A rarely-invoked piece of North Carolina law could allow Republican lawmakers to declare Pat McCrory the winner of the race for governor — even though he’ll probably end up with fewer votes than his opponent.
But such a decision would likely be challenged in federal courts, prolonging a stalemate in the Tar Heel State that has already lasted two weeks.
McCrory, a Republican, finds himself trailing Democratic challenger Roy Cooper by about 6,600 votes out of 4.7 million cast, according to unofficial results. He’s already filed for a recount, and lodged challenges of voter fraud in 50 of the state’s 100 counties.
Several of the complaints have been thrown out because of a lack of evidence, but if McCrory sows enough doubt about the legitimacy of the election results, he could theoretically urge lawmakers to take matters into their own hands.
According to state law, the General Assembly can settle a “contested election” by ordering a re-vote, or by simply choosing the winner themselves, “if it can determine which candidate received the highest number of votes.”
Their decision would not be reviewable by state courts, but if the majority-Republican legislature actually flipped the election McCrory’s way, federal courts could challenge the decision.
“If it is absolutely clear that this is a power grab by the N.C. legislature because there is no question who received more votes, then I could see a federal court saying that the legislature is violating due process by, in essence, overruling the majority’s will,” University of Kentucky law professor Josh Douglas told The Charlotte Observer.
The statute has been invoked only once, in 2005, to settle a dispute in the race for state superintendent of public instruction. In that contest, according to the Raleigh News & Observer, lawmakers argued over “whether 11,000 provisional ballots should be counted even though they were cast in precincts outside of where the voters lived.”
Having lawmakers settle the election is an “absolute last resort,” North Carolina House Speaker Tim Moore said on a podcast last week.
“It would really be a blow to the system for the legislature to decide this one,” Ferrel Guillory, an expert on North Carolina politics, told Business Insider. “The chances are relatively slim, as they ought to be.”