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Sunday Special: Everything you need to know about Monday’s Board of Elections hearing

February 17th, 2019

At 10 a.m. Monday, the North Carolina Board of Elections is scheduled to begin an evidentiary hearing into possible ballot irregularities in the 9th Congressional District last November.

Because of those irregularities, the board has yet to certify results from the November election, leaving the 9th District without a representative in the U.S. House.

Here’s are answers to some common questions about the hearing:

How did we get here?

After the November election, the State Board of Elections looked into unusual absentee ballot trends in Bladen and Robeson counties, which had oddly high percentages of unreturned ballots. The board decided in two bipartisan votes not to certify the election and to hold an evidentiary hearing. That hearing was delayed twice, first because the board decided staff needed more time to investigate, and second because of an unrelated court battle that began long before the election that dissolved the old board. A new board is now in place.

1 in 5 mailed-in ballots in Bladen County were handled by Dowless crew

When was the last time a hearing like this took place?

These hearings are not unheard of, but rarely are the stakes this high. Some of the key players this go around also took part in an evidentiary hearing in 2016, when outgoing Gov. Pat McCrory’s attorneys made a largely unsuccessful push to question votes in that election.

Where is the hearing being held?

At the North Carolina State Bar, 217 E. Edenton St., Raleigh.

McCrae Dowless

Is it open to the public?

Yes, but seating is very limited. WRAL will stream the hearing online, and documents that have been made public so far are online here.

How long will the hearing last?

As long as three days. It’s hard to say. Each side has lengthy witness lists, but the State Board hasn’t said how many will actually be called.

Are witnesses subpoenaed? Do they testify under oath? Can they refuse to testify?

Yes, yes and sort of. In past hearings witnesses have invoked the 5th Amendment to avoid answering questions. Worth noting: There’s also an open criminal investigation into 9th District results.

What are the possible outcomes?

The board could call for a new election, but four of the five board members would have to vote for that option. The board has three Democrats and two Republicans, so the vote would have to be bipartisan.

The board could also vote to certify the election — in effect saying the irregularities were not extensive enough to have changed the outcome. Only three votes are required to certify.

The board could simply refer its findings to the U.S. House of Representatives. It could also stalemate, and if that happens the election would be certified automatically 10 days after the failed vote. But the likelihood of U.S. House involvement means that might not matter. More on that below.

How many ballots have to be tainted in order to call a new election?

Republican Mark Harris leads Democrat Dan McCready by 905 votes in the still unofficial count. But the board doesn’t necessarily have to show that there are 905 votes in question. The law allows for a new election to be called if “irregularities or improprieties occurred to such an extent that they taint the results of the entire election and cast doubt on its fairness.” Some Republicans, citing court precedent, have said that only calling enough votes into question satisfies the law. But there are four separate reasons in the law for calling a new election, and the “taint” one doesn’t say anything about number of votes, while the three others do.

Are there any other issues that could lead to a new election being called?

Yes. There are allegations, including an affidavit from a poll worker, that early voting totals (the in-person ones where you just go vote early) were shared with someone before Election Day. The state GOP is on record saying that, if this occurred, it’s a strategic advantage for Election Day turnout operations and enough on its own to warrant a new election.

If the board calls a new election, will they also have to redo the primary?

Probably. The state legislature changed the law in December, in response to the 9th District controversy, to require a new primary if a new election is called. However, a former state Supreme Court justice says the primary requirement is unconstitutional, so this could end up in court.

And if the board certifies the election, then this whole mess is over, right?

No. Regardless of the outcome, the U.S. House of Representatives decides whether to seat its members and could call for a new election on its own. If the state board certifies the race for Harris, that will be big, but “not ultimately determinative,” the chairwoman of the relevant House committee told the state board in a recent letter. The chairwoman also told the board to preserve all the evidence it collects in case the House wants to do its own investigation.

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