It appears that the North Carolina General Assembly will decide who is the next governor of North Carolina.

When vote counting ended on Wednesday, Nov. 9, the total showed that Attorney General Roy Cooper was ahead by fewer than 5,000 votes over Gov. Pat McCrory.

Both Cooper and McCrory are raising funds for the legal battle that will ensue. And with about 60,000 provisional, absentee and military ballots still to be counted at this point, nobody knows what the final official tally will be.

But he race is far from over, and not just because of the vote tally. In North Carolina there is an interesting twist on elections for governor and council of state: Contested elections, according to the North Carolina Constitution and state statute, are determined by the legislature, not the courts, and once the legislature makes a decision, there is no further appeal.

Speaker of the state House Tim Moore has been quoted as saying that he didn’t think the General Assembly would make the decision. But if the election results are contested, the state Constitution leaves no doubt about who makes that decision.

Article VI, Section 5 of the North Carolina Constitution states that a contested election for the council of state offices, including the governor, “shall be determined by joint ballot of both houses of the General Assembly in the manner prescribed by law.”

The Democrats set up the procedure and used it in 2005 to elect June Atkinson superintendent of public instruction in a contested election.

In the election of 2004, Atkinson on election night won a narrow 8,500 vote victory over Republican Bill Fletcher, who contested the election. In that race, over 11,000 provisional ballots were cast by voters voting out of their precinct.   Fletcher argued that there was no provision in state law for voters to vote out of their precincts, and in a surprise ruling the North Carolina Supreme Court agreed, throwing out all 11,000 contested provisional ballots.

Then the Democratic controlled legislature stepped in. At that time there was no provision in the statutes for how the General Assembly would make the decision. So the legislature passed a law, NCGS 163-182.13A, which sets the procedure. It also passed a law making voting out of precinct for provisional voters legal, and then making the law retroactive.

With the new laws in place, the General Assembly took over the contested election from the courts as set forth in the state Constitution. To no one’s surprise, the Democratic majority in the General Assembly declared the Democrat, Atkinson, the winner.

But what is good for the goose is good for the gander.

McCrory could still win after all the ballots from overseas voters, military voters and provisional voters are counted. But if he does not, and McCrory contests enough ballots to turn the election in his favor, then the decision on who was the winner of the governor’s race will be made by the heavily Republican General Assembly, sitting as one body with each state senator and state representative having one vote as was prescribed by the Democrats.

McCrory has had battles with the Republican-led state House and state Senate, but there is little doubt that the Republican legislature would rather have McCrory than Cooper. Particularly since Cooper helped engineer the whole House Bill 2 (the bathroom bill) controversy.

Cooper also stepped in at least twice to stop the state legislature and the Charlotte City Council from reaching an agreement that would have allowed HB2 to be repealed and let the state go back to where it was, before the Charlotte City Council passed an ordinance with statewide effect that made bathrooms and shower facilities by public and private entities gender neutral.

It seems strange that the General Assembly and not the courts would determine the outcome of a contested election, but that is the Constitution and the law in North Carolina.

The Democrats did it in 2005, giving the election to the Democrat. It would be shocking if the Republican majorities in the state House and state Senate didn’t do the same for the governor in 2017, which is probably the earliest this election will be resolved.

An official protest has been filed against the Durham County totals, since the totals came from voting machines where the cartridges in the machines were corrupted.

Instead of recounting the individual votes, the totals were taken directly from the voting machine hard drives, but nobody knows if the hard drives were working properly or not.

Durham County has just over 200,000 registered voters, and 90,000 of those votes were affected by the corrupted vote cartridges. That’s an awful lot of votes that had to be counted around midnight by election staff workers who started their workday at 6 a.m., using equipment that well may not have been working properly.

A protest has also been filed in Bladen County against absentee ballots, hundreds of which appear to have been filled out by a few people associated with the Bladen County Improvement Association PAC, which is largely funded by the North Carolina Democratic Party and the campaigns of Democratic candidates. There is evidence that people were paid to fill out and witness the ballots, and the signatures on the ballots are suspect.

So that’s two counties, over 90,000 votes, and the investigation has just gotten started.

With Republican veto-proof majorities in both houses, the Republicans in the legislature can do what they want regardless of who is governor, but the governor has a lot of appointment power.

Apropos to this case, the governor appoints two members from his own party to the board of every three-member county board of elections in the state, as well as appointing a majority from his party to the State Board of Elections.

This is a fact that raises questions about what McCrory was thinking when he appointed the members of the Durham County Board of Elections. The staff of the elections office there is already under investigation for the March primary.

And in this case the Republican-controlled Durham board of elections allowed the elections staff to hold out 90,000 early votes – about half the total from Durham County – until late on election night. Then through some miraculous coincidence, the votes from Durham County overcame McCrory’s lead of over 50,000 votes and provided Cooper with a 5,000 vote margin.

The circumstances themselves raise big questions about what was actually going on in Durham County.

How do you lose or forget to count the votes cast in early voting until late on the night of the election? It’s not like this election was a surprise. Durham County had plenty of time to get ready for election night and these were not votes cast on Election Day. Most counties sent in their early vote totals as soon as the polls closed, but at that point nobody knew how close the governor’s race would be or how many votes the Democrats might need. When Durham County sent in their vote totals, they new just how close the race was and how far ahead McCrory was.

Then you have the State Board of Elections where McCrory also appointed a Republican majority. One state elections office employee was let go before the election when it was discovered that she was holding seminars on the best way to commit voter fraud without getting caught.

Another state elections employee sent a notice out to all 100 counties stating that voter registration forms did not have to be signed. State law specifically states that the voter registration forms have to be signed by the applicant. Why is this state employee still a state employee?

This election is a long way from being over, and if McCrory ends up the winner, he should be more strident in his appointments to key positions like those on the boards of elections in both counties and the state.

If McCrory fails he has no one but himself to blame for allowing the kind of partisan corruption that exists in the elections offices.

Parisian Promenade at Bicentennial Garden