Race for governor could result in contested election

With less than 5,000 votes separating incumbent Gov. Pat McCrory and challenger Attorney General Roy Cooper, its possible the race could be decided by the N.C. General Assembly

Gerry Broome—AP
Democratic gubernatorial candidate Attorney General Roy Cooper

RALEIGH — Although tens of thousands of provisional ballots have yet to be certified, the race for governor between Republican incumbent Gov. Pat McCrory and Democratic challenger Attorney General Roy Cooper may be left unsettled even after the final canvassing is complete.The McCrory campaign has already filed a formal protest with the Durham County Board of Elections over “malfeasance” in tabulating approximately 90,000 ballots using allegedly corrupt data from machines that suffered critical errors during early voting and on Election Day. “What transpired in Durham County is extremely troubling and no citizen can have confidence in the results at this point in time,” said Jason Torchinsky, chief legal counsel for the Pat McCrory Committee Legal Defense Fund. “The Durham County Board of Elections has a history of mishandling elections and it is unfortunate that this one appears to be no different.”Reports of voters arriving at the polls only to discover that a vote had already been cast in their name have been surfacing since election day, adding to the McCrory campaign’s worries that such irregularities may constitute the difference in vote totals in the unusually close race. Less than 5,000 votes separate the two candidates.If the county-by-county canvassing, due to be completed by November 18, fails to show a margin of greater than 10,000 votes, a recount will likely be demanded. Still, if the recount does not yield a clear winner and voting irregularities prove persistent, a more dramatic contested election could be the result.Precedent exists for such a contested statewide election as recently as 2004. That year, vying for N.C. Superintendent of Public Instruction, Democrat June Atkinson held an approximately 8,500 vote lead over Republican candidate Bill Fletcher, out of a total of more than 3.3 million votes cast.Fletcher eventually challenged the legality of 11,000 provisional ballots cast by voters who were not registered in the precinct where they voted. Even though the N.C. Supreme Court ruled that out-of-precinct voting was authorized in the law, they also held that a constitutional provision allowing the legislature to decide disputed elections for Council of State offices, including governor, was no longer valid because the General Assembly had deleted the legal procedures for doing so in 1971.Dominated by a Democrat majority in 2004, the legislature responded to the ruling with a law that removed the courts and substituted the General Assembly as the body to decide a disputed election and specifically allowing out-of-precinct voting.While Republicans filed a lawsuit in federal court to challenge the new law, then-Attorney General Roy Cooper was able to get the suit thrown out. Subsequently, the lawmakers exercised their newly self-appointed power in siding with Atkinson over Fletcher, declaring her winner of the statewide race for superintendent. Should the race between McCrory and Cooper remain too close to call after all redundancies are accounted for, the McCrory campaign could have enough evidence of voting irregularities to call for a contested election, making the the North Carolina House of Representatives the final decision maker in who occupies the governor’s mansion for the next four years.Such a development would surely favor McCrory, the Republican, as the Republicans hold a super-majority in the General Assembly. Cooper may also be limited in his protest of such a measure, given he argued in favor of the law in 2004 while the legislature was under Democrat control.