Category: Elections

Before leaving (hopefully) the subject of election do-overs, I should mention that there is one relevant modern “precedent,” of a fashion, which came to my attention after my initial post on the subject. (Hat tip: Steven Shepard of Politico).

The election of November 5, 1974 in Louisiana’s sixth congressional district was between Republican Henson Moore and Democrat Jeff LaCaze. The initial count had Moore leading by 44 votes, but LaCaze was able to obtain a TRO in state court preventing the certification of the results based on an allegedly malfunctioning voting machine. After the issue of the court’s jurisdiction was litigated up to the Louisiana Supreme Court (which upheld it), the trial judge (Judge Shortess) took evidence regarding the voting machine, which he determined was defective and may have changed the outcome of the election. See Melvin A. Shortess & Charles G. Douglas III, State Courts and Federal Elections, 62 A.B.A. J. 451, 453 (1976).

Judge Shortess then concluded that the appropriate remedy was to order a new election for the congressional district (he considered, but rejected, the alternative of rerunning the election in just the precinct affected by the defective voting machine). Review of this decision was sought in the Louisiana Supreme Court, which denied the writ. See LaCaze v. Johnson, 310 So.2d 86 (La. 1974).

A new election was held, which Moore won handily. He was seated by the House, apparently without further controversy. An unusual article co-written by Judge Shortess later claimed that this action by the House showed “by clear implication the House approved the analysis adopted by the state judiciary in Louisiana.” 62 A.B.A. J. at 453.

I would not assign much precedential weight to the House’s silence, particularly as to issues not before it. As far as I can tell, the question whether do-over elections conflict with federal law was not raised even in the Louisiana litigation. Two justices dissented from the denial of review of Judge Shortess’s order of a new election, but they merely argued that the circumstances did not warrant “the drastic step of annulling the entire election.” 310 So.2d at 88 (Dixon, J., dissenting). They did not consider whether federal law prohibited calling a new congressional election when no vacancy existed.

Nonetheless, the Louisiana case provides some support for the proposition that do-over congressional elections may be held, at least when ordered by a court as an extraordinary remedy. However, it is hardly conclusive as to an issue not raised, namely whether a state may provide for a do-over congressional election when, in circumstances it defines, the initial election is deemed unfair or inadequate. This remains very much an open question in my mind.

Yesterday the North Carolina election board began hearing testimony regarding alleged fraud and misconduct affecting the 2018 election in the state’s 9th congressional district. Attorneys for Dan McCready, the Democratic candidate who finished 905 votes behind his opponent, urge the board to exercise its authority under NC Gen. Stat. 163-182.13 (a) (4), which allows it to order a new election if it finds “irregularities or improprieties occurred to such an extent that they taint the results of the entire election and cast doubt on its fairness.” Attorneys for Mark Harris, the Republican candidate, argue that the statutory standard has not been met and that in any event the discretionary remedy of calling a new election should not be employed.

My prior post on this issue assumed North Carolina’s authority to call a new election here would have to rise or fall based on the House Vacancies Clause (art. I, § 2, cl. 4) in the U.S. Constitution. Under this theory, the decision of the state election board to order a new election would have to be viewed either as a legally operative act creating a vacancy under North Carolina law or as prima facie evidence that a vacancy already exists. In either case the governor would have to issue a writ of election to comply with the House Vacancies Clause, which provides “[w]hen Vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”

This theory, however, seems problematic. For one thing, it is not at all clear that the governor will play any role here. There is a statutory provision for filling congressional vacancies, NC Gen. Stat. 163A-721, which the governor will use to fill the vacancy caused by the death of Congressman Walter Jones (RIP), but this provision appears to operate separately from the state election board’s process for calling new elections. Moreover, any attempt to argue that a vacancy exists would have to grapple with the fact that the House itself has not recognized a vacancy.

An alternative theory would be that the state election board’s authority flows from the state’s general power to regulate elections under the Constitution (art. I, § 4, cl. 1), which provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .” Under this theory, North Carolina’s statutory scheme would prescribe the “time” and “manner” of electing representatives in situations where the initial election failed.

The problem with this theory, as mentioned in my earlier post, is that it seems to run afoul of 2 U.S.C. § 7, which provides that the general election for representatives to each congress must take place on a single uniform day in all states (i.e., the Tuesday after the first Monday in November in every even-numbered year). This federal law overrides any state law to the contrary. See generally Foster v. Love, 522 U.S. 67 (1997). As far as I know, there is no federal law allowing a “do over” exception to this mandate.

Therefore, it seems to me that any order from the North Carolina elections board ordering a new election in this case would run a significant risk of being held unconstitutional and/or a violation of federal law.

Another problem is that the elections board can only order a new election if four of its five members agree to do so. The board consists of three Democrats and two Republicans, creating a distinct possibility that it will be unable to reach agreement on the proper course of action. McCready’s lawyers argue that in such case the board should decline to certify the election and instead send its findings and records to the House of Representatives, deferring any further action until the House decides what to do. Harris’s lawyers counter that North Carolina law requires the board to either order a new election or certify Harris as the winner.

Whether or not a vacancy exists in this case is a determination only the House ultimately can make (however much it may wish otherwise). Regardless of whether the board certifies Harris as the winner, it should send its records, along with any findings or recommendations it deems fit to make, to the Committee on House Administration for purposes of allowing the House to make that determination. No election should be called until the House does so.

The updates on the North Carolina 9^thcongressional district consist largely of things that have not happened. First, not surprisingly, no one has been sworn in to represent the district in the new Congress. Second, no one has been issued a certificate of election, although Republican candidate Mark Harris has filed suit asking a court to order the state elections board to issue him such a certificate. Third, while some investigation into the election by state election authorities continues, formal proceedings are on hold until a new state board of elections is constituted on January 31. Fourth, and somewhat more surprisingly, the House has not taken any formal action to assert jurisdiction or commence an investigation regarding the election, although House Democrats have been having discussions about possible next steps. A good summary of these nondevelopments can be found here.

It appears House leaders are inclined to wait on the outcome of the state election proceedings, unless a court should order Harris certified (in which case the House would refuse to seat Harris and commence its own investigation). They seem to be hoping that the state board of elections will order a new election, thereby obviating the need for the House to take any action.

The problem with this passive approach is that it could take weeks or months for the new state election board to act. Moreover, as suggested in my last post, there are questions about the interaction of the House’s authority to declare a vacancy, the governor’s authority to call a special election in the event of a vacancy, and the state board’s authority to order new elections under state law. These questions and uncertainties could further delay congressional representation for the 9^th district.

In the meantime, the House seems to recognize that there is no vacancy in the North Carolina 9^th congressional district. Up until yesterday the Clerk’s homepage showed the tally of members in the 116^th Congress as including one vacancy, but that has now been changed to zero vacancies. The Clerk’s vacancies page confirms “there are no vacancies for the 1^st Session of the 116^th Congress.”

What this means for the Clerk’s authority over the empty congressional office remains to be seen. As of Tuesday afternoon, no one seemed to be in 132 Cannon (see photo of the uncollected mail). Unless the House takes further steps to empower the Clerk or someone else to manage the office or hire staff, the people of the district will have to look to their senators if they need constituent service.

The vote count in North Carolina’s ninth congressional district resulted in the Republican candidate, Mark Harris, leading his Democratic opponent by a narrow margin (905 votes). The North Carolina election authorities, however, have declined to certify his victory as they investigate allegations that the results were tainted by fraud.

This means that the House, which is constitutionally the judge of the elections and returns of its members (Article I, section 5, clause 1), has a decision to make when it meets tomorrow on the first day of the 116th Congress. Will it seat a member to represent the ninth congressional district of North Carolina? According to the incoming House Majority Leader, Steny Hoyer, the answer is no. Last Friday, Hoyer told the Charlotte Observer that Harris would not be seated on January 3 because “[i]n this instance, the integrity of our democratic process outweighs concerns about the seat being vacant at the start of the new Congress.” Hoyer’s position was visually illustrated on Monday by the nameplate on the door of a congressional office at 132 Cannon (see photo below). Rather than bearing the name of the member expected to represent the district, it reads “Office of the 9th Congressional District of North Carolina,” which is how the House designates an office managed by the Clerk under House Rule II(2)(h)(i) in the event that a vacancy occurs.

There is, however, no vacancy in the North Carolina 9th district yet, and there will not be one tomorrow unless the House votes to declare one. The House certainly has the power to do so, but it seems unlikely that it will. The question of whether the seat is vacant is not a relatively straightforward factual question (like whether a member has died or is in a coma from which recovery is unlikely), but a legal judgment that can only be made after reviewing the evidence and determining that (1) fraud occurred and (2) either the candidate was complicit or that the fraud was significant enough to have affected the outcome. This is particularly so given House precedent that “[n]othing short of an impossibility of ascertaining for whom the majority of votes were given ought to vacate an election, especially if by such decision the people must . . . necessarily go unrepresented for a long period of time.” CRS Report for Congress, Procedures for Contested Election Cases in the House of Representatives 16-17 (Oct. 18, 2016) (quoting McCloskey and McIntyre, H. Rep. 99-58, at 44 (1985)).

So what then should the House do?  It could choose to seat Harris without prejudice to its ultimate determination of the election outcome. Normally this is what the House does when one candidate is certified as the winner but there appears to be a serious challenge to the certified election results. Even then, the House sometimes declines to seat anyone. I am not aware of any precedent for what the House should do when the state authorities have not certified anyone as the winner, but it seems logical that no one would be seated in that situation. On the other hand, that intensifies the need for a speedy resolution of the matter.

The House could also choose to wait upon the outcome of the state election investigation. There are both pragmatic and constitutional considerations against such an approach, however. The former include the fact that it would significantly extend the period in which the people of the district would be unrepresented, particularly because the process in North Carolina appears to be bogged down with its own problems. The latter include the question whether it is proper for state election authorities or courts to make the types of difficult factual and legal decisions inherent in a fraud case (as opposed to the administrative nature of a recount). See Kristen R. Lisk, The Resolution of Contested Elections in the U.S. House of Representatives: Why State Courts Should Not Help with the House Work, 83 N.Y.U. L. Rev. 1213, 1217-18 (2008) (arguing for “exclusive congressional jurisdiction over all election contests seeking more than administrative recounts, because these contests involve substantive claims that require decision makers to engage directly with election results and make difficult policy decisions.”).

There is a separate and even more serious question whether state officials have the authority to order a new election on the grounds that the original election was tainted by fraud. A new election is fundamentally different than recounts or other post-election remedies. Under federal law, North Carolina was required to conduct its congressional elections for the 116th Congress on the first Monday in November 2018. See 2 U.S.C. 7. If a vacancy then happens in North Carolina’s representation, the governor must then issue a writ of election to fill the vacancy, but I am not aware of any authority for the proposition that the governor or other state officials can declare a vacancy because they believe the initial election to be defective in some way.

The closest case I have found (in an admittedly non-exhaustive search) is an 1826 Pennsylvania congressional election which resulted in a tie vote. See I Hinds Precedents 555. In that case “[i]t appearing that the people had failed to make a choice, the executive seems to have considered the case in the light of a vacancy, but not to an extent sufficient to warrant him in directing a new election until both [candidates] informed him in writing that they relinquished all claims to the seat in virtue of the election of 1826.” In light of this waiver, the House committee accepted the results of the second election and declined to consider claims arising from the first. This precedent would therefore be of little help in establishing a governor’s authority to declare or recognize a vacancy in the circumstances presented here. There are also a couple of even earlier cases brought to my attention by Professor Derek Muller in which a second election was held to fill a House seat (Lyon v. Smith, 1796 and Turner v. Baylies, 1809), but it is not clear that these involved a purported vacancy as opposed to merely a carrying out of state election procedures for the original election. Prior to the enactment of a uniform federal date for congressional elections, states were free to hold a second election at a later time if the initial election was deemed inconclusive.

It could be argued that the North Carolina governor has the authority to call for a special election, and that this authority does not interfere with the House’s constitutional prerogatives because the House is always free to disregard the results of that special election (if it believes there was no vacancy in the first place). But this would not only be an extraordinarily inefficient way of proceeding, but it would establish a potentially dangerous precedent which would allow governors to disregard the results of any election if they believed there was some deficiency in it. As a matter of prudence, if not constitutional necessity, therefore, no special election should be called in North Carolina unless the House itself first declares a vacancy.

The House could still wait on the results of the North Carolina proceedings before making a decision as to whether a vacancy exists. This, however, is likely to take a long time. Instead, the House should immediately assert jurisdiction over the North Carolina election matter and direct the Committee on House Administration (or a task force thereof) to gather the relevant facts and determine as expeditiously as possible whether a vacancy should be declared.

Finally, there is an interesting question regarding the Clerk’s authority over the office located at 132 Cannon H.O.B. As already noted, House Rules provide that “[t]he Clerk shall supervise the staff and manage the office of a Member, Delegate, or Resident Commissioner who has died, resigned, or been expelled until a successor is elected.” This authority, however, is inapplicable here. The same rule provides “[t]he Clerk shall perform similar duties in the event that a vacancy is declared by the House in any congressional district because of the incapacity of the person representing such district or other reason.” Until the House declares a vacancy, however, this authority also is inapplicable. Therefore, it would seem the House would be well advised to provide specific authority to the Clerk to manage this office in whatever resolution it crafts to deal with this unusual situation.

[Correction: Professor Tokaji informs me that the page I linked to is no longer accessible from Moritz’s main page and has not been kept updated since 2004 or so. My mistake. If anyone knows of more recent compilations, let me know and I will add them to this post]. 

What’s that you say? Where can I find a 12-year old CRS report listing state recount and contested election statutes? Amazingly enough, I have one right here.

The truth is I am cleaning some files, and the hard copy of this report is going in the recycle bin. I couldn’t find the report or a more recent version of it online and, despite its age, it seems worth preserving. A quick google search reveals a couple of other useful sources (here is a summary of state recount laws that is kept up to date [see correction] by Professor Dan Tokaji at Moritz College of Law and here is a 1990 report on state procedures for resolving contested federal elections from the EAC website).  I add the CRS report for whatever additional value it can provide.