News: Quick Takes

Court says merged elections/ethics board is constitutional

From left, Superior Court judges Todd Burke, Jesse Caldwell, and Jeffery Foster hear arguments in March in a lawsuit filed by Gov. Roy Cooper arguing that legislation passed during a December special session violates the separation of powers. (CJ photo by Don Carrington)
From left, Superior Court judges Todd Burke, Jesse Caldwell, and Jeffery Foster hear arguments in March in a lawsuit filed by Gov. Roy Cooper arguing that legislation passed during a December special session violates the separation of powers. (CJ photo by Don Carrington)

A three-judge Superior Court panel has dismissed the lawsuit between Gov. Roy Cooper and the General Assembly over the Bipartisan State Board of Elections and Ethics Enforcement.

The panel unanimously ruled it did not have jurisdiction to address the lawsuit between the governor and state lawmakers — but even if it did, it would have ruled in favor of legislators.

“The text of the Constitution makes clear that the power to alter the functions and duties of state agencies is reserved to the legislature through its lawmaking ability and to the governor through executive order subject to review by the legislature,” the court order reads.

“We appreciate the court’s thoughtful and well-reasoned decision rejecting Roy Cooper’s attempts to drag his political battles into the courtroom, and we encourage him to abandon taxpayer-funded lawsuits and follow the bipartisan elections and ethics board law,” said Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, in a joint statement.

The General Assembly passed legislation during a December special session the court struck down — in part because the governor would not control appointments to the board. This year, the legislature passed Session Law 2017-6 (aka Senate Bill 68), merging the Board of Elections and the Ethics Commission into a new eight-member board with equal Republican and Democratic representation, as did last year’s legislation.

Unlike last year’s law, the governor would choose board members from a list of names provided by the state Democratic and Republican parties.

Cooper sued, arguing the law violated his constitutional power to control the makeup of the election board. While the law requires Cooper appoint all eight members of the board, he has refused to do so while the case is pending.

The Superior Court panel rejected the lawsuit with scant explanation, but in September the North Carolina Supreme Court gave the lower court 60 days to reconsider the case and explain why it arrived at its conclusion.

Tuesday, the lower court came to the same outcome as before — with the explanation that the Constitution’s separation-of-powers provision left this type of policymaking in the hands of the General Assembly.

Once again the lawsuit between Cooper and the General Assembly will go to the N.C. Supreme Court.

“The three-judge panel recognized that Governor Cooper’s demands would undermine the independence of our elections and ethics enforcement,” said Rep. David Lewis, R-Harnett, the top elections official . “A governor having the ability to completely control the members of the board that investigates his campaign and administration would make a mockery of the ethics reforms North Carolina has enacted since 2006. I’m grateful to see that this court saw through the political rhetoric and upheld the new Bipartisan Elections and Ethics Board.”

In a statement, Cooper spokesman Ford Porter noted a recent constitutional amendment proposed by legislative leaders requiring judges to stand for election every two years.

“Republican leaders in the legislature have issued sharp threats to our state’s judges. This case will ultimately be decided by our state’s Supreme Court and we have confidence that the justices will disregard this intimidation, apply our state’s constitution, and declare this law unconstitutional,” Porter said.