Gov. Roy Cooper is about to start howling again. Republicans in the General Assembly are once again proposing the creation of an evenly split North Carolina State Board of Elections, along with evenly split local boards of elections in each and every county.

While Cooper will wildly claim this is an attempt to rig elections, voters are likely to see an evenly split board of elections as sound public policy that will force consensus on the proper administration of election procedures. Major decisions on invalidating elections, emergency procedures, and voting locations will have to be negotiated and decided on a bi-partisan basis. It is a reasonable policy that provides protection for both major political parties.

However, if successful, this move will strip significant power from Cooper and his successors in the Governor’s Mansion.

And that is part of the point.  

The legislature already began the process of reestablishing its appointment powers this session with Senate Bill 512, which shifts appointment powers at nine key boards and commissions, including the N.C. Utility Commission, which regulates Duke Energy and other utilities; the Board of Transportation, which makes road funding decisions; and the Environmental Management Commission, responsible for regulations involving air and water quality.

Republicans passed similar bi-partisan election board measures in 2017, but in a 4-3 ruling along party lines, a Democrat-controlled N.C. Supreme Court ruled for Democratic Gov. Roy Cooper in the lawsuit between the governor and General Assembly, blocking the creation of a fully bi-partisan Board of Elections.

The Democrat court ruled that the governor had a constitutional right to appoint a majority of members to boards of elections so he could faithfully execute the laws of North Carolina.

The N.C. Supreme Court decision blocking the evenly split board of elections relied heavily on a previous case that also expanded the powers of the chief executive at the expense of the legislative branch.

In McCrory v. Berger (2016), the North Carolina Supreme Court held that legislative appointments to executive branch agencies may, in some circumstances, violate the Separation of Powers provision of the North Carolina Constitution. The Court held that the three commissions before the court (the Coal Ash Management Commission, Oil and Gas Commission, and Mining Commission) had been improperly constituted as a result of the legislative appointments to those commissions. Former Republican Gov. Pat McCrory, joined by former Governors Hunt and Martin, brought the complaint.

In the eyes of the legislature, McCrory v. Berger was wrongly decided and shifted too much power from the legislature to the governor. It’s important to remember that this battle may seem like a partisan battle under North Carolina’s current divided government, but these battles are as old as the state itself. It was a Republican governor, Pat McCrory, that sued a Republican legislature in McCrory v Berger. That critical and controversial decision was written by Republican Chief Justice Mark Martin.

Based on his dissents in previous cases, Chief Justice Paul Newby, a Republican, seems predisposed to allow a rebalance of power to the General Assembly, the branch closest to the people.

Justice Newby was the only dissenting justice on the key holding in McCrory v. Berger.

“The idea of one branch of government, the judiciary, preventing another branch of government, the legislature, through which the people act, from exercising its power is the most serious of judicial considerations,” Newby wrote in his dissent.

“To overturn a law of the people acting through the General Assembly, the Court must find an express constitutional violation beyond a reasonable doubt,” Newby wrote.

Based on his judicial philosophy, Newby is likely bothered by the lack of clarity provided by McCrory v. Berger. While the court found that some legislative appointments can violate the separation of powers, there is no bright-line test that the legislature can follow in setting up boards and commissions.

“We cannot adopt a categorical rule that would resolve every separation of powers challeng(ing) the legislative appointment of executive officers,” Chief Justice Mark Martin wrote for the court.

This type of unclear “Goldilocks standard” that only the court can decide on a case-by-case basis, is exactly the type of judicial entanglement in the lawmaking process Newby believes should be avoided.

North Carolina does not have three co-equal branches of government. By design, the legislature is the dominant branch, and has been since the state’s founding. Newby knows that and believes the state constitution demands it.

Unlike even some of his Republican predecessors, Chief Justice Newby believes the role of the judiciary in our constitutional system should be reduced, not expanded.

However, for a state that since its inception has loathed executive power, the powers of North Carolina’s chief executive have grown substantially over the last four decades.

North Carolina’s first constitution in 1776 provided for a governor to be elected by a joint vote of both houses of the General Assembly to serve a one-year term. From its inception, the office of governor in North Carolina was weak in its powers, largely restricted out of fear of the actions taken by British colonial governors.

In 1977, voters amended the State Constitution to allow governors to serve two consecutive four-year terms.

In 1996 voters further amended the constitution to create the gubernatorial veto.  

Not that North Carolina’s governor is particularly powerful. A veto can be overridden with 60% of the legislature (3/5), unlike many states and Congress which must cross the 2/3 threshold to override. Unlike the vast majority of states, the North Carolina governor does not have a line-item veto.

As of 2018, North Carolina’s governor was considered the second weakest in the nation.

It is worth noting that while the legislature proposed and the voters approved strengthening the governor’s role in 1977 and 1996, it was the court and the court alone that has shifted powers away from the legislature and to the chief executive over the last decade.  

However, what the courts giveth the courts can taketh away. And the increased appointment power given to North Carolina governors in McCrory v. Berger is being tested and is likely headed for reversal, tipping the scales back to Jones Street and away from the Executive Mansion.