Battle over NC elections board appointments heads to hearing April 14

The legal battle between Gov. Josh Stein and state legislative leaders over North Carolina elections board appointments will head to a three-judge panel on April 14. The panel expects to issue a ruling by May 1.

That’s the date when current state law would allow State Auditor Dave Boliek to make new elections board appointments.

Stein is seeking a temporary restraining order and preliminary injunctions to block Boliek’s appointments. Stein is a Democrat. Legislative leaders and Boliek are Republicans.

The panel of Superior Court judges endorsed an order Wednesday setting an April 9 deadline for competing parties to submit “proposed findings of fact and conclusions of law.”

The panel and lawyers representing Stein, top lawmakers, and Boliek will convene five days later in Raleigh to consider Stein’s request. “The court intends to issue its ruling by May 1, 2025,” according to the order signed by Superior Court Judge Edwin Wilson.

Wilson is a Democrat. He and fellow Judges Lori Hamilton and Andrew Womble, both Republicans, have been overseeing the lawsuit since then-Gov. Roy Cooper first challenged proposed election administration changes in October 2023.

Stein is challenging provisions in Senate Bill 382, approved in December, to shift elections board appointments to Boliek.

Boliek filed a brief on March 12 accusing Stein of arguing that the governor should “own” the elections board. Stein filed a motion two days later seeking to block the shift of election appointments to the auditor.

“In State ex rel. McCrory v. Berger [a 2016 precedent], the Supreme Court explained that ‘[u]nder the rule that [the legislature was advancing], the General Assembly could appoint every statutory officer to every administrative body, even those with final executive authority, and could prohibit the Governor from having any power to remove those officers,’” Stein’s lawyers wrote in a follow-up brief filed on March 17. “The Court concluded that such a  ‘rule would nullify the separation of powers clause’ because it would give the General Assembly ‘the … ability to control the executive branch.’”

“The rule that the Legislative Defendants advance in this case is functionally no different,” Stein’s lawyers argued. “Instead of claiming the right to appoint directly a majority of the members of boards and commissions, Legislative Defendants now claim an unfettered right to select the appointer by splintering the executive power of the State that the Constitution vests in the Governor and transferring it among Council of State members statutorily.”

“This assertion of power is breathtaking: if the Legislative Defendants prevail, the General Assembly may, at any time, strip any disfavored official, including the Governor, of the authority to appoint and remove executive branch officials, and transfer that power to different Council of State members until they manage to secure their preferred appointees,” the governor’s lawyers added.

“Adopting Legislative Defendants’ view would enable the General Assembly to remove the Governor completely from the execution of any area of law including, as here, the elections laws. It would give Legislative Defendants complete, functional control over both the substance of the law through their lawmaking power and the faithful execution of the law through their claimed power to control and change at will who executes the law at any time. That outcome would fundamentally rewrite our Constitution by placing the General Assembly, not the Governor, at the head of the executive branch,” Stein’s lawyers warned.

“This is not the system that the people of North Carolina chose in their Constitution, and it makes a mockery of the separation of powers. Senate Bill 382 is unconstitutional beyond any doubt and should be enjoined,” the governor’s court filing continued.

Both Stein and Republican legislative leaders seek summary judgment from a three-judge Superior Court panel. Summary judgment would allow judges to decide the case without a trial.

“The Governor’s insistence that our Constitution requires that he hold all executive power runs directly contrary to our Constitutional text, history, and precedent,” lawmakers’ lawyers wrote in a separate March 17 brief. “This remains true no matter how many times the Governor inserts the words ‘only,’ ‘exclusively,’ or ‘solely,’ into his brief. The drafters of our Constitution made a deliberate choice to check the accumulation of executive power by (i) establishing nine ‘other elective officers’ within the executive branch and (ii) expressly reserving the power to assign their duties for the General Assembly under Article ITI, Section 7(2).”

“Senate Bill 382 is the natural outgrowth of that choice,” legislative lawyers argued. “After years of litigation by the current Governor and his predecessor blocking efforts to establish a bipartisan board of elections, the General Assembly has now chosen to (i) transfer the Board of Elections to the Department of the State Auditor, and (11) assign the Auditor the duty to appoint the Board’s members.”

“In doing so, the General Assembly has made a policy decision the Constitution expressly authorizes it to make,” the court filing continued. “Nothing about shifting appointments to the Auditor violates the separation of powers. Indeed, the power to appoint all of the Board of Elections’ members remains with the executive branch.”

“The Governor’s claims accordingly fail as a matter of law,” lawmakers’ lawyers argued.

The case known as Stein v. Berger or Stein v. Hall is one of three current lawsuits targeting sections of SB 382, approved last December over then-Gov. Roy Cooper’s veto. A second suit from Stein targets a provision that blocks him from appointing a new commander of the State Highway Patrol. A third suit challenges a portion of the law that would limit Stein’s choices when filling judicial vacancies and take away a state Utilities Commission appointment.