We Demand Gov. Cooper Call for NCSBE Chairman Malcolm to Recuse Himself

The Honorable Roy Cooper
Governor, State of North Carolina
North Carolina Office of the Governor
20301 Mail Service Center
Raleigh, NC 27699-0301

Dear Governor Cooper;

We are writing to request that you immediately call for the Chairman of the State Board of Elections & Ethics Enforcement (“the Board”), Joshua Malcolm, to recuse himself from the Board’s investigation and the proceedings at the upcoming Board hearing set to take place on or before December 21, 2018. While the North Carolina State Board of Elections & Ethics Enforcement has stated its ongoing investigation into absentee voting irregularities and other alleged activities in the 9th Congressional District is their top priority, there is evidence that Joshua Malcolm is too partisan to play the role of prosecutor, judge, and jury during this investigation and proceeding.

Joshua Malcolm, the current Chairman of the Board, was the only member of the State Board of Elections in 2016 that continues to sit on the Board. Malcolm is also the former chairman of the Robeson County Board of Elections (one of the two counties under investigation for alleged voter fraud).  At the Board’s meeting where Malcolm made a motion not to certify the results of the 9th Congressional District race, he said in a statement, “I’m very familiar with unfortunate activities that have been happening down in my part of the state. I am not going to turn a blind eye to what took place to the best of my understanding which has been ongoing for a number of years that has repeatedly been referred to the United States attorney and the district attorneys for them to take action and clean it up." Obviously, Malcolm knew there were absentee voting problems in Bladen County for years, and, as a member of the Board, he had the opportunity to hold up certification of other elections in order to investigate, but he failed to do so.  It appears that the results of elections in Bladen County in 2016 were certified by the Board upon the motion of Malcolm, including your own race for Governor, which was contested.

Board Chair Joshua Malcolm’s overtly partisan actions call for him to recuse himself from the investigation, the upcoming evidentiary hearing, and the vote of the Board.  Here are the facts showing Malcolm is too overtly partisan and tainted to conduct a fair investigation and hearing, and to vote on the outcome:

  • Malcolm has guided the efforts of the Board to investigate Republicans in the 2016 election in Bladen County. WBTV identified two other coordinated efforts targeting absentee ballots including a local businessman and political action committee funded by the North Carolina Democratic Party, but to our knowledge the State Board has not issued any subpoenas to further investigate these other two groups. Malcolm’s failure to investigate seems politically motivated. 
  • Malcolm has only issued subpoenas to the campaign of Mark Harris and the candidate himself. No subpoenas have been issued for Dan McCready or his campaign, even though as the preceding bullet point explains, reports have surfaced in the press of Democrat PACs conducting absentee ballot programs similar to what is alleged against McCrae Dowless. 
  • Fully aware of absentee ballot irregularities, the State Board had no hesitation to certify a Mecklenburg County House race where over 20% of the 9th Congressional District’s absentee ballots were cast. The overlapping State House race was won by the Democrat by only 68 votes, yet no review was initiated.
  • In 2016, in an effort to meet canvass deadlines, Malcolm made a motion to dismiss election fraud allegations related to absentee ballots and certify the elections in question, yet in 2018, he made the motion not to certify the election of Mark Harris based on the same type of alleged absentee ballot irregularities. In 2016, the election in question was your own election, Governor Cooper.  This year, it is the election of Republican Mark Harris. This inconsistency is unexplained.
  • The State Board of Elections never actually inspected all the absentee ballots in question from Bladen County in 2016. They simply dismissed the allegations and referred the case to the U.S. Attorney, because there were not enough votes to overturn the election.
  • Malcolm, a resident of Robeson County, has publicly stated he is personally offended about matters coming to the Board of Elections from Robeson and Bladen counties. This signals that he won’t be objective and fair. 
  • In September 2018 it was Malcolm who led efforts on behalf of the Board to immediately rescind U.S. Department of Justice subpoenas investigating voter fraud in Bladen and other eastern North Carolina counties. Malcolm surely “turned a blind eye” to voter fraud allegations then.
  • In March 2018, Malcolm made the motion to remove Wayne King, Congressman Mark Meadows’ District Director, from the Cleveland County Board of Elections in what is called a “partisan move.” He was the only candidate to be objected to by the Board.  
  • In 2016, in response to election complaints concerning your election, Governor Cooper, Malcolm said, “It would be a mistake for this board to take up protests.  (Counties) need to make fact-finding decisions.”  Yet, in the current election year with regard to certifying the win of Mark Harris in District 09, Malcolm said he would no longer “turn a blind eye” to what he called “unfortunate activities.”  He boldly overrode Bladen County’s certification of the race, inconsistency that can only be attributed to partisan motives.
  • Because the Board failed to resolve ongoing investigations into absentee ballot irregularities in Bladen County, a trap was laid for unsuspecting candidates in the 2018 election, like Mark Harris.  Chairman Malcolm is guilty of mismanagement of the election process, since he is the only continuing member of the Board from 2016 to present.
  • Chairman Malcolm, while making a motion to not certify the election results in the 9th Congressional District, failed to hold up certification of other elections on the same ballot that would have been impacted by any absentee voting irregularities. This can only mean that Chairman Malcolm is prejudiced against the winner of that election, Mark Harris.

In the last week several individuals with conflicts of interest have stepped up to recuse or resign to assure all North Carolina voters that these proceedings will be fair and transparent. They include Bladen County Republican District Attorney Jon David, Jens Lutz, Bladen County Democratic Board of Election Vice Chair, and former State Board of Elections and Ethics Enforcement Democratic Chairman Andy Penry.  In light of these resignations and recusals, it is entirely reasonable to ask for Chairman Malcolm’s recusal.

Voters will not believe in the integrity of this election unless Chairman Malcolm recuses himself.  Voters want a fair and transparent process where all parties are treated equally, and yet, so far, fairness has been denied to Mark Harris.  We therefore respectfully request that you call for Chairman Joshua Malcolm to recuse himself from the Board’s investigation, the proceedings at the upcoming Board hearing set to take place on or before December 21, 2018, and the Board’s vote.

 

Sincerely,

North Carolina Values Coalition,
Concerned Women of America Legislative Action Committee,
FRC Action,
Coalition of Voters