NCGOP lawyer says Cooper can't create interim elections board

by Rick Henderson, Editor-in-Chief of Carolina Journal and NC SPIN panelist, December 30, 2019.

In a letter sent Sunday to Gov. Roy Cooper’s office, the N.C. Republican Party said it won’t be “bullied” into adding members to an interim state elections board the party considers unconstitutional — and that a legal interpretation Cooper’s own attorney sought prevents the governor from picking a temporary board.

Cooper said he would appoint an interim elections board to take charge of the investigation into alleged absentee ballot irregularities in the 9th U.S. Congressional District. The Bipartisan State Board of Elections and Ethics Enforcement launched the 9th District probe, but a three-member Superior Court panel Thursday dissolved the elections board. The judges earlier declared the board unconstitutional, but let it stay in place until all election results were certified. Even though the 9th District and a handful of other races weren’t certified, the General Assembly created a new five-member State Board of Elections by overriding Cooper’s veto of House Bill 1029. Minutes after the General Assembly’s override, the judges disbanded the bipartisan elections board.

The new board will start operating Jan. 31. Until then, the existing elections board staff will continue handling procedural matters, including collecting information and potential evidence in the 9th District dispute. (Documents related to the investigation are posted here.)

Sunday’s letter is to Cooper’s General Counsel William McKinney from attorney John Lewis, a member of the former elections and ethics board. Lewis was hired by the NCGOP to represent the party in the 9th District dispute.

In the letter, Lewis said Cooper doesn’t have the constitutional authority to appoint an interim board and certainly can’t name a board if Republican Party Chairman Robin Hayes doesn’t submit any names to serve on it. (Hayes has said he won’t.)

Lewis cited a Nov. 28 letter from Deputy Attorney General Alexander Peters to McKinney. In it, Peters said when the bipartisan elections board disbanded, it could be replaced by the five-member elections board which existed before December 2016 “until the enactment of revised legislation.”

The revised legislation, Lewis said, is H.B. 1029. The law creating a new elections board makes Cooper’s plan to create a temporary board unnecessary and invalid.

Lewis also chided the governor for “trying to erode public confidence in our election system” by claiming the state Republican Party was impeding or failing to cooperate with the investigation. He said the state Republican Party would take legal action if Cooper tries to interfere with Hayes’ legal authority.

Carolina Journal has learned state Republicans are concerned Cooper may expect an interim board to take actions — perhaps convening a judicial-style hearing on the 9th District — even if it has only the three Democratic members the governor appoints. By law, the board needs four votes to force a new election, but it can perform other functions with a three-member quorum.

The dissolved elections board refused to certify Republican candidate Rev. Mark Harris the winner over Democrat Dan McCready in the 9th District. Harris led McCready by 905 votes in the unofficial count.

(UPDATE: McCready’s attorneys submitted a list of 48 witnesses Sunday to the State Board of Elections, anticipating an evidentiary hearing the dissolved board had scheduled for Jan. 11.)

Without a certificate of election, Harris’ status is uncertain. The 116th Congress convenes Thursday, Jan. 3. Incoming House Majority Leader Steny Hoyer, D-Maryland, has said the new Congress won’t seat Harris. The House may order its own investigation of the election.

State GOP Executive Director Dallas Woodhouse told CJ the allegations so far are based entirely on media reports and affidavits based largely on hearsay other unverified information.

“We are almost beyond 60 days [from the Nov. 6 election] and no legal evidence of wrongdoing has been offered. … The standard for overruling 280,000 legal votes is not that someone might have done something wrong.”

CJ has contacted the governor’s office for comment.

https://www.carolinajournal.com/news-article/based-on-ag-opinion/