Gov. Roy Cooper has filed an emergency motion with the state Supreme Court petitioning for reinstatement of a preliminary injunction or issuance of a stay blocking a Court of Appeals ruling to allow the merger of the state Board of Elections and Ethics Commission to proceed.
Cooper contends the General Assembly’s passage of legislation creating the State Board of Elections and Ethics Enforcement violates the separation of powers clause of the state constitution. He argues in court briefs that it strips “certain core executive functions from the governor and shift[s] them to the General Assembly.”
Senate leader Phil Berger, R-Rockingham, was pleased with the legal turn of events.
“We appreciate the Court of Appeals staying the lower court’s preliminary injunction while it considers the important issues raised in our recent appeal,” Berger told Carolina Journal on Friday.
On Thursday, the Court of Appeals ruled against Cooper and in favor of Berger and House Speaker Tim Moore, R-Cleveland, in issuing a temporary stay of a Wake County trial court decision.
The stay froze a preliminary injunction by the trial court that blocked the new law from taking effect. The Appeals Court said that while the preliminary injunction is suspended it would consider the General Assembly’s appeal to dissolve it.
In his emergency motion to the Supreme Court, Cooper said the trial court “correctly concluded” he would win his suit on the merits because the separation of powers violation he alleges would usurp his executive responsibility to carry out the state’s election laws, and would impose irreparable harm.
Cooper argues that the Court of Appeals action allows the General Assembly to “destroy the very executive agency the Governor seeks to preserve with this action.” That dismantling of the State Board of Election “may begin immediately” and would be “difficult, if not impossible, to undo.”
Cooper unsuccessfully made similar arguments to the Court of Appeals when objecting to Berger and Moore’s request for the stay of the trial court order.
Legislation to create the new State Board of Elections and Ethics Enforcement was passed amid rancorous debate late last year.
The new eight-member board would be evenly split between Democrats and Republicans. Four members would be appointed by the governor, and two each by the House Speaker and Senate leader. It requires county elections boards to be four-member bodies, with two Democrats and two Republicans. The new board would be constituted and operational by May 1.
Republicans said during debate on the bill that making the board bipartisan removes the “taint” of political gamesmanship from its operations.
Cooper contends the new agency strips him of the executive power he had in overseeing the previous Board of Elections. He appointed all five of its members.
The new agency requires a supermajority of six members to take action or even to agree to meet. Since four members would be appointed by the General Assembly, and his four appointments is shy of the supermajority number, the rearrangement takes away his executive control of the agency, Cooper argues.
Meanwhile, WRAL.com reported that the state Ethics Commission delayed for several hours its scheduled meeting on Friday. It convened later as the new State Board of Elections and Ethics Enforcement but failed to take action after meeting in an extended closed session.
Dan E. Way (@danway_carolina) is an associate editor of Carolina Journal.