North Carolina House Speak Tim Moore and Senate President Pro Tempore Phil Berger have filed a notice of appeal after a three-judge panel unanimously struck down Session Law 2023-139 (Senate Bill 749), the law making the North Carolina State Board of Elections bipartisan and granting the General Assembly appointment power for that board.
The next stop for the case, known as Cooper v. Berger II, will likely be the North Carolina Supreme Court. While legislative leaders hope that the state’s high court will eventually overturn the appeals court ruling, it might be better for the court to split the questions, addressing each one separately. The court could then recognize the General Assembly’s authority to set the structure of the board and preserve the executive branch’s prerogative to appoint at least half of the board’s members.
The state Supreme Court already dealt with the former question in Cooper v. Berger I, a case decided in 2018. In that ruling, narrowly split 4-3 along partisan lines, the court found that sections of a law that created a bipartisan elections board “impermissibly interfere with the Governor’s ability to faithfully execute the laws.”
That ruling built on and distorted a 2016 ruling in McCrory v. Berger, a 6-1 decision that held that granting the General Assembly majority appointment power for executive agencies would “nullify the separation of powers clause [Article I, Section 6 of the North Carolina State Constitution], at least as it pertained to the General Assembly’s ability to control the executive branch.” The distortion in Cooper v. Berger I was that the court overturned the bipartisan board even though the governor retained the appointment power protected in McCrory.
The court’s composition has dramatically changed since then. Republicans swept all Supreme Court justice races in the two elections since the Cooper v. Berger I decision and now hold a 5-2 majority. And the lone dissenter in McCrory v. Berger, Justice Paul Newby, is now the chief justice.
Given the court’s new composition, it could completely repudiate Cooper v. Berger I by declaring that both making the Board of Elections bipartisan and shifting appointment power entirely to the General Assembly comport with the state constitution. It would be more prudent for the court to separate those questions, however, maintaining the executive branch’s appointment power while recognizing the General Assembly’s authority to set the board’s composition.
The State Board of Elections is an independent body that performs an executive function, executing election laws. That puts it within the governor’s purview under Article III, Section 5(4) of the state constitution, which calls on the governor to “take care that the laws be faithfully executed.” SB 749 eliminates the governor’s constitutional role in enforcing election laws through appointing board members, a role the court upheld in McCrory
The composition of the state board is a different matter, however, and it should be considered separately from the question of who controls the appointments.
It is well within the legislature’s authority under Article III, Section 5(10) of the North Carolina Constitution to organize state government agencies. That includes the authority to make the State Board of Elections bipartisan instead of the current arrangement of granting the governor’s party majority control. As Chief Justice Mark Martin wrote in his Cooper v. Berger I dissent, giving the governor “enough control over the Board to avoid violating the separation of powers clause” does not require giving the governor “unlimited or unbridled control.” A bipartisan board does not cut the executive branch out of the process of enforcing election laws, especially if it retains appointment power.
The General Assembly could even remove the governor from the appointment process as long as the executive branch retained appointment power. For example, since SB 749 housed the elections board within the Department of the Secretary of State, they could transfer appointments to the secretary of state (an office currently held by Democrat Elaine Marshall).
Separating the questions of appointment power and the composition of the State Board of Elections would allow the North Carolina Supreme Court to uphold the separation of powers while recognizing the General Assembly’s authority to organize government.