Just How Unprecedented is North Carolina-9?

Rep-Elect? Mark Harris (R-NC)

The 2018 midterms feel a little like the election that will never end.  This past week, TJ Cox pulled off one of the biggest upsets of the cycle (the only races I'd argue that were more unlikely to flip were SC-1 and OK-5, though CA-21 is different from these seats as it will be considerably harder for the Republicans to flip back since Hillary Clinton won it by 16-points), and while it looked like 40 seats was going to be the ceiling for the Democrats, a new conundrum in North Carolina seems to have occurred, and I wanted to take a peak at this and profile two similar races & how they turned out for Congress.

For those unfamiliar, this past week the State Board of Elections in North Carolina unanimously decided not to certify the results of the 9th congressional district race, the closest in the state.  The contest pitted Republican Pastor Mark Harris, who had defeated incumbent-Rep. Robert Pittenger in the primary by a margin of 828 votes against Democratic former Marine Dan McCready.  It appeared, until this week that Harris had won the general election by an equally as tight margin of 905 votes, making it one of the country's closest races.  However, the State Board of Elections declined to certify the results, citing voting irregularities in Bladen County, specifically regarding absentee ballots.  While McCready won most absentee ballots in every other county by a pretty robust margin, in Bladen County Harris received 61% of the absentee ballots, even though registered Republicans only made up 19% of the people who returned their ballots (it's worth noting that Unaffiliated voters made up 39% of the vote, so it's entirely possible that Harris did unusually well with these voters or with registered Democrats, though that doesn't jive with the results from the rest of the district).

This gets more unusual when you point out that Bladen County also gave Harris a disproportionate number of absentee ballots in the primary against Robert Pittenger, where he won 96% of the absentee ballots in the county, while he was winning the county itself by just 61%, a pretty big jump that is atypical to see.  Bladen County also had an astronomically higher number of requested absentee ballots in that primary (22% compared to the second place county Mecklenburg County, which only had 1.6 percent); many of these ballots, according to elections law expert Gerry Cohen, were never returned, potentially making them victim to someone claiming to complete the ballots but not actually doing so.  Multiple voters have come forward stating that they had a woman stop by their house to collect their absentee ballots.  In case you're unaware, this is illegal; campaigns can help people request absentee ballots, but they are not allowed to collect the ballots (this is a practice known as ballot harvesting).  The reason this is illegal is that it could open up the door for a campaign to throw away ballots that aren't for their candidate.  If that were the case, it would be nearly impossible to determine, in a race as tight as Harris/McCready (or Harris/Pittenger, for that matter), who actually won.

I suspect we'll hear a bit more in the coming days from the State Elections Board as they investigate (McCready is already calling for a full investigation), but I'll point out that this is extremely unusual.  While tight, this race isn't close enough that a recount would be necessary (though it's entirely possible at the end of the day that we'll get one), but it's worth noting that I've never seen an election this high profile being allegedly compromised in modern history (say, the past fifty years).  If Harris or his campaign staff did in fact act in an untoward manner, that's a felony, and would make certifying him the victor impossible.  Even if it was done without Harris or his campaign's knowledge, it still opens up the potential to something that basically never happens in American politics: a redo election.

There are two elections, arguably two of the oddest modern congressional races, that come to mind when I think of this.  Neither of these races had allegations of voter impropriety (at least not before the election), but they are similar in that both races had to be decided by Congress, rather than the state's elections board.  These contests are the 1974 New Hampshire Senate race and the 1984 congressional election in IN-8.

Sen. John Durkin (D-NH)

The 1974 race pitted Rep. Louis Wyman (R) against State Insurance Commissioner John Durkin (D) for the open seat of retiring Sen. Norris Cotten (R).  Most pundits had assumed that the more-established Wyman would win the race in the (then) relatively conservative New Hampshire, but the 1974 Democratic waves in light of Watergate made it much closer on election night than people assumed, with Wyman up by 355 votes over Durkin before the race went to a recount.  The recount changed the leader, with Durkin suddenly leading Wyman by ten votes, and then a second, partial recount resulted in Wyman beating Durkin by just 2 votes.  Republican Governor Meldrim Thomson certified these results and Wyman as the winner; Cotten resigned early to give Wyman a leg-up in seniority, and Thomson appointed Wyman to the Senate on December 31, 1974.

Durkin decided at this point to throw a Hail Mary pass and go directly to the Senate, which had an overwhelming majority for the Democrats, enough so that he could probably get seated along partisan lines.  While they weren't able to seat Durkin, they also kept Wyman from being seated (so he only served from 12/31/74-1/3/75, likely the shortest tenure of any US Senator ever, depending on how you handle the case of Rebecca Latimer Felton).  Nearly eight months later (the longest such vacancy in Senate history, even longer than Minnesota in 2008), Wyman and Durkin finally agreed to another Senate election being held, with the Senate's approval.  In the reelection, Durkin won by a decisive 27,000 votes (due to the high-profile nature of the special election, more people voted in the special than had in the original general election), and was seated until he ultimately lost a reelection bid in 1980.

It's probable that the US House of Representatives wished they'd gone with a special election in 1984, considering the issues that resulted from the contest.  The election pitted first-term Rep. Frank McCloskey (D) against State Rep. Richard McIntyre (R) during the 1984 Reagan landslides.  McCloskey was a pretty liberal Democrat for such a conservative district, and Reagan would win the district by 23-points.  However, personal popularity kept McCloskey competitive, and after election night he was ahead by 72 votes.  A tabulation error was uncovered later, with the result being that McIntyre took the lead by 34 votes.  A full recount was ordered, with McIntyre taking the lead by 418 votes, but nearly 4800 ballots (more than enough to change the margin) were dismissed.  The Democrats in the House refused to seat McIntyre or McCloskey, and conducted their own investigation of the election, finally deciding in May of 1985 that McCloskey had won by just 4 votes, seating him by a nearly party-line vote against massive protests from the Republicans, who felt that McIntyre had been cheated out of the election.  McIntyre sought a rematch against McCloskey in 1986, but at that point Reagan was less popular than he'd been in 1984, and McCloskey was a more established incumbent with a more favorable environment, and he won the race by 7-points.  Still, lingering anger from Republicans about this election still exists, with many citing it as one of the key causes to our current negative partisan environment.  

In my opinion it's damn near impossible to figure out who actually won the 1984 election due to too many discrepancies in the votes counted, and both sides would have been better off going with a special election like they did in New Hampshire.  We're still figuring out the situation in North Carolina, but it's entirely possible that it could soon join this list if there are strong enough allegations of voter misconduct.  Wait and see, but remember that while it's "unprecedented" there are in fact equally strange elections we've seen come-and-go in the past.