Republican lawmakers in North Carolina have legitimate grievances against the Democrat-controlled State Board of Elections. The latter has abused its power in overtly partisan ways in recent years, most egregiously by striking a collusive settlement with Democratic attorney Marc Elias and Democratic Attorney General Josh Stein in 2020 to change our election procedures in direct contravention of election laws enacted by the General Assembly.
The North Carolina Constitution clearly places the legislature in charge of writing our laws on such matters as voter registration, electoral districts, and voting procedures. Stein and the State Board were subsequently chastised by federal judges for their “arbitrary” and “flagrant” departures from the rule of law and the separation of powers.
Alas, Republican lawmakers are responding to this debacle by violating the separation of powers.
Senate Bill 749 would add three appointees to the North Carolina State Board of Elections, giving it eight members. The bill would also remove a member from each county board of elections, making them four-person panels. All boards would include an equal number of Republicans and Democrats. Advocates argue this will encourage more bipartisan cooperation. Detractors argue it will produce constant, bitter deadlocks.
As a practical matter, most elections boards already make most decisions by consensus. I think the detractors are exaggerating their case, and that there could be some salutary effects on the state board, in particular. But who gets to pick the board members? And who gets to resolve deadlocks?
Senate Bill 749 offers bad answers to these good questions. Right now the governor picks the members of the state board, three Democrats and two Republicans, from among four nominees offered by the Democratic Party and four from Republicans. Under the proposed change, the highest-ranking legislators in each chamber — president pro tem and minority leader in the Senate, speaker and minority leader in the House — would each pick two members, producing the 4-4 split. The bill also treats nominations from state parties as advisory. Legislative leaders aren’t required to choose from among them.
As for the 100 county boards, the State Board of Elections currently picks four of the five members, with the governor picking a fifth as chair. Under Senate Bill 749, it would again be the four legislative leaders who populate the local boards.
Whatever the merits of bipartisan boards might be, this is a flatly unconstitutional way of selecting and governing them. The administration of elections is an inherently executive function. And when these boards hear complaints about or challenges to electoral procedures and outcomes, they are acting in either executive or quasi-judicial roles, depending on how you define it, but certainly not legislative ones.
I’ve written before about the North Carolina Supreme Court’s 2016 decision in McCrory v. Berger, which rejected a legislative attempt to determine the majority composition and operation of administrative boards. The court didn’t rule that only the governor has a legitimate role in filling administrative offices. Indeed, the author of the majority decision in 2016, former Chief Justice Mark Martin, wrote a dissent in 2018 upholding a prior version of a bipartisan elections board.
Martin did so, however, because that prior version retained gubernatorial appointment of the new eight-member State Board of Elections. That bill simply required that the governor appoint no more than four members from his own party. It also allowed the governor to remove any member of the board for “misfeasance, malfeasance, or nonfeasance.”
Lawmakers could comply with the state constitution by substituting this prior language for filling the reconstituted state and local elections boards. Or they could assign the appointments to some other executive, such as the secretary of state, perhaps with Senate confirmation (also expressly permitted by the constitution).
What they can’t do is give lawmakers the power to appoint all the members (and to resolve deadlocks over, say, personnel decisions, as Senate Bill 749 currently does). Not if legislative leaders want to uphold the very separation of powers they have previously — and commendably — championed.