Latest Cooper v. Berger lawsuit targets bipartisan election board bill

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  • Gov. Roy Cooper has filed another lawsuit in state court against North Carolina's top legislative leaders. This one targets a new creating an eight-member state elections board with an even split between Democrats and Republicans.
  • Cooper's suit argues that the law violates state constitutional protections of the separation of government powers.
  • The governor's party currently holds a majority of both state and county election board seats.

Gov. Roy Cooper has filed another lawsuit in state court against top legislative leaders. His latest complaint targets a bill that creates an even split between Democrats and Republicans on the state elections board.

Cooper announced the suit, titled Cooper v. Berger, Tuesday. It’s the same day a three-judge Superior Court panel was assigned to hear another Cooper v. Berger case. That suit challenges state legislation removing some of the governor’s appointment powers.

The new complaint targets Senate Bill 749, which “would gridlock North Carolina elections and violate the separation of powers,” according to a news release from Cooper’s office. The bill approved on Oct. 10 over the governor’s veto creates an eight-member state elections board. Legislative leaders from both parties would appoint board members. The board would have an even number of Democratic and Republican appointees.

Local elections boards also would be split evenly between the two major parties. Under current law, the governor’s party holds a majority of seats on state and county elections boards.

“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 from his office. “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 complaint targets Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland. The suit 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.

The latest Cooper v. Berger suit arrives one week after the governor filed suit over legislation removing some of his appointment powers.