Elections board appointee seeks to intervene in Cooper’s lawsuit

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

Listen to this story (5 minutes)

  • A Republican appointed to North Carolina's new eight-member state elections board wants to intervene in Gov. Roy Cooper's lawsuit against the board.
  • Former Lincoln County Commissioner Martin Oakes filed a motion to intervene Wednesday in Wake County Superior Court.
  • A three-judge panel granted Cooper an injunction on Nov. 30 against the new board. Without the injunction, the new board would have taken effect on Jan. 1.

A former Lincoln County commissioner appointed to North Carolina’s new eight-member State Board of Elections is trying to intervene in Gov. Roy Cooper’s lawsuit against the board.

Martin Oakes filed a motion Wednesday in Wake County Superior Court to take part in the lawsuit dubbed Cooper v. Berger. Oakes, a Republican, labels himself on X/Twitter as a “Lincoln County political activist.”

The governor is challenging Senate Bill 749, which would replace the state’s current five-member elections board with an eight-member board. While the governor’s political party maintains a 3-2 majority on the current board, the new board established under SB 749 would have four members from both major political parties.

SB 749 also would change the nature of state elections board appointments. Under the current system, the governor appoints board members based on recommendations submitted by the leaders of the state Democratic and Republican parties. The new law shifts the appointment power to Republican and Democratic leaders in the General Assembly.

A three-judge Superior Court panel granted Cooper an injunction on Nov. 30 blocking the new board from taking effect on Jan. 1. Judges suggested a trial in the case could take place in January or February.

Under Senate Bill 761, approved on Oct. 25, Oakes was scheduled to join the new state elections board in January. He “claims damages” if Cooper wins the lawsuit, since his appointment would be vacated “by virtue of reducing the number of seats on that board and removing appointment power” from state lawmakers and returning it to Cooper, according to the court filing.

A win for Cooper “would effectively remove” Oakes from the elections board, his intervention motion argued.

Oakes targets Cooper’s arguments against the new eight-member elections board. He focuses on the board’s “quasi-judicial” role in overseeing North Carolina’s elections.

“Clearly ‘quasi-judicial’ powers are best served by a system in which a majority of the judges are not members of one political party, which creates the appearance, or the actuality, that decisions made are in favor of that political party, and against other political parties,” Oakes wrote. “And no one disputes that the State Board of Elections is ‘an independent agency.’ How can the ‘Governor’s constitutionally assigned executive branch duty of election law enforcement’ (Plaintiff’s words) be reconciled with Elections being run by an independent agency?”

“There is also no specific wording in the Constitution which specifies that the Governor shall enforce election laws,” Oakes added. “Plaintiff stretches the words ‘faithfully execute the laws’ to include election administration AND election judicial actions.”

Oakes disputes Cooper’s argument that appointments give the governor power over the board. The governor selects the current five board members from two lists of four names provided by the state Democratic and Republican Party chairs.

“The Governor’s sole (minimal) ability is to reject one of the persons submitted by one party chair, and to reject two of the persons submitted by the other,” Oakes argued. “The persons submitted by the party chairs may have extreme views (in any direction) but the Governor SHALL appoint those remaining after he has eliminated three of the eight.”

“Consequently, one party chair has effectively appointed the majority of the State Board, since the Governor SHALL ‘appoint’ three people from that party chair’s list,” Oakes added.

“[N]either political parties nor the chairs thereof, are mentioned in the North Carolina Constitution, and should not be granted such extraordinary powers as to effectively control the State Board of Elections,” Oakes argued. “The political party chairs have NOT been elected by the people.”

Cooper “has not objected to this, but, in fact, asks that it be re-instated, as is,” Oakes wrote. “This argument by Plaintiff also totally ignores the rights of the people under the 14th Amendment to the United States Constitution (equal protection under the laws). To have the state’s elections run by members of one party, to the exclusion of the other parties and of unaffiliated voters, generates at least the appearance, if not the reality, of preferential treatment of the Governor’s party’s candidates.”

The new elections board law “corrects this error by returning appointment power to entities (the majority AND minority leaders of the Senate and House of Representatives) which HAVE been elected by the people, and removes any constraint on who to appoint, and this includes potentially appointing unaffiliated voters,” Oakes wrote.

The three-judge panel overseeing the Cooper v. Berger elections board case has not scheduled its next action in the case.