Cooper, legislative leaders ask three-judge panel to resolve elections board dispute

State Senate Leader Phil Berger, Gov. Roy Cooper, and House Speaker Tim Moore

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  • Gov. Roy Cooper and state legislative leaders have filed competing motions asking a three-judge panel to resolve a dispute over state elections board changes without holding a trial.
  • Senate Bill 749 would replace the existing five-member, Democrat-majority board with an eight-member group split evenly between the two major parties.
  • A three-judge panel issued an injunction on Nov. 30 blocking the new board from taking effect. The same judicial panel will hold a hearing in the case on Feb. 28.

Gov. Roy Cooper and state legislative leaders have filed competing motions to end a legal dispute over changes to North Carolina’s state elections board. A hearing in the case is scheduled Feb. 28 in Raleigh.

Lawyers for Cooper, a Democrat, filed a motion for summary judgment on Friday. It asks a three-judge panel to decide the case in Cooper’s favor without holding a trial. Lawyers for top Republican lawmakers filed a separate motion Friday to dismiss Cooper’s lawsuit.

Judges Edwin Wilson, Lori Hamilton, and Andrew Womble will consider those motions at the Feb. 28 hearing. The same panel issued an injunction on Nov. 30 blocking elections board changes spelled out in Senate Bill 749.

The law would replace the current five-member, Democrat-majority state elections board with a  new bipartisan eight-member body. The new elections board had been scheduled to take effect on Jan.1. With the judges’ decision to issue a preliminary injunction, the current elections board remains in place throughout legal proceedings in the case titled Cooper v. Berger.

The governor is the plaintiff in the suit. Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, are the defendants.

“[V]iewing the evidence in the light most favorable to Defendants, there is no genuine issue as to any material fact and Plaintiff is entitled to judgment as a matter of law,” Cooper’s lawyers wrote in their motion.

“Plaintiffs claims are the kind of claims our Supreme Court has held to be political questions and non-justiciable,” Berger and Moore’s lawyers wrote. “Justiciability is a part of the courts’ subject matter jurisdiction over a particular claim and because Plaintiff’s claims are non-justiciable, this Court should dismiss them … for lack of subject matter jurisdiction.”

If judges decide to hear the case, legislative leaders urge a decision in their favor. “Defendants are entitled to final judgment as a matter of law,” their lawyers wrote.

Republican legislators approved the new elections board through SB 749 after overriding a veto from Democratic Gov. Roy Cooper.

SB 749 would replace a five-member state elections board, featuring three members of the governor’s party, with an eight-member board split evenly between Democrats and Republicans. The law also would replace existing county elections boards, now weighted toward the governor’s party, with new boards featuring an even number of members from both parties.

The law also would give appointment power over state and local boards to the General Assembly. Cooper appoints the state elections board now based on recommendations from Democratic and Republican Party leaders.

Martin Warf, arguing on behalf of legislative leaders, told Judges Edwin Wilson, Lori Hamilton, and Andrew Womble during a Nov. 30 hearing that the new eight-member board would force people on both sides of the political divide to come together to find solutions.

He also rejected Cooper lawyer Jim Phillips’ argument that the elections board changes could cause irreparable harm to the governor.

Wonble questioned Warf’s assessment of harm if the panel agreed with Cooper that SB 749 violated the governor’s constitutional rights.

Hamilton suggested that anyone who had followed debates about election integrity over the past four years would not want to permit a change in election administration that would later be found to be unconstitutional.

She labeled the idea “seriously dangerous.”

Senior Deputy Attorney General Amar Majmundar, representing Democratic Attorney General Josh Stein and the executive branch, urged the judges to issue a preliminary injunction as both “appropriate” and “necessary.”

Hamilton and Womble are Republicans. Wilson is a Democrat. The General Assembly unanimously voted to confirm Wilson to a special Superior Court judge’s job in 2023 after Cooper nominated him for the job.

State Supreme Court Chief Justice Paul Newby appoints three-judge panels to hear facial constitutional challenges like the one Cooper filed against SB 749.

The governor argues the new eight-member board “would gridlock North Carolina elections and violate the separation of powers,” according to a news release from Cooper’s office.

Local elections boards also would be split evenly between the two major parties. Under current law, the governor’s party holds a majority of seats on state and county elections boards.

“The deadlocks that will be created on these new Boards of Elections at the state and local levels likely will reduce early voting and create longer lines at the polls,” Cooper said in the news release. “It will also undermine fair elections and faith in our democracy by sending disputes to our highly partisan legislature and courts. Both the Courts and the people have rejected this bad idea and the meaning of our Constitution doesn’t change just because the Supreme Court has new Justices. The Supreme Court should accept the clear precedent and the clear voice of the people and reject the Legislature’s latest attempt to control the election process.”

The state Supreme Court rejected lawmakers’ previous attempt to create a bipartisan elections board in 2018. Voters defeated a constitutional amendment that year addressing the same issue.

Cooper’s complaint targets Berger and House Speaker Tim Moore, R-Cleveland. The suit says legislative leaders ignored state Supreme Court decisions that “reaffirmed the separation of powers as a foundational principle of our state government.”

“Showing flagrant disregard for these constitutional principles, the North Carolina General Assembly takes direct aim at established precedents and once again seeks to significantly interfere with the Governor’s constitutionally assigned executive branch duty of election law enforcement and to take much of that power for itself,” Cooper’s lawyers wrote.

“Like Gollum reaching for the One Ring, Legislative Defendants are possessed by the power it brings,” the complaint continued. “When it comes to seizing control of the enforcement of the State’s election laws, neither the clear rulings of the Supreme Court, nor the overwhelming vote of the people, will deter them.”

“To be clear, nothing has changed since the last time Legislative Defendants tried — and failed — to cripple the State Board of Elections, except, of course, the composition of the Supreme Court,” Cooper’s lawyers wrote. “But Defendants Berger and Moore hope that is enough — that the new Court will discard the principle of stare decisis to give Legislative Defendants what they so desperately want.”

Democrats held a 4-3 majority on the state Supreme Court in 2018. After building that majority to 6-1 in 2019, Republican sweeps of statewide judicial races in the last two election cycles have produced a 5-2 GOP majority on the state’s highest court.