Updated at 3:30 p.m.
A superior court judge in Raleigh has ruled that the state Board of Elections was within its rights not to certify Republican Mark Harris as the winner of North Carolina's 9th District Congressional election in November.
Judge Paul Ridgeway said the election does not have to be certified until after an investigation of possible election fraud is completed.
"The board of elections, as it will be composed after Jan. 31, 2019, will be in the best position to weigh the factual and legal issues associated this pending protest," Ridgeway said from the bench Tuesday afternoon.
And it can wait until after a new Board of Elections is seated on Jan. 31, he said. In a separate case, the elections board was dissolved when a panel of state judges determined its makeup was unconstitutional.
The Harris campaign had sued, arguing that state law required the former elections board to certify the election soon after the November vote. Harris' lawyer David Freedman said they took the case to court because they "had no other forum to present [their] issues."
"We were always going to comply with the board of elections," Freedman said. "We were not trying to short circuit, which is why we have complied with subpoenas that are no longer constitutional."
Lawyers for Harris's Democratic opponent Dan McCready and the elections board had asked the judge to dismiss the lawsuit. They argued, and the judge agreed, that the investigation should continue into allegations of mail-in ballot fraud by a campaign worker for Harris.
Ridgeway said under state law, "Until a protest is resolved, there is no requirement that the board certifies the election. Certification must occur 10 days after the resolution of a protest."
Since that investigation is not complete, Ridgeway declined to support Harris' request that the election be certified.
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The issue has been clouded by a separate lawsuit that challenged the validity of the new Board of Elections and Ethics Enforcement. When a three-judge panel invalidated the new board in December, Ridgeway said, "that did not resolve the protest or the investigation."
The state elections board said in a statement following Tuesday's hearing that its investigators continue to "thoroughly investigate irregularities" in the 9th District election. Decisions to either certify a winner or order a new election can be made only after a "full hearing on the record" occurs, the state board said. That hearing cannot take place until new members are seated on the board, which is expected to happen at the end of this month.
"We look forward to providing a full accounting of what transpired once a board is seated," State Board Executive Director Kim Westbrook Strach said. "Public confidence in our elections system demands it."
In a statement, the North Carolina Democratic Party said:
“We are pleased that Harris’ frivolous request has been denied and that North Carolina can get back to investigating allegations of systematic electoral fraud committed on behalf of Harris’ campaign. Only a full, public investigation can begin to repair the damage Mark Harris and North Carolina Republicans have inflicted on our state and our voters.”
Harris narrowly led Democrat Dan McCready in the 9th District race before the investigation started.
North Carolina Republican Party Chairman Robin Hayes responded to the ruling with:
"Nothing about today’s court hearing changes the fact that Congressman-Elect Dr. Mark Harris won the election. He received more legal votes and no public evidence has shown the outcome is in doubt. We are confident that Dr. Harris will be certified by the new State Board and will be seated in Washington."
Democrats who this month took control of the U.S. House said they wouldn't seat Harris without an investigation into the allegations, and suggested they may examine the dispute no matter what the state elections board does.
The questions of election fraud surround a political operative in rural Bladen County, Leslie McCrae Dowless, who worked for Harris' campaign at the candidate's insistence. Dowless has declined interviews. A statement by his attorney said he is innocent of any wrongdoing.
More than a dozen witnesses signed sworn affidavits alleging that Dowless or people working for him collected incomplete and unsealed ballots from voters. It's illegal for anyone other than a close relative or guardian to take a person's ballot.
Harris said he didn't learn until late last month that the state elections board investigated Dowless and others potentially involved in ballot fraud in 2016.
"I would later learn that obviously there had been things that should have been looked into, but everything that had been looked into had come out just perfectly fine," Harris said in one of several television interviews he conducted earlier this month.
The state elections board, which has no power to prosecute election cases, forwarded its evidence to the federal prosecutor's office in Raleigh. The U.S. Attorney since September 2017 has been President Donald Trump's nominee, Robert Higdon.
Harris suggested Democrats may have known about illegal ballot-harvesting activities in Bladen County but didn't complain until after November's election so that it would booby-trap the Republican's victory.
"Could it be that they weren't prosecuted because this was a situation we would just lay in wait, and then the time would come that if $11 million and Dan McCready couldn't beat Mark Harris, maybe this would be an insurance card that would be played for a do-over? I don't know," Harris said.
McCready, an Iraq War veteran and head of a solar-energy investment firm, said earlier this week that the former Baptist pastor of a Charlotte megachurch should be prosecuted if he participated in election misconduct.
"Either he knew what was going on during his constant conversations with McCrae Dowless about his absentee ballot program, having been warned about the fraud already, and he should be in jail. Or he turned a blind eye to fraud, he built a culture of corruption, that represents the worst in our politics," McCready told WBTV.
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