News: CJ Exclusives

Legislation restructuring elections/ethics boards turns back the clock

Gov. Roy Cooper in June 2017 (CJ file photo)
Gov. Roy Cooper in June 2017 (CJ file photo)

The nearly two-year battle over the Bipartisan Board of Elections and Ethics Enforcement may come to a close soon with the General Assembly essentially handing Gov. Roy Cooper a victory in the separation-of-powers struggle.

Lawmakers approved legislation Wednesday, Dec. 12, to return the elections and ethics boards to two separate agencies with the governor having majority appointment power over the elections board — the situation which existed before December 2016, and after a host of legal actions pitting the legislature against the governor.

Jonathan Kappler, executive director of the North Carolina FreeEnterprise Foundation, said it doesn’t look like the Republican leadership is interested in continuing this particular battle.

“I think the fact that we’re seeing the return in almost all aspects of the previous structure seems to be a kind of reluctant admittance by the Republican General Assembly that they’re not going to succeed,” Kappler said.

Andy Taylor, a political science professor at N.C. State University, said the Republican leadership likely figured it wasn’t worth spending too much political capital on the elections/ethics board with questions over voter ID legislation still in the works.

“This might be an admission that nothing else can really be done,” Taylor said. “Much of the focus of the lame-duck session has been on what form the voter ID bill was going to take. The Republican majority realized that’s where the big fight with Cooper was going to be.”

Kappler said this lame-duck session has set a different tone than the previous one when Cooper was elected.

It was during a 2016 lame-duck session that Republican lawmakers passed a bill merging the elections and ethics board into one bipartisan board and stripped the governor’s ability to appoint a majority. The governor sued and argued the changes violated his constitutional appointment powers. The courts agreed and ruled the board unconstitutional.

The General Assembly placed a constitutional amendment on this fall’s ballot to keep the merged board in place, but the measure didn’t pass.

Even so, Republican lawmakers weren’t happy with the outcome of the elections-board battle. They introduced House Bill 1029 to essentially turn the clock back to before the 2016 lame-duck session, perhaps, as Taylor suggested, admitting more court fights weren’t worth the trouble.

“This bill makes every effort to comply with the court’s ruling and gives Governor Cooper the partisan control over the State Board of Elections that he has sued for,” Rep. David Lewis, R-Harnett, said.

The Superior Court panel overseeing the legal battle over the board has delayed dissolving it, giving lawmakers time to come up with a legislative fix. At first the courts gave legislators until Dec. 12 to pass new legislation, but the court agreed to extend the deadline to Dec. 28 because of the ongoing investigation into alleged absentee ballot irregularities in the 9th Congressional District.

Under the bill, the governor would appoint all five members of the State Board of Elections. No more than three members can be from the same party. The governor would also appoint the chairs of all 100 local elections boards.

H.B. 1029 passed with bipartisan support, with only a handful of Democratic legislators and a few Republicans voting against the measure. Kappler said this doesn’t give the governor much room to oppose the bill.

“For those that are looking for clues as to what the next two years are going to look like, I think this lame duck session is somewhat hopeful in the sense that it seems as if the Republican lead General Assembly is certainly going to pursue their policy objectives,” Kappler said. “But there seems to be a recognition that the political dynamic has shifted in Raleigh.”

After the 2018 midterm, Republicans lost their veto-proof majorities and now Kappler said they are going into the next session with a weaker hand than they did when Cooper was initially elected.

“They will have to negotiate with Democrats and factor in those perspectives when they’re legislating,” Kappler said.