Opinion: Daily Journal

Elections/ethics board ruling could be bad news for governor

If a Democratic-led Supreme Court overturns a Democratic-led trial court to help a Democratic governor, it'll look like a partisan hit job

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)

Earlier this week, a three-judge state Superior Court panel delivered what may be a body blow to part of Gov. Roy Cooper’s goal of reclaiming power from the Republican-dominated General Assembly.

The state Supreme Court soon may bring a haymaker — while staying faithful to its constitutional duties as an impartial arbiter of the proper roles of the three branches of state government.

The Superior Court panel ruled Tuesday in Cooper v. Berger, which the governor filed challenging the legislature’s authority to merge the state’s elections board and ethics commission.

The Supreme Court now has the lawsuit. If the justices use the same restraint their Superior Court colleagues exercised, the courts will demonstrate a level of independence from partisan squabbling that all North Carolinians deserve.

The history of the dispute is important.

Senate Bill 68 passed in April. It created the new Bipartisan State Board of Elections of Ethics Enforcement, not only combining the two agencies but also modifying the way the merged board’s members are selected.

S.B. 68 replaced Senate Bill 4, passed during the frenzy of last year’s pre-Christmas special sessions. Like S.B. 68, S.B. 4 merged the elections and ethics boards. But it left half the appointments to the new eight-member board in the hands of the governor, and half with the leaders of each chamber of the General Assembly.

Cooper sued, saying the law was unconstitutional. He argued it violated separation of powers, giving the governor too little control over what mainly is an executive branch agency. The three-judge panel — the same judges who ruled against Cooper on Tuesday — agreed and tossed S.B. 4.

S.B. 68 soon followed. Under it, the governor appoints all eight members of the board, from lists provided by the political parties: four from a Democratic list, and four from a Republican list.

Cooper vetoed S.B. 68. The legislature passed it over his veto, leading to the current court fight.

Initially, the Superior Court panel wanted nothing to do with this lawsuit. It said it lacked jurisdiction. Cooper’s lawyers appealed to the Supreme Court.

The Supreme Court, in a unanimous order written by Justice Mike Morgan, said to the panel: Not so fast.

Tell us why you think you don’t have jurisdiction to decide this case, the justices said. And if you did, which side would prevail, and why? Then send the case back to us and let us resolve it.

On Tuesday, the Superior Court panel did just that. The judges — two Democrats and one Republican — said the makeup of state boards and commissions is a political question to be decided by the legislature and the governor, rather than a court. We don’t have jurisdiction.

But if the court had to rule, the three judges said they would throw out Cooper’s challenge. The governor gets to choose all members to the new board, so the law doesn’t violate separation of powers.

Although the new board would have eight members, divided equally among the major parties, a 4-4 tie vote might cause a political headache, but it wouldn’t violate any part of the Constitution.

The case is back at the Supreme Court. Like the Superior Court panel, its majority is Democratic. When Tuesday’s decision came out, Cooper’s spokesman Ford Porter tried to work the refs.

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.

Here’s the problem: If the Supreme Court votes 4-3 along party lines as Porter and Cooper desire, the legal reasoning won’t matter. A reasonable observer could view the decision — one Democratic court overturning another to give a victory to a Democratic governor — as partisan hackery.

Conservatives and Republicans could indeed portray the court as “legislators in robes.” The GOP’s incentive to push that constitutional amendment — which I see as unwise and impetuous in its current form — would surge. We may end up with a chaotic 2018 judicial election, with every judge in the state on the ballot and no primaries.

Any hope of adopting the merit or appointment-based selection of judges, eagerly sought by Republican Chief Justice Mark Martin and most of the legal community in the state: Gone.

For the record, Senate leader Phil Berger, R-Rockingham, one of the defendants in the current lawsuit, is friendly to some type of merit selection process. For now, anyway.

As they say in the courtroom dramas, let’s stipulate that S.B. 4 and S.B. 68 are partisan political power moves. But guess what? The General Assembly has the constitutional authority to make those moves. Even if they’re short-sighted or spiteful.

A court charged with reviewing the legality of S.B. 68 said, correctly: We’re not policymakers.

The justices of the Supreme Court should agree.