Judge rejects Mark Harris' bid to be declared 9th District winner

"Nothing about today’s court hearing changes the fact that Congressman-Elect Dr. Mark Harris won the election. He received more legal votes and no public evidence has shown the outcome is in doubt," North Carolina Republican Party Chairman Robin Hayes said in a statement.

Harris led Democrat Dan McCready by about 900 votes following the election, but the state board has refused to certify that because of suspicious absentee voting results in Bladen and Robeson counties.

Attorneys for Harris argued in court Tuesday that there's been no proof of fraud that would overcome Harris' lead in the contest.

"As far as any evidence before the court of any irregularity, there isn't any," Winston-Sale attorney Dudley Witt said, noting that 11 of the 13 people who have filed affidavits with the elections board alleging absentee ballot fraud ended up voting in person.

But Special Deputy Attorney General Amar Majmundar countered that there is no regulation requiring the number of suspect ballots to be greater than the purported margin of victory. Also, he said, the "taint of fraud" in the race needs ot be addressed.

"The material [elections board investigators have gathered] certainly suggests that the number of disputed votes more than sufficiently calls that margin into question," Majmundar said.

Alex Dale, a Wilmington attorney representing Harris, said state law requires the board to certify an election within 10 days of any protest, adding that the board's investigation doesn't qualify as a protest because rules for lodging a protest weren't followed.

"Certification is a process that has a mandatory timeline," Dale said. "At the end of the day, they cannot create their own proceedings [and] their own timeline."

The investigation can continue on a parallel path while Harris serves in Congress, he said.

Majmundar said, however, that the board has no recourse if Harris is declared the winner and the investigation concludes that his campaign perpetrated fraud.

"There is no claw-back provision," he said. "Once this election is certified, the board is without authority to conduct any remedial action."

A state board hearing on the inquiry was initially delayed and then canceled when courts, in a separate lawsuit, ruled the board's makeup unconstitutional and dissolved it.

Although a new state board is expected to be appointed next week, Witt said the investigation and appeals of any decisions by the board could effectively wipe out Harris' two-year term in Congress and leave the 9th District without any representation.

Democratic leaders in the U.S. House have already said they won't seat Harris until the fraud allegations have been resolved, so Majmundar said the investigation should be allowed to move forward and the process play out with the elections board in charge.

"If it turns out that the 905-vote margin is entirely legitimate, great. We've gotten it right," he said. "If it turns out there's some questions about it, then we should be getting it right."

Ridgeway expressed reservations about stepping into the dispute and later agreed that the new board is best positioned to handle the disputed race.

"Why are we looking at a dramatic intervention by one branch of government into the functioning of another branch of government?" the judge asked. "It would be highly unusual for this court to step in and say we require certification in a contested race with an investigation pending. ... That's an extraordinary step to ask a court to do."

Ridgeway ruled that the former board's actions amounted to an election protest, that the state law establishing the new board allows it to continue the investigation and that the board isn't required to certify the results until that protest is resolved.

"We look forward to providing a full accounting of what transpired once a board is seated,” Kim Westbrook Strach, executive director of the elections board, said in a statement. "Public confidence in our elections system demands it."

Harris might appeal the ruling, according to David Freedman, a Winston-Salem attorney representing him, but Harris also will also be prepared to take his case to the new elections board as soon as possible.

"I'm hoping the election board gets seated Jan. 31, and relatively quickly afte,r that we'll be having a hearing," Freedman said.

"We do know that election fraud took place. We do know that, by some accounts, it was substantial, and that’s worth looking into," Aaron Simpson, a spokesman for McCready, said after the court hearing. "I think both sides agree that it’s most important that the people of North Carolina have a voice in Washington and have answers to the questions that, so far, they don’t."

"We are pleased that Harris’ frivolous request has been denied and that North Carolina can get back to investigating allegations of systematic electoral fraud committed on behalf of Harris’ campaign," Wayne Goodwin, chairman of the North Carolina Democratic Party, said in a statement.

Goodwin on Monday accused Republicans of trying to obstruct justice by getting their candidate seated before the investigation is finished.

"It is not for the state Republican Party to decide which votes count and which ones do not," he said. "Once again, Mark Harris and the Republican Party are pushing a false narrative to steal a congressional seat."

Once the new elections board is in place, Goodwin said, a public hearing needs to be held so the evidence collected so far can be reviewed before any final decision on the 9th District race is made.

The 9th District is the only seat in Congress that is currently vacant, and Republican Party officials from across the district complained Monday that they need to be represented just like everyone else.

Union County GOP chairman Dan Barry noted 87,000 people cast votes in the 9th District race from his county.

"The action of our voters has to mean something – 87,000 votes in Union County has to mean something. They can't just be erased when there is no evidence justifying to do so," Barry said.

Other GOP officials repeatedly argued that no evidence of widespread election fraud has been shown, so there's no reason to keep Harris from being declared the winner and going off to Congress.

"It is simply irrational to believe irregularities affected a single race and not all of them, yet other down-ticket races were decided by the same ballots and were certified," Robeson County GOP Chairman Phillip Stephens said.

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Ridgeway said the ongoing investigation into alleged absentee ballot fraud in the election puts all other actions in the race on hold.

"The number of suspicious votes is more than enough to call the margin [of victory] into question," Majmundar told Superior Court Judge Paul Ridgeway.

"As we stand here, Dr. Harris is prevailing, but he has not yet prevailed," Majmundar told Superior Court Judge Paul Ridgeway.

"Why are we looking at a dramatic intervention by one branch of government into the operations of another branch?" Superior Court Judge Paul Ridgeway asks, suggesting Harris' camp await for a new State Board of Elections to be appointed next week and carry out its functions.

"At the end of the day, they cannot create their own proceeding, their own timeline regarding certification," Dale told Superior Court Judge Paul Ridgeway.