- North Carolina's five living former governors all back current Gov. Roy Cooper in his legal fight with state legislative leaders over a law that would remake the State Board of Elections.
- The bipartisan group of former governors filed a court document Tuesday labeling Senate Bill 749 "the General Assembly’s latest attempt to take away the Governor’s constitutionally conferred executive power."
- The former governors also back Cooper in a fight with top lawmakers over appointments to seven other state boards and commissions.
North Carolina’s living former governors all back current Gov. Roy Cooper in his legal battle with legislative leaders over a law that would remake the State Board of Elections. They filed paperwork in the state Appeals Court Tuesday to submit a friend-of-the-court brief supporting Cooper.
It’s the second time this month that the bipartisan group of former governors united behind the Democrat Cooper. They also support his courtroom fight with Republican legislative leaders over appointments to seven other state boards and commissions.
In a case titled Cooper v. Berger, the governor challenged Senate Bill 749, a bill that would replace the current five-member State Board of Elections with a new eight-member board. Rather than giving the governor’s political party a one-vote majority, the new board would have an even number of members from both major parties. Legislative leaders, not the governor, would appoint board members. The bill also would create an even partisan split for county boards of elections.
A three-judge Superior Court panel ruled in favor of Cooper and against legislative leaders in March.
“The five living former Governors of North Carolina have a strong interest in this case: their interest in preserving the executive power, status, and dignity that the Constitution confers on the Office of the Governor,” lawyers for the former governors wrote in a court filing Tuesday.
Democrats Jim Hunt, Mike Easley, and Bev Perdue joined Republicans Jim Martin and Pat McCrory in supporting the document.
Based on their “unique, shared experience” and “deep understanding of how the Constitution’s separation-of-powers guarantee works in the real world,” “the former Governors seek to share their perspective that not only is Senate Bill 749 unconstitutional, but it also lacks any legitimate justification,” their lawyers wrote.
The former governors labeled their interest in the case “nonpartisan.” “This case, after all, is not about partisan politics. It is about the separation of powers — a bedrock constitutional principle as old as the State of North Carolina itself. That foundational principle transcends politics,” the court filing continued.
“The former Governors strongly agree with Governor Cooper that the three-judge panel in this case should be affirmed,” the document stated.
A previous Cooper v. Berger case settled by the state Supreme Court in 2018 backs the governor’s position now, the former governors argued. “But separate and apart from this controlling precedent, the former Governors wish to call special attention to the fact that Senate Bill 749 suffers from a more basic flaw: Not only is it unconstitutional, but it also lacks any legitimate justification for its enactment — a ‘solution without a problem’ that reveals its true motive,” according to the court filing.
“[T]here is no legitimate justification — nor has the General Assembly identified one — for eliminating the Governor’s executive power to appoint and supervise the Board of Elections,” the former governors’ lawyers wrote. “In short, there is no problem in need of a solution.”
“Rather, for nearly 125 years, the Board of Elections has faithfully ensured that our elections are lawful and accurate,” the document added.
“Senate Bill 749 should be viewed as what it really is: the General Assembly’s latest attempt to take away the Governor’s constitutionally conferred executive power,” the former governors’ lawyers wrote.
The former governors filed their paperwork one day after Cooper and state Attorney General Josh Stein submitted briefs in the case. Stein is the Democratic nominee to succeed Cooper. Voters will choose the next governor next week.
“Ignoring our Constitution and controlling precedent, Senate Bill 749 (Session Law 2023-139) eliminates the Governor’s power over the State Board of Elections and the county boards of elections, the executive agencies charged with enforcing election laws,’ Cooper’s lawyers wrote. “Senate Bill 749 thus violates the constitutional guarantee of separation of powers by preventing the Governor from exercising the executive powers vested in him by the North Carolina Constitution, … and fulfilling his constitutional duty to ‘take care that the laws be faithfully executed.’”
“This appeal concerns whether the General Assembly can do what the Supreme Court enjoined it from doing just a few years ago: restructure boards of elections to eliminate the Governor’s constitutional authority to take care that the laws are faithfully executed,” according to a brief filed by lawyers with Stein’s state Department of Justice. “Because nothing has changed in the law since the General Assembly’s previous attempt to usurp the Governor’s authority in this way, the panel below was correct to hold no.”
Lawyers representing state Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, filed their opening brief in the case on Sept. 23.
“The trial court erred” by not relying on a 2023 state Supreme Court precedent in the redistricting case Harper v. Hall, legislative lawyers wrote. “These were material miscalculations by the trial court that led it to incorrectly determine that it had subject matter jurisdiction.”
Even if the Appeals Court decides that trial judges ruled correctly on subject matter jurisdiction, “the close review our Constitution demands in determining unconstitutionality beyond a reasonable doubt demonstrates that 2023 N.C. Sess. Laws 139 is a lawful exercise of legislative authority,” according to legislators’ brief.
Superior Court Judges Edwin Wilson, Lori Hamilton, and Andrew Womble issued a March 8 order striking down elections board changes incorporated in SB 749. Wilson is a Democrat. Hamilton and Womble are Republicans.
The bipartisan panel’s decision allowed the current five-member elections board with a 3-2 Democratic majority to remain in place during the current election cycle.
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.