Judges could decide NC elections board dispute by March 8

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

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  • A three-judge panel is likely to issue a decision "by the end of next week" in a lawsuit pitting Democratic Gov. Roy Cooper against Republican legislative leaders over changes to state and local elections boards.
  • The same panel issued an injunction on Nov. 30 against changes tied to Senate Bill 749. The measure would replace elections boards weighted toward the governor's political party with new boards split evenly between the two major parties.
  • SB 749 also would shift appointments from the governor to Republican and Democratic legislative leaders.
  • The case has no impact on the March 5 primary election.

A three-judge panel overseeing Gov. Roy Cooper’s lawsuit against proposed changes to North Carolina’s state elections board could issue a decision by March 8. The panel predicted a decision “by the end of next week” after holding a 75-minute hearing Wednesday.

The decision will arrive after Tuesday’s primary election.

The same panel — Superior Court Judges Edwin Wilson, Lori Hamilton, and Andrew Womble issued an injunction on Nov. 30 blocking elections board changes spelled out in Senate Bill 749.

The legislation, passed by the Republican-led General Assembly over the Democrat Cooper’s veto, would replace the current five-member elections board with an eight-member board. Rather than a 3-2 majority favoring the governor’s party, the new board would give each major party four seats. Appointments would move from the governor to Republican and Democratic legislative leaders.

“They are saying that it’s OK for the General Assembly to enact a law and then appoint the people who will carry out the law,” argued Jim Phillips, Cooper’s private attorney. “That is exactly the accumulation of power” the separation-of-powers doctrine is designed to prevent, he added.

“To me, it’s seventh-grade North Carolina civics,” Phillips said.

Martin Warf, representing Republican legislative leaders, argued that Cooper cannot demand appointment authority when a state law does not provide it. Warf questioned Cooper’s argument that previous court cases say the governor is required to have control over executive branch agency decisions.

“Where does that go?” Warf asked. “Would it apply to the secretary of state? Would it apply to the treasurer?”

The secretary of state and treasurer are two of nine statewide elected executive branch officers who do not report directly to Cooper.

Questions from the bench suggested that judges were skeptical that the elections board case could be distinguished from earlier state Supreme Court decisions favoring Cooper and  Republican predecessor Pat McCrory. In those cases, courts ruled that the General Assembly violated the separation of powers when taking authority away from the governor.

Judges are likely to decide the case without a trial. Cooper and state legislative leaders have filed competing motions to end the legal dispute.

Lawyers for Cooper filed a motion for summary judgment. Lawyers for top Republican lawmakers filed a separate motion to dismiss Cooper’s lawsuit.

The new elections board spelled out in SB 749 had been scheduled to take effect on Jan.1. With the judges’ decision to issue a preliminary injunction last fall, 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 not to dismiss 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.

In addition to the state board changes, the law would create an even split between the major parties on county elections boards. Appointments to those boards also would shift to the General Assembly.

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.

“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 lawsuit 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.