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The North Carolina governor’s race is being bitterly disputed

North Carolina Gov. Pat McCrory and his wife Ann.
Chuck Liddy/Raleigh News & Observer/TNS via Getty

Election Day was more than two weeks ago, but votes are still being tallied in the North Carolina governor’s race, which has become the subject of intense partisan controversy, apparently baseless allegations of large-scale voter fraud, and even speculation about a possible semi-coup from the legislature.

Though Republicans won both the presidential and Senate contests in the Tar Heel State, the incumbent Republican governor, Pat McCrory, is currently trailing his challenger, Attorney General Roy Cooper (D), in the vote count.

The vote tally isn’t yet final, because provisional and absentee ballots are still being counted in various counties and challenges are being resolved. But Cooper currently leads by about 7,700 votes — a little over 0.15 percent of the total cast — according to the State Board of Elections website. (His campaign, which is following results on the ground as they come in, puts his lead a bit higher than that.)

But McCrory’s campaign is vigorously disputing various ballots and making dark allusions that Democrats could be stealing the election with voter fraud. "Now we know why Roy Cooper fought so hard against voter ID and other efforts to combat voter fraud as attorney general," McCrory campaign manager Russell Peck wrote on Facebook. "With each passing day, we discover more and more cases of voting fraud and irregularities.”

These disputes are very unlikely to flip the outcome in the final vote count

Yet while some individual votes could indeed correctly be thrown out according to state law — for instance, some convicted felons may have voted without fully serving their probation, or people could have died in between casting their ballots early and Election Day — experts and nonpartisan observers generally haven’t found the McCrory campaign’s allusions to large-scale fraud to be persuasive.

Furthermore, county election boards that all have Republican-appointed majorities have rejected many of McCrory’s challenges so far, though he still has more in the pipeline. And overall, the number of ballots the McCrory campaign has challenged so far is much smaller than the amount Cooper leads by — meaning it’s hard to see how the outcome will tip. The recount McCrory has requested is similarly unlikely to change the outcome — Cooper’s lead is just too big.

One catch here is that a conservative group has filed a lawsuit challenging the state’s same-day registration process, which could conceivably knock out tens of thousands of votes — but it’s viewed as unlikely to succeed. The vote count is overwhelmingly likely to end with Cooper as the winner.

Could the legislature actually overturn the result of the election?

Still, McCrory has been beating the voter fraud drum so loudly that rumors have spread — and been amplified by media reports — that he could be trying to delegitimize the election to set the stage for a far more brazen move.

North Carolina state law says that a “contested election” can be determined by the state legislature. The state legislature is controlled by Republicans. So even if Cooper leads the final vote totals, the legislature could theoretically conclude that due to fraud concerns, they believe McCrory is the rightful winner, and vote to make him governor instead. That’s the “election-stealing” theory put forward by Mark Joseph Stern at Slate.

But it should be noted that as of this moment, this fear is not based on anything Republicans in the legislature have said they’re planning to do. It’s based mostly on speculation by Democrats and the media about what they might do, or what they seem to have the power to do.

The state House speaker did say a few days ago that he believed the legislature does have “the authority to weigh in on that,” according to the Raleigh News & Observer (which has been doing lots of great coverage of this topic). But he added that the election results haven’t been finalized yet, so he couldn’t say whether they’d do it.

Though North Carolina’s parties are bitterly divided and its state legislature has moved far to the right, most observers of the state’s politics still believe that overturning the result of a democratic election would be a bridge too far. It would cause massive outrage and almost surely result in a federal lawsuit (law professor Rick Hasen thinks there would be grounds for one).

Still, betting on American institutions to constrain illiberalism has generally gone rather poorly this year, so it’s worth keeping an eye on what happens in North Carolina in the coming weeks.