Could NC lawmakers choose the next governor?

A contested state superintendent of public instruction race in 2004 may have laid out how Gov. Pat McCrory could appeal his election loss to the Republican-controlled General Assembly.

Posted 4:44 p.m. Nov 14, 2016 — Updated 11:55 p.m. Nov 15, 2016

Mark Binker

and

Laura Leslie

RALEIGH, N.C. — It may be an outside possibility, but the ghosts of a contested election for school superintendent in 2004 could haunt this year's gubernatorial race, allowing the Republican-led legislature to settle the contest between Republican Gov. Pat McCrory and Democrat Roy Cooper, the state's attorney general.

Over the weekend, several political operatives and others with interest in the election began circulating a 2007 article by Robert Joyce of the University of North Carolina School of Government. That article recapped the 2004 contest between June Atkinson, a Democrat, and Bill Fletcher, a Republican, and sketched out the process that eventually allowed the General Assembly to decide the race.

The question now becomes whether the same process, created by a legislature controlled by Democrats, could be used to put the governor's race in the hands of Republican lawmakers.

"You've got to have some legitimate grounds for saying you actually won the race," former state Supreme Court Justice Bob Orr said Monday when asked if McCrory had a path to make such an appeal.

But the short answer, Orr said, was "yes," albeit a qualified one.

First a big caveat: It's entirely possible that, in the coming weeks, local boards of elections and the State Board of Election are able to settle all contests to both sides' satisfaction. If the state board can certify the results without challenge, then the discussion involving Joyce's article is moot.

However, if there is a prolonged contest, attention will almost certainly focus on Durham, where the county Board of Elections was late in reporting roughly 90,000 early votes on election night. The late-night report took McCrory out of the lead and gave Cooper an advantage of fewer than 5,000 votes out 4.7 million cast. Cooper declared victory, but McCrory almost immediately raised questions about the propriety of Durham's election administration and said he wanted to let the process play out before conceding.

The Durham County Board of Elections is scheduled to meet on Wednesday to hear a protest from a local Republican voter who is also the state Republican Party's general counsel.

Neither spokesmen for McCrory's nor Cooper's campaigns immediately returned emails seeking comment for this story. Joyce could not immediately be reached for comment.

"Well, people would have to accept it if that’s what procedure that you’re supposed to follow is," said Rep. Ted Davis, R-New Hanover. He said if a candidate were to turn to the General Assembly, the heads of the House and Senate would choose a bicameral committee to vet the case.

Sen. Ben Clark, D-Cumberland, said that he didn't believe the case would reach lawmakers.

"The people need to remember that the state board of elections was appointed by the governor," Clark said, noting that two of three appointees on every county's board of election is a GOP appointee. "We have complete confidence that the boards of elections across our state have done their job and will continue to do their job."

2004 a first

A contested election for any office established by Article III of this Constitution shall be determined by joint ballot of both houses of the General Assembly in the manner prescribed by law," reads a constitutional provision first drafted in 1835 when voters were given the right to choose the governor directly. Some semblance of that provision has remained through two other drafts of the constitution, the most recent one laid down in 1971.

Article III governs the state's ten statewide elected offices, including the governor, lieutenant governor and attorney general.

In 2004, there were questions over whether it was proper to count ballots for statewide races that were not cast in a voter's proper precinct. At the same time, voting equipment in Carteret County lost more than 4,500 votes when it malfunctioned.

"There was an actual situation where you couldn't figure things out," said Gerry Cohen, a lawyer who worked as the head of bill drafting for the General Assembly during the 2004 episode but who is now in private practice.

In this year's gubernatorial race, Cohen said, no votes have been lost. The issue at hand, he said, is simply ensuring that they're counted correctly.

Like Orr, Cohen said the question may come down to what the meaning of "contested" is in the constitutional provision and how widely lawmakers are willing to interpret it.

Orr noted that the legislature essentially built its process for settling the election on the fly. The constitutional provision allowing the General Assembly to settle Council of State contests took many by surprise in 2004, and lawmakers had to build an entirely new structure to hear Atkinson's case.

"I can remember in 2004 and 2005 when that first popped up, and I was supposed to be the knowledgeable expert on the constitution and had to ask, 'It says what?'" Orr said.

In his 2007 article, Joyce argued that future lawmakers could be inclined to use their power for partisan advantage, and he raised questions over whether their decisions could be appealed to the courts. Those questions have not been answered in the meantime.

Joyce said Monday that in addition to the constitutional provision, lawmakers in 2004 crafted a state law giving those in Council of State races a right to appeal to lawmakers after a final decision had been made by the State Board of Elections.

"This is all new ground," he said, noting that the Atkinson case was the only time in more than 100 years the provision had ever been triggered. Asked whether the General Assembly would have any limits on deciding whether to take up a case or how to handle it based on how people voted, Joyce said, "The short answer to your question is I don't know."

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