In a 4-3 ruling along party lines, the N.C. Supreme Court on Friday ruled for Democratic Gov. Roy Cooper in the lawsuit between the governor and General Assembly leadership over the Bipartisan State Board of Elections and Ethics Enforcement.
The decision overturns a unanimous October 2017 ruling from a trial court panel of two Democrats and one Republican. That ruling had favored the General Assembly.
Writing for the majority, Democratic Justice Sam Ervin IV said the 2017 legislation creating the merged board interfered with the “governor’s ability to faithfully execute the laws” as outlined in the state constitution. The court said the law violated the separation-of-powers provision in two ways: the 50/50 partisan split of board members and its insistence that the executive director of the former State Board of Elections keep the top staff position in the newly combined agency.
The board would hamstring the governor, the court said,
because he or she is required to appoint half of the commission members from a list of nominees consisting of individuals who are, in all likelihood, not supportive of, if not openly opposed to, his or her policy preferences while having limited supervisory control over the agency and circumscribed removal authority over commission members.
All three Republican justices ruled against Cooper. In a dissent written by Chief Justice Mark Martin and joined by Justice Barbara Jackson, the justices said giving the governor’s party half the appointments on the new board did not limit his ability to execute the laws.
Martin noted the majority’s reliance on an earlier court case that pitted the General Assembly against Cooper’s predecessor, Republican Pat McCrory. “The majority purports to simply apply McCrory but, like a funhouse mirror, distorts it instead.”
In a separate dissent, Justice Paul Newby said the General Assembly “has the [constitutional] authority to create an independent, bipartisan board to administer the laws of elections, ethics, lobbying, and campaign finance.” This was a policy dispute and not a constitutional issue, he said.
This marks the first time the current Supreme Court has split along partisan lines on an issue involving a partisan political matter, and the third time the court has split 4-3 along partisan lines. The governor now can appoint members to the State Board of Elections under its earlier five-member structure, with three members coming from the governor’s party and two from the opposing party.
During a December 2016 special session, the General Assembly passed legislation that merged the elections board and ethics commission. It also required the new board to be split evenly among Democrats and Republicans, with the governor appointing four members and General Assembly leadership appointing the remaining four.
That measure was ruled unconstitutional, but Republican lawmakers soon returned with Session Law 2017-6. The revised bill allowed the governor to appoint all eight members of the new board; the Republican and Democratic parties each would nominate six candidates, and the governor would pick four members from each party. Cooper also challenged the 2017 law as a violation of separation of powers. On Friday, he prevailed.
In a statement, Cooper praised the decision.
“I appreciate the court’s careful consideration. Access to the ballot box is vital to our democratic process and I will continue to protect fair elections and the right of North Carolinians to vote,” Cooper said.