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Group says NC House winner shouldn't be seated

Posted January 8, 2019 6:06 p.m. EST
Updated January 8, 2019 7:41 p.m. EST

— A right-leaning advocacy group has called on the General Assembly not to seat the winner of a close House election in Mecklenburg County when the new legislative session begins Wednesday.

The North Carolina Values Coalition said Tuesday that it combed through absentee ballot records in the House District 103 race, and there are enough votes in question to throw the race to outgoing Rep. Bill Brawley, R-Mecklenburg, who lost to Democrat Rachel Hunt by 68 votes.

The lion's share of votes the group targeted are valid, though, under State Board of Elections rules. The group questions those rules.

The coalition said it found some 300 votes in the district where the dates witnesses signed absentee ballot envelopes didn't match the dates of voter signatures, throwing into question whether anyone actually witnessed those votes as required by law.

Given that Hunt won absentee ballots in her race by 480 votes, Values Coalition Executive Director Tami Fitzgerald said the improperly marked votes were likely enough to swing the election.

The House district lies completely within the 9th Congressional District, where results have been held up by a state investigation into absentee ballots, and Fitzgerald said throwing out these ballots would likely increase Republican Mark Harris' margin in that race.

Elections board spokesman Patrick Gannon said the mismatched dates the Values Coalition called attention to "may suggest a good starting point for an investigation," but they're not enough to throw out votes.

State law requires two witnesses or a notary public to sign off on mail-in ballots, but it doesn't require them to date those signatures. The state board added date lines to the forms after the 2016 elections, Gannon said, as a way to identify potential fraud.

The law doesn't mention them at all, and last April, the state board told county boards of election to bear that in mind when judging whether ballots are valid and to consider that "a witness may have simply written the wrong date."

That policy "throws every close election across the state into question," the Values Coalition said in a report prepared ahead of a Tuesday afternoon press conference. Fitzgerald accused the board of malfeasance.

"It is clear that the board mishandled these two elections and who knows how many more," she said.

In an email, Gannon said the agency welcomes "all credible evidence of alleged misconduct," but that "today’s characterizations of this agency’s efforts miss the mark." The North Carolina Democratic Party called the Values Coalition's effort "a desperate, last-minute attempt to deny a seat to a lawfully-elected representative."

Hunt, who is former Gov. Jim Hunt's daughter, did not return a message seeking comment Tuesday. Neither did Brawley. Fitzgerald said she called him Tuesday morning and that he was supportive.

A spokesman for House Speaker Tim Moore didn't respond to a request for comment on whether House leadership would consider holding up Hunt's seating when the General Assembly comes back into session. The state constitution gives both legislative chambers the power to judge "the qualifications and elections of its own members," much like the U.S. Congress, but it would be extraordinary for the House to refuse to seat someone after an election victory was certified.

Gerry Cohen, a long-time legislative attorney before retiring to private practice in 2014, said he couldn't recall a modern example of a North Carolina legislator not being seated.

There has been controversy, though. In the early 1980s, residency questions dogged a Republican state senator in Mecklenburg County, but the Democratic Senate majority declined to move forward, Cohen said.

Harris' election to the 9th Congressional District was never certified by the State Board of Elections, and the Democratic majority in Washington, D.C., has indicated they won't seat him until that happens. Fitzgerald's group began its inquiry by looking for irregularities in the 9th District, and it turned to House District 103 in part because of Hunt's narrow win there.

In addition to the mismatched dates, the inquiry turned up at least five votes where the voter didn't actually live in the district. Several of those were cast by young people living away from home whose parents had lived in the district but then moved.

Voting in a district you don't live in is a potential felony, though the law generally requires people to do so knowingly. Cohen said a college student whose parents move out of district may still be considered a resident of that district in some cases. He used the example of a Chapel Hill student whose parents move from Mecklenburg County to Colorado.

"You'd have to look at the specific facts," Cohen said. "If the student actually at one point lived in District 103 ... the student's residency doesn't change to Colorado automatically."

Mismatched dates on witness signatures are not uncommon. The state has released absentee ballot envelopes from Robeson and Bladen counties as part of its investigation into the 9th District election, and there are a number of mismatched dates there.

Signatures in those counties also indicate that the same people witnessed dozens of ballots, which is not illegal but is a red flag for investigators looking for evidence of a door-to-door operation to collect ballots, which is against the law. The Values Coalition said it found no such pattern in House District 103.

Mecklenburg County Elections Director Michael Dickerson called the coalition's report "good work" that "keeps you on your toes." But he said the mismatched dates shouldn't invalidate votes.

"Had the General Assembly been concerned about it, they would have put date into (the law), too," Dickerson said.

At any rate, Cohen and Dickerson both said it's too late to challenge any of the votes the coalition flagged.

"That ship has sailed," Dickerson said.