Allegations of election fraud in a closely divided North Carolina House race are raising the prospect of a congressional inquiry that could leave the fate of the seat hanging in the balance for weeks, or even months.
Democratic House leaders this week said they may refuse to seat Republican Mark HarrisMark HarrisMeet the Democrats' last best hope of preserving a House majority Idaho GOP's power struggle underscores fissures in party Hillicon Valley — Presented by Ericsson — Facebook faces critics on kids' safety MORE, who holds a slim lead over Democrat Dan McCready, when the party takes over the majority on Jan. 3.
While Congress tends to defer to the states on election matters, Democratic members could decide to challenge the election results — regardless of whether North Carolina officials certify them — and prompt an investigation by the House Administration Committee. It also leaves the door open to a new election.
North Carolina still has jurisdiction over the 9th District race between Harris and McCready — one of the last uncalled contests of the 2018 midterm elections. Harris leads McCready by 905 votes in the race to replace outgoing incumbent Rep. Robert PittengerRobert Miller PittengerBottom Line North Carolina reporter says there could be 'new crop' of GOP candidates in 9th Congressional District race North Carolina board calls for new election in contested House race MORE (R-N.C.).
The North Carolina State Board of Elections is currently investigating the fraud allegations, which involve an unusually high number of absentee ballots requests in a rural county, many of which were never returned, and canvassers who illegally collected ballots from a number of voters.
The board has the authority to call for a new general election, though the body itself faces uncertainty about its own legal standing after it was deemed unconstitutional by a court ruling.
The board of elections will hold an evidentiary hearing by Dec. 21 into the claims, which also involve an alleged absentee ballot operation run by an independent contractor working for Harris’s campaign who paid people to illegally collect ballots.
Top House Democrats, including Minority Leader Nancy PelosiNancy PelosiPelosi suggests filibuster supporters 'dishonor' MLK's legacy on voting rights The Hill's Morning Report - Presented by Facebook - Democrats see victory in a voting rights defeat GOP senator knocks Biden for 'spreading things that are untrue' in voting rights speech MORE (Calif.) and Minority Whip Steny HoyerSteny Hamilton HoyerClyburn says he's worried about losing House, 'losing this democracy' GOP's McCarthy has little incentive to work with Jan. 6 panel Lobbying world MORE (Md.), have floated the possibility of refusing to seat Harris pending the outcome of the board's investigation, pointing out that the House is the ultimate arbiter of its members’ elections.
“The House still retains the right to decide who is seated,” Pelosi told reporters on Thursday. “Any member-elect can object to the seating or the swearing-in of another member-elect, and we’ll see how that goes.”
Hoyer also said that he planned to speak with Zoe LofgrenZoe Ellen LofgrenDemocrats skeptical of McConnell's offer to talk on election law Lawmakers discuss changes to Electoral Count Act after Jan. 6 GOP attempts balancing act: Condemn Jan. 6, but not Trump MORE (D-Calif.), who is expected to chair the House Administration Committee next year, about examining the allegations.
“The House ... has the authority over the propriety of the election,” he said. “This is a very substantial question [and] it ought to be resolved before we seat any member.”
Under the Federal Contested Elections Act (FCEA), a 1969 law that allows losing candidates to dispute the results of an election, McCready would have 30 days after the race is certified to bring a challenge before the House.
Under that law, McCready would not only have to show the House Administration Committee that fraud or voting irregularities occurred in the election, but that he would have otherwise won — a high burden of proof that few candidates have been able to meet.
Election certifications are typically seen by the House as evidence that an election was conducted fairly, and most cases brought under the law have been dismissed, according to a 2011 report by the Congressional Research Service (CRS).
If McCready were to bring that challenge prior to Jan. 3, when the 116th Congress is set to begin, Harris could be asked to step aside while other representative-elects are sworn in, effectively putting a hold on his membership in the House.
Only 15 member-elects have been asked to “step aside” from election contests considered by the House between 1933 and 2011, according to the CRS report.
It’s not clear whether McCready would bring such a challenge. His campaign did not respond to a request for comment on the matter.
But in a video statement on Thursday, McCready withdrew his prior concession and called on Harris to “tell us exactly what he knew and when he knew it."
Harris’s campaign also did not respond to The Hill’s request for comment.
Another avenue for challenging an election — which is considered far less common than a challenge through FCEA — is if a member-elect objects on the House floor to a fellow representative-elect being seated.
Any of those member-elects can make that objection on the first day of the new Congress before the new representatives are sworn into office by the Speaker.
The entire House would then vote on a resolution with several potential scenarios, including having the member-elect whose standing is in dispute provisionally seated as the race is under investigation, or to not seat that person at all.
If the resolution to not seat a member is adopted, it revokes the state’s certification of the election results.
That would then kick off an investigation into the election by the House Administration Committee. The committee can investigate through a number of methods. Among them: impounding election records and ballots, conducting a recount, physically reviewing documents, and interviewing and subpoenaing witnesses.
The committee can hold hearings in both Washington, D.C. and in the North Carolina district, and both Harris and McCready could be called to testify.
The House Administration Committee would then report its investigation to the House and can make recommendations.
The panel doesn’t have the authority to actually mandate what actions the House takes, but it can recommend seating a member if it determines he or she received a “majority of valid votes cast.”
The determination of what "valid" means is up to the committee. It can also recommend a recount.
The panel can also recommend a dismissal of the challenge to seat a member-elect if “any fraud or number of fraudulent ballots doesn’t meet the threshold to change the outcome of the election.”
One example was the 1996 contested election between former Rep. Loretta SanchezLoretta L. SanchezIn her three elections, Kamala Harris has learned to adapt — and win Kamala Harris is Donald Trump's worst nightmare Disputed North Carolina race raises prospect of congressional probe MORE (D-Calif.) and then-incumbent Bob Dornan (R).
Dornan lost by nearly 1,000 votes, but contested the election because of allegations that a large number of votes came from noncitizens.
A congressional probe found that a number of them were illegally cast, but not enough to overturn the results, ultimately bringing the investigation to an end and seating Sanchez.
The House Administration Committee can also recommend declaring a seat vacant, in which case a new election would be held. That would trigger a new filing process as well as new primaries and general elections.
Any recommendation from the committee would need to be approved by a simple majority of House members. When the 116th Congress begins in January, Democrats will likely hold a more than 18-seat majority in the chamber.
To be sure, a determination by the House to hold a new election in North Carolina’s 9th District would be highly unusual. Pelosi acknowledged on Thursday that calling for a new election would be an “extraordinary step” by the chamber.
Even if the seat is left vacant, outgoing Pittenger’s staff would be kept on the House payroll to handle constituent services in the absence of a new representative.
Whether a new election is on the horizon remains to be seen. The calls for one have so far been led by Democrats. But some Republicans have appeared increasingly open to the idea of a new election amid mounting doubts about the race.
Dallas Woodhouse, the executive director of North Carolina Republican Party, told The Hill earlier this week that Republicans would be open to a new election if the state Board of Elections “can show a substantial likelihood” that the fraud claims could have changed the outcome of the election.
“If they hold a public hearing and simply can’t determine one way or the other, then we would not oppose a short delay on the question of certification until they have more answers,” Woodhouse said. “We are horrified by all of this.”
Harris himself issued a statement on Friday opening the door to a new election. If the state investigation uncovers evidence of fraud “on either side” that would alter the outcome, the Republican pastor said officials should call another election.
“The integrity of our electoral process is the heart of our democracy and we must protect it,” Harris said in the video statement. “I’m hopeful that this process will ultimately result in the certification of my election to Congress before the next House session begins.”