional ballots at a greater rate than Republicans or unaffiliated voters, which makes it less likely that McCrory can close the gap.
McCrory can call for a recount if the margin between the two candidates remains less than 10,000 votes.
Senate Democratic Leader Dan Blue issued a statement on Tuesday afternoon saying Cooper had clearly won.
“It would be unprecedented and undemocratic for the state legislature to overturn the will of the people,” Blue said. “Make no mistake, this election has been decided by the voters and we will not allow Gov. McCrory or the GOP-controlled legislature to overthrow those results or undermine democracy.”
McCrory’s campaign spokesman called the idea of legislative intervention “a wild hypothetical” floated by the news media, adding that his office has received many reports of voting irregularities around the state.
“The integrity of the election and the sanctity of the ballot box is a very important issue that we are taking seriously even if Roy Cooper won’t, and our lawyers are working through the established process to ensure that every person was afforded one vote and that votes are properly counted,” spokesman Ricky Diaz said in an email.
Here’s how it could end up in the General Assembly, according to a 2007 analysis by Robert P. Joyce, a public law and government professor in the UNC School of Government.
▪ The Durham County Board of Elections and the State Board of Elections would have to find that there was nothing wrong with the way the election was conducted, or if there was a problem that it didn’t call the results into question.
▪ The candidate would have to file with the clerk of the House a notice of intent to contest the election. The notice must be based on the grounds that the opponent is ineligible or unqualified for the office, or that there was an error in the conduct or counting of votes. The opponent can file an answer to the notice.
▪ That triggers a series of actions by the legislature, beginning with depositions and other preparations for special proceedings. If the candidate still wants to proceed then he or she can file a petition and the opponent can file a reply.
▪ A committee is then appointed with five members selected by the Senate leader and five by the House speaker; no more than three of each five from the same political party. The committee would be able to investigate, hold hearings, compel testimony or order a recount.
▪ The committee makes a recommendation to the full legislature, which then determines the outcome by a majority of those voting. If the lawmakers can’t determine which candidate received the most votes, then it can order a new election.
Fletcher also sued over the legality of out-of-precinct provisional voting, and that case went to the N.C. Supreme Court, which ruled the votes were improper. The General Assembly took action to not apply the court decision to the 2004 election, approve the use of out-of-precinct provisional ballots and establish a new procedure for determining contested elections.
Joyce concluded in his report that candidates will be tempted to overuse the process.
“North Carolinians should hope that future elections do not routinely turn into partisan fights or manipulations that undermine the vote of the people in the general election,” Joyce wrote.