Lawmakers appealing elections board ruling favoring Cooper

Carolina Journal photo by Mitch Kokai

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  • State legislative leaders filed a notice of appeal Tuesday in a dispute with Gov. Roy Cooper over changes to the North Carolina State Board of Elections.
  • A unanimous bipartisan three-judge Superior Court panel struck down changes legislators made to the elections board's structure.
  • Senate Bill 749, enacted into law over Cooper's veto, would replace the current five-member elections board with an eight-member board. Rather than a 3-2 majority favoring Cooper's Democratic Party, the new board would be spiit evenly between the two major parties.

Top legislative leaders will ask the North Carolina Court of Appeals to review a three-judge panel’s ruling favoring Gov. Roy Cooper in a legal fight over the State Elections Board. Lawmakers filed a notice of appeal Tuesday, the same day the public learned about the panel’s decision.

Republicans outnumber Democrats, 11-4, on the state’s second-highest court. The Court of Appeals considers cases in three-judge panels.

Superior Court Judges Edwin Wilson, Lori Hamilton, and Andrew Womble issued an order Friday striking down elections board changes incorporated last year in Senate Bill 749. Wilson is a Democrat. Hamilton and Womble are Republicans.

The bipartisan panel’s decision means the current five-member elections board with a 3-2 Democratic majority remains in place.

Court records show the order was filed Monday. It appeared on a publicly accessible court website by Tuesday morning.

The same panel issued an injunction against the election board changes in November.

The judges’ latest order accused Republican legislative leaders of “stark and blatant removal of appointment powers” from the Democratic governor.

SB 749 would have replaced the current elections board, with a 3-2 majority weighted toward the governor’s party, with an eight-member board split evenly between the two major parties. County elections board also would have been split evenly between the two parties. Appointment power for the boards would have shifted from Cooper to Republican and Democratic legislative leaders.

“Because the State Board and County Boards exercise executive functions, the question becomes whether the Governor, under the Session Law, has sufficient control,” according to the order.

“Without explicitly defining ‘control,’ it is still clear that the Session Law [SB 749] infringes upon the Governor’s constitutional duties,” the judges wrote. “First, all appointment powers were removed from the Governor and given to the General Assembly for the State Board and the County Boards.”

“Second, Defendants have the final decision on the Chair and Executive Director of the State Board if the members are unable to reach a majority decision. Similarly, if the County Board members cannot reach a decision on their Chair, the General Assembly selects the Chair,” the order continued.

“Finally, the Governor has no power to remove members of the State Board and County Boards, whether for lack of attendance or for cause,” the judges wrote. “Defendants’ actions are the most stark and blatant removal of appointment power from the Governor since McCrory and Cooper I.”

McCrory and Cooper I are the names of two precedent cases involving separation-of-powers disputes between governors and legislative leaders.

The panel held a 75-minute hearing in the case on Feb. 28.

“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.

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. Republican legislators approved the new elections board through SB 749 after overriding a Cooper veto.

The governor argued that 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.