Court enforces stay so election can proceed without disruption

A three-judge Superior Court panel expanded the scope of the temporary enforcement delay it ordered in a case striking down the Bipartisan State Board of Elections and Ethics Reform on constitutional grounds.

The latest ruling, released Monday, Oct. 22, prevents disruption of the Nov. 6 general election.

The judges hearing the Cooper v. Berger lawsuit issued a preliminary injunction Oct. 16 nullifying the law passed by the General Assembly to create the new elections board system. They said it violated the governor’s duty to faithfully execute laws.

Monday’s broader stay followed concerns raised by the state elections board at an Oct. 17 meeting that the court’s decision “cast substantial legal concerns” on the ability of county boards of elections to operate because the stay did not cover them.

Lawyers for both sides of the separation-of-powers case petitioned the panel Oct. 19 to broaden its order beyond the state board.

“The Court did not stay the permanent injunction as to the enforcement of the remaining parts of the Order,” the attorneys wrote. “Accordingly, absent a stay, the portions of the Order relating to the Executive Director of the State Board and relating to county boards of elections, among other things, are in effect,” meaning their positions were no longer lawful.

The State Board is required to certify the results of the general election 27 days after Election Day. That deadline is Dec. 3.

The petition states both sides agreed “in this unique circumstance, it is appropriate and in the best of interests of the State for the Court to enter a stay of the Order in its entirety, for a limited period of time. The requested stay will ensure that the State Board and the county boards of election, as currently constituted, can remain focused on the fair and effective administration of the 2018 elections.”

In its order Monday, the panel said because good cause had been shown, and in order to maintain the status quo of the election, it will place a stay on the rest of the injunction. Barring another extension by the panel or an appellate court, the temporary hold would expire midnight Dec. 3.