Why A Majority-Minority Congressional District May Go Unrepresented For An Entire Year


Gov. Pat McCrory (R-NC)

A quirk of North Carolina’s election law may leave voters in the state’s 12th Congressional district without representation until 2015. Though Rep. Mel Watt (D) resigned his seat on the first day of the legislative year to become director of the Federal Housing Finance Agency, Governor Pat McCrory (R) announced Monday that his replacement will not be elected until November 4. The 12th District, which includes a long swath of central North Carolina running from Charlotte to Greensboro, has a majority of voters who are minorities.

McCrory ordered a primary be held on May 6, 2014, the regularly scheduled date for North Carolina primary elections. If none of the candidates receives more than 40 percent of the vote, the second place candidate can request a runoff, which would be held on July 15 (the same day reserved for any regularly scheduled primary runoffs). This situation is quite possible, given that several candidates are reportedly seeking the Democratic nomination in this heavily Democratic district. The general election, again coinciding with the already scheduled state elections, will be held on November 4 — after all of the 2014 session is over, save for a possible lame-duck session. Oddly, the governor’s official writ of election did not include a provision for holding the general election in July if a runoff is not requested. Such a provision could potentially have vastly sped up the process. With the new Representative set to be elected on the same day in the normal general election, it is possible that the 12th District special election winner could serve for just for a lame-duck session — or never be sworn-in at all.

McCrory’s office did not immediately respond to a ThinkProgress request for information about the writ.

McCrory’s announcement statement noted that holding three stand-alone special elections would likely cost the state “in excess of $1 million,” though he just signed a two-year budget adding $1 million in new “tourism advertising” funding to the state’s eight-figure Travel, Tourism, & Sports Development spending.

Out of North Carolina’s 13 U.S. House districts, the 12th is one of just two with a majority of voters that are not white. Prior to Watt’s resignation, it was one of just two districts with Congressmen who are racial minorities and one of just four represented by Democrats. With this seat vacant, an already heavily gerrymandered state will be even less representative of its diverse population.

Bob Hall, executive director of the non-partisan Democracy North Carolina, told ThinkProgress that ten months was “too long a gap” in representation. “Something needs to change so you don’t have that large gap.”

While McCrory’s decision was also met with criticism from at least one of the candidates, it appears that he could only have shaved about two months off of that time, under state and federal law.

North Carolina General Statute 163-13 spells out that, in the event of a House vacancy at this time of year, the governor must schedule a primary to select nominees. Section 163-111 of the state’s statutes provides the second place finisher the right to request a runoff (“second primary”) if the top finisher receives 40 percent of the vote or less. The federal Uniformed and Oversees Citizens Absentee Voting Act requires a 45-day period before each election for federal offices to allow adequate time for absentee voting by those Americans stationed or living abroad.

Had the vacancy come later in the year (starting 10 days before the filing period ends for the next general election), however, the nominees would have been chosen not by primary/primaries but by the parties’ executive committees for that congressional district. This was the case in 2004, the time North Carolina experienced a mid-term House vacancy: Rep. G.K. Butterfield (D) was elected and sworn-in less than six weeks after the resignation of Rep. Frank Ballance Jr. (D). While this method is significantly faster and allowed the state’s First District to be represented for all but a few weeks of the year, allowing party committees to select candidates is far less democratic than primaries.

From a cost and time standpoint, the possible run-off election is the biggest obstacle to a speedy replacement process. North Carolina is one of a few states that still require runoffs. In Florida, Rep. C.W. “Bill” Young (R) died in October; his replacement will be nominated in a January 14 primary and elected in a March 11 general election. This will require just two, rather than three, election days and will mean a gap in representation of just five months instead of ten. This method is more democratic than the party committee option, but potentially allows a candidate with just a small plurality of the vote to win the nomination in a crowded primary.

One possible solution for North Carolina and other jurisdictions that want to prevent candidates from winning nomination with a small minority of the votes, but want to avoid letting voters lack a voice in the U.S. House of Representatives for nearly a year, would be an instant runoff voting. Voters in one primary would simply rank their choices, so a candidate with majority support will emerge. San Francisco, Minneapolis, and other cities have adopted such a system for their elections, as have countries like Australia. But Gerry Cohen, special counsel to the North Carolina state legislature told ThinkProgress that the Tar Heel state recently repealed an instant runoff voting rule which had been in place for some judicial races, as the optical ballot scanners were not correctly programmed to tally them and a statewide handcount had been necessary.

Cohen noted that the legislature’s controversial 2013 election reform bill included a provision calling for a legislative study on potential changes in the process for filing congressional vacancies in North Carolina.

But for now, thanks to McCrory’s writ and the North Carolina law, hundreds of thousands of voters will be unrepresented for most, if not all, of 2014.