Cooper camp: Lead in governor's race is insurmountable
Posted November 27, 2016
Updated November 28, 2016
Raleigh, N.C. — Members of the State Board of Elections say they can't hear Gov. Pat McCrory's appeal of a recount request denied by Durham County's three-member elections panel until the local board produces certain legal documents.
"It sounds like Durham really is the crux of this whole thing if the (state) board takes this thing up," said Joshua Malcolm, a Democratic member of the state board.
Board members will meet again Wednesday, presuming the Durham County Board of Elections produces a legal order codifying its actions from 10 days ago and copies of evidence heard during the hearing.
As counties have tallied their late absentee and provisional ballots, McCrory, a Republican, has seen the gap by which he trails Democratic challenger Roy Cooper grow from about 5,000 on Election Day to about 8,000 votes out of 4.5 million cast.
By Monday, all but 13 of the 100 counties had finalized their totals. Although the McCrory campaign and its allies have raised a number of challenges to the election process in more than 50 counties, Cooper campaign attorney Marc Elias says there is no path for McCrory to catch up.
While the state board is investigating one issue in Bladen County, many of the protests have been dismissed, and none has produced evidence of a systematic ballot-rigging effort. A handful of ballots have been thrown out in certain extreme cases, such as when a voter cast a ballot early and then died before Election Day. State board members have ordered local boards to forge ahead with reporting results without formally acting on other similarly contested ballots until they can determine whether there are enough votes at issue to make a difference in the election's outcome. As of right now, there are far fewer challenged votes than what McCrory needs to make up the margin.
The Durham County case is the most important because it involves more than 90,000 early votes that were reported late in the evening on Election Night. Those votes vaulted Cooper into the lead, and Republicans have raised questions about their tabulation and reporting due to problems with Durham County's voting equipment. The pending appeal from the GOP asks the state to double-check those results.
In a news release Saturday, McCrory said he would drop a request for a statewide recount if the state board were to order a recount of Durham County's votes and find they were reported correctly. But board members said on the call that they had not seen anything in writing from the campaign with regard to that offer and asked their general counsel, Joshua Lawson, if any such offer had been formally made.
"I'm not aware of anything that's been filed," Lawson said.
He added that Thomas Stark, the Republican lawyer and general counsel for the state GOP who has pressed the Durham County recount issue, said he could not speak for the McCrory campaign on that issue. The McCrory release says nothing about dropping challenges to particular voters, only the campaign's request that all 100 counties tally their votes a second time.
The only official action board members took Sunday was to appoint lawyers from Raleigh's Brooks Pierce law firm to represent the state board in litigation revolving around the governors' race. Those lawyers will apparently be used in a hearing in federal court Friday over a challenge to certain early voters from the conservative Civitas Institute.