Cooper rebuts arguments from unaffiliated voters in elections board lawsuit

Image from Gov. Roy Cooper's official Twitter account

Listen to this story (6 minutes)

  • On the same day that Gov. Roy Cooper complained about a legislative "power grab" involving changes to the N.C. State Board of Elections, his lawyers filed paperwork in a lawsuit challenging the current board.
  • Cooper wants a federal judge to throw out a lawsuit from activist group Common Cause and five unaffiliated voters. They challenge existing state law that prevents unaffiliated voters from serving on the state elections board.
  • Republican state legislative leaders also have filed a motion to have the unaffiliated voters' lawsuit dismissed.

As Gov. Roy Cooper complains about a legislative plan to revamp the N.C. State Board of Elections, he also has filed a new brief opposing unaffiliated voters’ federal lawsuit challenging the existing board’s makeup.

Cooper, a Democrat, raised concerns Tuesday about the Republican-led N.C. Senate’s bill to create a new elections board with four Democrats and four Republicans. Legislative leaders from both parties would appoint the members.

The new board would replace the current five-member elections board. The governor appoints its members based on recommendations from leaders of the state’s two major political parties. Current law allows the governor to appoint three members from his own party, giving that party a 3-2 majority.

Cooper would have no role in elections board appointments under the Senate plan.

“The Courts have repeatedly found these power grabs to be unconstitutional,” Cooper tweeted Tuesday. “Republicans are depending on friends and family on the new partisan Supreme Court to overturn strong bipartisan precedent and give them the power to ignore voters and rig elections.”

In a separate development Tuesday, Cooper’s lawyers filed paperwork in U.S. District Court. The governor responded to criticism of his motion to dismiss a lawsuit from left-of-center activist group Common Cause and five unaffiliated voters. The suit challenges existing state law that prevents unaffiliated voters from serving on the elections board.

“[B]ecause unaffiliated voters are not a discrete bloc of individuals with a ‘particular viewpoint, associational preference, or economic status,’ their First Amendment association rights cannot be burdened as unaffiliated voters do not share the political views necessary to ‘associate,’” wrote N.C. Justice Department lawyers representing the governor.

Cooper’s brief takes aim at Common Cause’s role in the case. “Common Cause cannot represent their members who are unaffiliated voters in a facial challenge because those members lack a shared ideology or set of common interests and are not a defined group whose members will accrue some benefit from the relief sought by Common Cause,” the governor’s lawyers wrote. “Consequently, Common Cause cannot appropriately assume representational status, and … cannot sue on behalf of unaffiliated voters.”

The governor also lacks the authority to grant the unaffiliated voters the relief they seek in their legal challenge, the brief added.

“Specifically, Section 163-19 prescribes that the chairs of the two largest political parties, not Governor Cooper, compile the lists of party-affiliated candidates from which the Governor may appoint State Board members,” Cooper’s lawyers wrote. “Because the statute limits Governor Cooper to simply appointing Board members from the list of candidates submitted to him by the party chairs, he is unable to provide the demanded remedy, and should therefore be dismissed from this action.”

Cooper accuses the plaintiffs of relying on the wrong federal legal standard in making their arguments. The governor’s preferred test “was designed to allow elected officials to ensure that their policies are carried out by appointees with common views,” according to the brief.

The governor rejects the unaffiliated voters’ constitutional claims. “Plaintiffs insist that their First Amendment right to free association — in the form of their right to register as unaffiliated voters — is burdened by the statute,” Cooper’s lawyers wrote. “However, the statute makes no impact upon their right to register as unaffiliated voters, to vote unaffiliated, or to run for elected office while unaffiliated to any party.”

“Instead, to the extent the statute hinders any right, it is the right to be appointed to the State Board of Elections,” the brief continued. “Even then, however, there exists no constitutional right to hold public office. Therefore, because Section 163-19 does not impede the ability to exercise the franchise or run for elected office, the statute’s burden on Plaintiffs’ constitutional rights is, at most, de minimis.”

If a burden is “de minimis,” it lacks significance or importance.

Cooper rejects the argument that unaffiliated voters could be compared to a third political party, larger than either the Democratic or Republican parties in North Carolina.

“Plaintiffs argue that ‘if unaffiliated voters were treated like a third party, they would have passed the point of deserving recognition — and representation on the State Board — many years ago,’” the governor’s lawyers wrote. “Yet, likening unaffiliated voters to a third political party is clearly misplaced because a collection of disparate unaffiliated voters does not constitute a third political party.”

“Indeed, unaffiliated voters do not have a party organization, nor do they field candidates for office,” the brief continued. “They are not an ‘identifiable political group’ that share a ‘particularviewpoint, associational preference, or economic status’ that the Supreme Court has defined as groups worthy of protection under the ballot-access cases. A diffuse population of voters whose only common trait is a lack of political affiliation is a far cry from a political party and is insufficient to legitimately claim entitlement to party status.”

Cooper filed a motion on May 9 to dismiss the unaffiliated voters’ suit. Republican state legislative leaders offered their own arguments against the suit in March.

There is no deadline for a decision on those motions.