- State Auditor Dave Boliek is intervening in the legal dispute over administration and appointments for the North Carolina State Board of Elections.
- Gov. Josh Stein is suing state legislative leaders over a law that shifts oversight of the elections board to Boliek's office. That change is scheduled to take effect July 1.
- Boliek filed a motion Thursday to intervene as a defendant in the case. Stein and top lawmakers have consented to the motion, Boliek's lawyers wrote.
State Auditor Dave Boliek is intervening in the legal dispute over administration and appointments for North Carolina’s State Board of Elections. State law calls for Boliek to begin oversight of the elections board on July 1.
Gov. Josh Stein is challenging the shift in elections board administration and appointments spelled out in 2024’s Senate Bill 382. Stein is the plaintiff in a lawsuit targeting state Senate Leader Phil Berger, R-Rockingham, and House Speaker Destin Hall, R-Caldwell. Stein is a Democrat. Berger, Hall, and Boliek are Republicans.
Boliek filed a motion Thursday to intervene in the case.
“As a member of North Carolina’s executive branch, with powers and authority independent of the Governor, State Auditor Boliek is ready, willing, and able to take on the duties and responsibilities of overseeing board of elections appointments and budget administration,” said Boliek spokesman Randy Brechbiel in a statement provided to Carolina Journal.
“The Auditor has an interest generally in protecting and executing his duties assigned by the General Assembly,” Boliek’s lawyers wrote in Thursday’s motion. “The Auditor has a specific interest in the outcome of this dispute between the Governor and the Legislative Leader Defendants because, under Senate Bill 382, the Auditor would assume responsibility for making appointments on, and handling certain administrative issues for, the State and County Boards of Elections. Thus, the Auditor moves to permissively intervene as a Defendant.”
Stein and legislative leaders have consented to Boliek’s motion, his lawyers added.
Stein and top lawmakers filed competing motions for summary judgment in the case in February.
The governor now has appointment power over the five members of the state elections board, based on recommendations from leaders of the state Democratic and Republican parties. He can appoint no more than three members from one party, effectively giving the governor’s party a 3-2 majority.
Under SB 382, passed last December over then-Gov. Roy Cooper’s veto, appointments to the elections board would shift to Boliek. The auditor also would appoint a chairman for all 100 county election boards. The auditor’s office would assume administrative control over the elections board. Changes are scheduled to take effect July 1.
“Among its many provisions, Senate Bill 382 contained the General Assembly’s sixth attempt in nine years to divest the Governor of authority to supervise the administration of North Carolina election law,” Stein’s lawyers wrote on Feb. 25. “For the first time in the State’s history, and in an approach unique among all fifty States, the General Assembly assigned complete authority to appoint, supervise, and remove members of the State Board of Elections and the chairs of all 100 county boards of election to the State Auditor, an official whose authority is dependent on the General Assembly and who has no constitutionally assigned duty to faithfully execute the laws.”
A three-judge Superior Court panel ruled in 2023 against the General Assembly’s previous attempt to restructure the elections board and shift power over board appointments. Cooper filed suit to block the change.
“This Court — in this very case — already held unconstitutional the General Assembly’s effort to strip the previous Governor of authority over the administration of election laws by assigning to itself the power to appoint, supervise, and remove members of the State Board and county boards. The same result is required here,” Stein’s lawyers wrote.
“If the General Assembly is allowed to transfer authority over the execution of election laws to the State Auditor, the General Assembly can prevent the Governor from exercising the supreme executive powers vested in him by the North Carolina Constitution and fulfilling his constitutional duty to ‘take care that the laws be faithfully executed,’” the brief continued.
Lawyers representing Berger and Hall countered Stein’s arguments in their own motion for summary judgment.
“After years of litigation by the Governor and his predecessor seeking to block reforms to the State Board of Elections, the General Assembly availed itself of an option expressly granted to it under our Constitution and transferred the Board of Elections to the State Auditor and gave the Auditor power to appoint the Board’s members,” legislative lawyers wrote. “Rather than accept those decisions which were approved by supermajorities in both the House and Senate over former Governor Cooper’s veto, the Governor has sued once again, insisting that Senate Bill 382’s changes to the State and county boards of election are unconstitutional because they do not give him enough control to ensure the boards carry out his ‘policy preferences.’”
Top lawmakers argue that state Supreme Court precedents in previous clashes between the governor and legislature do not apply to the Stein v. Berger case.
“Unlike its federal counterpart, North Carolina’s Constitution establishes a plural executive,” legislative lawyers wrote. “The Governor accordingly is not the only member of the executive branch and does not hold a monopoly on executive power. Instead, the Constitution expressly provides that the executive branch shall include nine ‘other elective officers,’ and then grants the General Assembly power to assign their duties, stating that ‘their respective duties shall be prescribed by law.’”
“Thus, just like each version before it, our current Constitution diffuses power across a multi-member executive branch and grants the People’s representatives in the General Assembly power to allocate duties among them,” the court filing continued.
“The Governor’s position would effectively write these provisions out of the Constitution,” lawmakers’ lawyers added.
“Given that ‘a constitution cannot violate itself,’ the General Assembly’s decisions to transfer the Board of Elections to the Department of the Auditor and to assign the Auditor the duty to appoint the board’s members cannot be unconstitutional, since they are decisions that the Constitution expressly authorizes the General Assembly to make elsewhere,” the court filing added.
“The framers of our Constitution made a deliberate decision not to create a unitary executive, but to maintain a plural executive,” legislative lawyers explained. “They did so as a check against the Governor and to prevent accumulation of power in one man. The General Assembly’s choice to transfer the Board of Elections, as well as the power to appoint its members, to the Auditor is a natural outgrowth of that decision. While the Governor may disagree with the outcome of that decision — and may even wish our Constitution gave him the type of consolidated powers the federal constitution gives the President — that is not the system the People of North Carolina chose.”