Why Won’t Pat McCrory Concede? Karl Rove Knows.

Roy Cooper holds a growing lead in the statewide vote count. The Durham Board of Elections dismissed a protest filed by a local GOP lawyer regarding malfunctioning voting machines. A Wake County protest resulted in the invalidation of exactly three votes — two of which came from people who died after mailing in their absentee ballots.

Yet Pat McCrory and North Carolina Republicans have continued to file protests with local election boards — 52 at last count. They also mounted an unsuccessful effort to have the North Carolina State Board of Elections take jurisdiction over their county-level protests.

And despite there being no evidence so far of intentional wrongdoing, there’s a message they’re pushing to the public.

Republican NCSBE member Rhonda Amoroso: “To me, it appears, and it may appear to folks in the public, that we have a systemic issue here of voter fraud activities…”

McCrory spokesman Ricky Diaz: “”Roy Cooper is making presumptuous statements… to deflect attention away from serious voter fraud concerns that are emerging across the state.”

There’s no actual evidence of fraud, as you can tell by the hedging between the lines: “it may appear… that we have [an] issue… of fraud”… “emerging” “voter fraud concerns.”

Many voters assume McCrory is merely delaying the inevitable. In 1994, however, infamous Republican strategist Karl Rove waded into a similar recount scenario and emerged victorious.

A 2004 Atlantic Monthly article, “Karl Rove in a Corner,” tells the story of Rove’s closest race — not the 2000 presidential election, but the 1994 race for chief justice of the Alabama Supreme Court.

In the race for chief justice, which had been neck and neck the evening before, [Rove’s candidate, Perry] Hooper awoke to discover himself trailing by 698 votes. Throughout the day ballots trickled in from remote corners of the state, until at last an unofficial tally showed that Rove’s client had lost — by 304 votes. [Democratic incumbent Ernest “Sonny”] Hornsby’s campaign declared victory.
Rove had other plans, and immediately moved for a recount. “Karl called the next morning,” says a former Rove staffer. “He said, ‘We came real close. You guys did a great job. But now we really need to rally around Perry Hooper. We’ve got a real good shot at this, but we need to win over the people of Alabama.’” Rove explained how this was to be done. “Our role was to try to keep people motivated about Perry Hooper’s election,” the staffer continued, “and then to undermine the other side’s support by casting them as liars, cheaters, stealers, immoral — all of that.” (Rove did not respond to requests for an interview for this article.)
The campaign quickly obtained a restraining order to preserve the ballots. Then the tactical battle began. Rather than focus on a handful of Republican counties that might yield extra votes, Rove dispatched campaign staffers and hired investigators to every county to observe the counting and turn up evidence of fraud. In one county a probate judge was discovered to have erroneously excluded 100 votes for Hooper. Voting machines in two others had failed to count all the returns. Mindful of public opinion, according to staffers, the campaign spread tales of poll watchers threatened with arrest; probate judges locking themselves in their offices and refusing to admit campaign workers; votes being cast in absentia for comatose nursing-home patients; and Democrats caught in a cemetery writing down the names of the dead in order to put them on absentee ballots.
As the recount progressed, the margin continued to narrow. Three days after the election Hooper held a press conference to drive home the idea that the election was being stolen. He declared, “We have endured lies in this campaign, but I’ll be damned if I will accept outright thievery.” The recount stretched on, and Hooper’s campaign continued to chip away at Hornsby’s lead. By November 21 one tally had it at nine votes.
The race came down to a dispute over absentee ballots. Hornsby’s campaign fought to include approximately 2,000 late-arriving ballots that had been excluded because they weren’t notarized or witnessed, as required by law. Also mindful of public relations, the Hornsby campaign brought forward a man who claimed that the absentee ballot of his son, overseas in the military, was in danger of being disallowed. The matter wound up in court. “The last marching order we had from Karl,” says a former employee, “was ‘Make sure you continue to talk this up. The only way we’re going to be successful is if the Alabama public continues to care about it.’”
Initially, things looked grim for Hooper. A circuit-court judge ruled that the absentee ballots should be counted, reasoning that voters’ intent was the issue, and that by merely signing them, those who had cast them had “substantially complied” with the law. Hooper’s lawyers appealed to a federal court. By Thanksgiving his campaign believed he was ahead — but also believed that the disputed absentee ballots, from heavily Democratic counties, would cost him the election. The campaign went so far as to sue every probate judge, circuit clerk, and sheriff in the state, alleging discrimination. Hooper continued to hold rallies throughout it all. On his behalf the business community bought ads in newspapers across the state that said, “They steal elections they don’t like.” Public opinion began tilting toward him.
The recount stretched into the following year. On Inauguration Day both candidates appeared for the ceremonies. By March the all-Democratic Alabama Supreme Court had ordered that the absentee ballots be counted. By April the matter was before the Eleventh Federal Circuit Court. The byzantine legal maneuvering continued for months. In mid-October a federal appeals-court judge finally ruled that the ballots could not be counted, and ordered the secretary of state to certify Hooper as the winner — only to have Hornsby’s legal team appeal to the U.S. Supreme Court, which temporarily stayed the case. By now the recount had dragged on for almost a year.
When I went to visit Hooper, not long ago, we sat in the parlor of his Montgomery home as he described the denouement of Karl Rove’s closest race. “On the afternoon of October the nineteenth,” Hooper recalled, “I was in the back yard planting five hundred pink sweet Williams in my wife’s garden, and she hollered out the back door, ‘Your secretary just called — the Supreme Court just made a ruling that you’re the chief justice of the Alabama Supreme Court!’” In the final tally he had prevailed by just 262 votes. Hooper smiled broadly and handed me a large photo of his swearing-in ceremony the next day. “That Karl Rove was a very impressive fellow,” he said.

The piece’s author, Joshua Green, doesn’t spell it out, but the point of Rove’s approach seems to be that if you keep the results in dispute until the case can get into court, while spreading the message through the press that the “wrong” candidate won by cheating and that the “right” candidate’s supporters are angry and anxious about the election being “stolen,” that message will reassure judges that:

a) It won’t feel morally wrong in the moment to tamper with the outcome, because the candidate who appears to be the winner isn’t the real winner (especially effective if the judge prefers Rove’s candidate to begin with).

b) They won’t later feel doubt and regret about taking the victory away from the apparent victor, since that candidate was not only not the real winner, but something worse than even a loser, a cheater.

c) They won’t lose the respect and deference of the public for tampering with the outcome, because the members of the public who really care about the election will be happy with their decision to change the outcome.

d) The ordinarily “safe” course of action — leaving the status quo in place — is not really safe. It’s turning a blind eye to injustice. It’s failing to punish wrongdoing, which is one of the things judges are supposed to do.

e) If they personally prefer Rove’s candidate, helping that candidate win won’t be merely indulging their own biases, it will be serving the will of the people.

The goal of the message is overcoming the bias towards inaction that is built into every appellate court system and becomes second nature to every appellate judge. The burden is on the appellant to overcome a strong presumption that everything was done correctly in the previous proceeding.

Judges read the newspapers and watch TV too, so Rove spins a humdrum story that could simply be about broken voting machines, bad arithmetic, and a few acts of carelessness into a captivating media message about injustice — and preventing injustice is what judges are supposed to do. Required to do, in fact.

If this analysis is correct, McCrory’s surrogates will keep pushing a “voter fraud” message all the way through the county-level protests and a statewide recount, looking for common patterns they can spin into a fanciful narrative of statewide malfeasance and tampering. Then it’s on into the court system. For now, keep your eyes peeled for rallies.