A North Carolina Superior Court panel of judges heard arguments Monday over whether elections board appointments would shift from Gov. Josh Stein to State Auditor Dave Boliek on May 1 as outlined in Senate Bill 382, which became law in December.

The lawsuit is now known as Stein v. Hall or Stein v. Berger, although former Gov. Roy Cooper vetoed the bill in December, which the General Assembly overrode.

The governor is seeking a temporary restraining order and preliminary injunction to block Boliek’s appointments. Stein is a Democrat. Legislative leaders who also oppose Stein’s restraining order and injunctions, as well as Boliek, are Republicans.

Superior Court Judges Edwin Wilson, a Democrat, Lori Hamilton, and Andrew Womble, both Republicans, have been overseeing the lawsuit since Cooper first challenged proposed election administration changes in October 2023.

Legal Arguments on Constitutional Powers

Attorney Jim Phillips, one of Stein’s lawyers, presented his case first. He argued that the governor’s power is written into the state Constitution, and the legislature is trying to change that. If the change is allowed, the General Assembly would be able to change the powers of anyone on the Council of State.

He mentioned the “Take Care Clause” in Article III, Section V of the North Carolina Constitution, which grants the governor significant authority over the executive branch and the enforcement of laws and limits the legislature.

The “Vesting Power Clause,” which refers to the provisions that outline how different government powers are assigned to the legislative, executive, and judicial branches, was also mentioned.

Phillips argued that the General Assembly is pretending that both clauses don’t exist and thinks legislators can do whatever they want to, saying that they could next assign different Council of State members to different roles, and their actions are a violation of the separation of powers between the executive and legislative branches.

Attorney Matthew Tilley, one of the lawyers for the legislature, would later point out that the State Treasurer oversees the State Health Plan, which has nothing to do with the traditional role of being a state treasurer and is a policy decision by the legislature.

Phillips further argued that if power is taken away from the governor, he won’t be able to fulfill his constitutional duty, violating the “Take Care Clause. ” That duty can only be reassigned by a constitutional amendment.

Hamilton asked Phillips what would stop the General Assembly from putting the Board of Elections under another Council of State member if their duties wouldn’t normally correspond with the Board of Elections, adding, “I am hoping that we’re not going to hopscotch around all nine members of Council of State until we finally land on one that would be appropriate to supervise the Board of Elections.”

Phillips replied that he felt like Bill Murray in the movie “Groundhog Day” since he has been litigating this issue since 2016. Wilson replied, “So do we, by the way.”

Phillips continued that the General Assembly has passed six or seven iterations of its elections board changes, including the proposal of a constitutional amendment to remove the governor’s power over the Board of Elections. North Carolinians voted that idea down in 2018.

“This is not the first time where they’ve done what they did this time,” he said. “At the beginning of this, the three-judge panel declared their statute unconstitutional, and before that was appealed, they passed another. It’s like whack a mole. So, I think that what you’re suggesting could happen exactly, and I think that this court needs to lay down a principle that will keep that from happening.”

Womble asked Phillips, “Aren’t you asking us to write it into the Constitution that isn’t there?  Aren’t you asking us to write that into the Constitution … propose a rule? You said if you’re going to do this, there has to be some relation. We can’t do that.”

Phillips later stated that the auditor had nothing to do with elections for 150 years.

Competing Views on Separation of Powers and Partisanship

“Separation of powers isn’t interested in the governor versus the auditor, it’s concerned about the legislative branch versus the executive branch,” Tilley told the judges.

He also added that in other states, election boards are under their secretaries of state.

“In the governor’s words, he’s supervising the auditor, and the auditor makes these appointments, so this case sort of collapses on itself,” said attorney Ellis Boyle, representing Boliek. “When the auditor comes knocking to audit the governor’s agency, he’s just going to tell him to go away because he supervised him, he’s in control, and he doesn’t want the auditor to audit him. So if the vesting clause means something, according to the governor, then he’s not subject to any law that the auditor could use against the governor because he controls the auditor, and that’s not the way the law works.”

Boyle would later add that the state constitution doesn’t say the governor enforces election law and there isn’t a single word in the state constitution about the Board of Elections, which was created in 1901, and there isn’t a separation-of-powers problem.

Hamilton asked Boyle if the legislature could move all the governor’s powers and give them to the auditor. He replied, yes, but that isn’t this case.

“To suggest that this is highway robbery that the General Assembly stole all the power from the governor is not true,” he told the judges. “The governor said he controls all Council of State offices.”

Judge Womble asked would it be the same argument if the legislature loses the case, comes back, and says all Board of Elections officials would now be elected. Boyle said, he doesn’t know how the General Assembly could create elected officials, but philosophically, yes, they could and the governor couldn’t have a word to say about it.

“The governor doesn’t own the Board of Elections,” he said.  

Boyle said under the auditor, the board would be less partisan.

Hamilton said if the General Assembly takes away the power of the governor that has been under that office for decades, it is a slippery slope and she has issues with it, like why is it necessary, and why does it have to happen now?

Tilley agreed with Boyle that it would be less partisan.

Hamilton, however, still had questions.

“It’s Republicans and Democrats, right? Perhaps less public, but if the General Assembly starts stacking up powers and duties under the auditor’s umbrella, it’s going to become very, very public and very, very contested, very, very quickly, so the only reason that is not as partisan as you say is because it doesn’t garner as much attention, but it’s going to start if these powers start being shifted,” she said.

Another lawyer for Boliek said Stein’s lawyers argued that nothing can be taken away from the governor under the “Take Care Clause.”

“It would be the biggest expansion of the ‘Take Care Clause’ we have ever seen,” he said. “It’s something that the state has never had. It would put us much closer to a federal law. They are asking you to add terms to our constitution. That’s a much bigger evil than a slippery slope.”

He advised the judges to leave the issue with the General Assembly.

The judges said they would take the matter under advisement before adjourning.