Under an order from the N.C. Supreme Court, a three-judge panel has struck down part of a 2017 state law creating a bipartisan board overseeing state elections and ethics enforcement. The judges threw out the portion of the law addressing membership on the board.
The ruling has no impact on the rest of the law. That means the merger of previous state elections and ethics oversight groups can continue. It also means current executive director Kim Westbrook Strach can keep her job, as spelled out in the law.
It’s unclear how the ruling will affect House Bill 90, legislation approved in February and expected to become law this month without Gov. Roy Cooper’s signature. H.B. 90 changed the membership rules struck down by the trial court, but the court’s order permanently enjoins “in its entirety” the section of state law dealing with membership of the new board.
The membership portion of last year’s Senate Bill 68 spelled out that the Bipartisan State Board of Elections and Ethics Enforcement would have eight members: four Democrats and four Republicans. Gov. Roy Cooper would appoint all eight members, based on lists of six options submitted by leaders of both major state parties.
Democrat Cooper challenged the law from the Republican-led General Assembly. The state Supreme Court, voting 4-3 along party lines, sided with Cooper. That decision overruled an earlier decision from the three-judge panel that would have upheld the law.
Before the latest court ruling, H.B. 90 called for adding a ninth unaffiliated member to the new state board. The governor would appoint that member from a list of two recommendations made by the other eight board members. All of these changes are tied to N.C. General Statute 163A-2. That is the part of state law specifically declared “void and of no effect” and “permanently enjoined in its entirety” by the three-judge panel.
The governor’s office offered a positive response to the latest ruling. “This ruling shows that for the second time our courts have struck down Republican attempts to rig the board of elections,” Cooper spokesman Ford Porter said in a prepared statement. “We have confidence that their third flawed attempt last month in H.B. 90 will meet the same fate.”
Top legislative leaders focused on the unanimous three-judge panel’s decision to preserve the new bipartisan board. Legislative leaders mentioned no concern about the possibility that the latest court order would block provisions of H.B. 90.
“We appreciate the court preserved a merged bipartisan elections and ethics board, which polling shows nearly 80 percent of North Carolinians support, and rejected Gov. Roy Cooper’s arguments to resurrect a law that was already taken off the books just because his party would benefit,” said Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland. “We have addressed the court’s concerns about the board’s membership in a bill Gov. Cooper has already promised to allow to become law, and we once again encourage him to abandon taxpayer-funded and self-serving lawsuits.”
The top election and ethics staff attorney, Josh Lawson, noted in a tweet that North Carolina now has operated for 278 days without any elections or ethics board members. Cooper has refused to appoint any board members while fighting the General Assembly in court over elections administration changes.
Lawson’s tweet characterizes the latest ruling as authorizing the merger of state government’s ethics, elections, and lobbying compliance functions, while rejecting the “board composition formula.” Lawson notes that the new nine-member board is “set to become law March 15.”