The nine-member State Board of Elections and Ethics Enforcement has officially dissolved on account of being unconstitutionally structured, and what happens next is as good a guess as any.
There is controversy about whether the State Board ceases to exist in absence of a current constitutional structure or if it reverts back to its prior five-member structure per the 2015 law. Rep. David Lewis (R-Harnett) and other Republicans maintain the earlier scenario and Gov. Roy Cooper has already started preparing for the latter.
“Governor Cooper this morning sent a letter to the two major party chairs requesting nominations for the State Board of Elections by close of business today,” said spokesman Ford Porter in an email. “These members will serve until a new board is convened on Jan. 31 per [House Bill] 1029.”
Lawmakers voted yesterday to override Cooper’s veto of HB 1029, which restructures the State Board, and it will take effect Jan. 31. In the meantime, Cooper and GOP legislative leaders asked the three-judge panel that ruled the current State Board structure unconstitutional to stay its decision for a fifth time until HB 1029 was in place.
The panel declined to do so and they took the parties to task for disregarding their order.
“The day after the final extension of the Stay was entered, the State Chairman of the Board of Elections and Ethics Enforcement published a discovery and hearing schedule which completely and totally disregarded the timetable established by the extension of the Stay, indicating a complete disregard for an Order of this Court,” states the denial issued Thursday. “The parties have not given even a cursory explanation as to why the hearing was continued from Dec. 28 until Jan. 11, let alone one demonstrating compelling reasons and substantial and reasonable justification, for not only the additional time needed, but the total disregard of the previous Order of the Court in extending the stay.”
The panel is referring to the now former State Board’s timetable for investigating alleged absentee ballot fraud in the 9th congressional district, because that has been the backdrop of all the extensions of time for the nine members to keep working.
State Board spokesman Pat Gannon said Friday that in the State Board’s absence after noon, all members of the agency would continue to work on the 9th congressional district investigation and perform other election administration functions as necessary. The Board is what dissolved, not the agency.
The current State Board before it dissolved was asked to consider an emergency petition by the Mark Harris for Congress Committee to certify his race, despite the ongoing investigation into absentee ballot fraud.
“The citizens of the 9th District have an expectation to be represented when Congress convenes on Jan. 3,” the petition states. “The State Board should not deprive the citizens of the 9th District of their right to representation.”
There would have had to have been five members of the State Board to call an emergency meeting to consider the petition, but only two did, according to a letter from former State Board Chairman Josh Malcolm to Harris’ attorney.
The letter indicates the investigation is ongoing but it also sheds some light on Harris’ lack of cooperation with the former State Board. It states that Harris has been under a subpoena since Dec. 1 but has only produced 398 pages of documents after indication that he possessed about 140,000 additional documents. The letter reinforces the request that Harris comply fully with the subpoena.
It also states that staff at the State Board agency made several attempts to schedule an interview with Harris that have been unsuccessful thus far.
“The main goal of the State Board staff has been and continues to be a thorough and transparent investigation into elections irregularities, so that State Board members have as much evidence as possible in front of them when they consider whether to certify the 9th congressional district contest or order a new election,” the letter states. “The faith of voters in our election system depends on that.”
Editor’s note: This is a breaking news story and will be updated throughout the day.