- Gov. Josh Stein and top legislative leaders are both seeking summary judgment in their legal dispute over changes to the North Carolina State Board of Elections.
- If a court grants summary judgment to Stein or top lawmakers, the case would not go to trial.
- Stein is challenging the section of 2024's Senate Bill 382 that shifted administration and appointment power over the state elections board to new State Auditor Dave Boliek, a Republican.
Democratic Gov. Josh Stein and Republican legislative leaders both hope to win their clash over state elections board changes without going to trial. Stein and top lawmakers filed competing motions for summary judgment in the case this week.
The case now titled Stein v. Berger challenges the section of 2024’s Senate Bill 382 that shifts administration of the State Board of Elections to new State Auditor Dave Boliek, a Republican.
The governor now has appointment power over the five members of the state elections board, based on recommendations from leaders of the state Democratic and Republican parties. He can appoint no more than three members from one party, effectively giving the governor’s party a 3-2 majority.
Under SB 382, that appointment power would shift to Boliek. The auditor also would appoint a chairman for all 100 county election boards. The change is scheduled to take effect July 1.
“Among its many provisions, Senate Bill 382 contained the General Assembly’s sixth attempt in nine years to divest the Governor of authority to supervise the administration of North Carolina election law,” Stein’s lawyers wrote Tuesday. “For the first time in the State’s history, and in an approach unique among all fifty States, the General Assembly assigned complete authority to appoint, supervise, and remove members of the State Board of Elections and the chairs of all 100 county boards of election to the State Auditor, an official whose authority is dependent on the General Assembly and who has no constitutionally assigned duty to faithfully execute the laws.”
A three-judge Superior Court panel ruled in 2023 against the General Assembly’s previous attempt to restructure the elections board and shift power over board appointments. Previous Gov. Roy Cooper, also a Democrat, filed suit to block the change.
“This Court — in this very case — already held unconstitutional the General Assembly’s effort to strip the previous Governor of authority over the administration of election laws by assigning to itself the power to appoint, supervise, and remove members of the State Board and county boards. The same result is required here,” Stein’s lawyers wrote.
“If the General Assembly is allowed to transfer authority over the execution of election laws to the State Auditor, the General Assembly can prevent the Governor from exercising the supreme executive powers vested in him by the North Carolina Constitution and fulfilling his constitutional duty to ‘take care that the laws be faithfully executed,’” the brief continued.
“Fundamentally, the General Assembly here claims a power to — on its whim — transfer any executive duty or power from the Governor to any other executive official that it favors more,” Stein’s lawyers argued. “The Constitution, however, does not allow the legislature to exert that ‘degree of control … over the execution of the laws.’”
“If the General Assembly has free rein to reassign enforcement of a particular set of laws to its preferred executive-branch official at any time, the legislature can, in effect, control how the law is enforced,” the governor’s lawyers argued. “That is paradigmatic executive-branch power.”
“This time, it is the administration of election laws assigned to the Auditor, but next time it could be election laws to the Treasurer, agricultural laws to the State Superintendent of Public Instruction, or transportation laws to the Commissioner of Labor. The separation of powers mandated by our Constitution forbids such legislative interference,” Stein’s lawyers wrote.
“The General Assembly’s flexibility to assign duties to the Council of State is not absolute,” the governor’s brief added. “The General Assembly cannot ignore the powers and duties expressly vested in the Governor alone. Nor can it disregard entirely the State Auditor’s historical role and responsibilities or the settled expectations of the voters who elected the State Auditor based on his qualifications to execute certain functions.”
“For these reasons, the General Assembly can assign the State Auditor duties and powers to conduct independent reviews of state agencies, including the State Board and county boards of elections. But it cannot grant the State Auditor final executive authority over implementation of the election laws,” Stein’s lawyers explained.
Lawyers for state Senate Leader Phil Berger, R-Rockingham, and House Speaker Destin Hall, R-Caldwell, countered Stein’s arguments in their own motion for summary judgment.
“After years of litigation by the Governor and his predecessor seeking to block reforms to the State Board of Elections, the General Assembly availed itself of an option expressly granted to it under our Constitution and transferred the Board of Elections to the State Auditor and gave the Auditor power to appoint the Board’s members,” legislative lawyers wrote. “Rather than accept those decisions which were approved by supermajorities in both the House and Senate over former Governor Cooper’s veto, the Governor has sued once again, insisting that Senate Bill 382’s changes to the State and county boards of election are unconstitutional because they do not give him enough control to ensure the boards carry out his ‘policy preferences.’”
Top lawmakers argue that state Supreme Court precedents in previous clashes between the governor and legislature do not apply to the Stein v. Berger case.
“Unlike its federal counterpart, North Carolina’s Constitution establishes a plural executive,” legislative lawyers wrote. “The Governor accordingly is not the only member of the executive branch and does not hold a monopoly on executive power. Instead, the Constitution expressly provides that the executive branch shall include nine ‘other elective officers,’ and then grants the General Assembly power to assign their duties, stating that ‘their respective duties shall be prescribed by law.’”
“Thus, just like each version before it, our current Constitution diffuses power across a multi-member executive branch and grants the People’s representatives in the General Assembly power to allocate duties among them,” the court filing continued.
“The Governor’s position would effectively write these provisions out of the Constitution,” lawmakers’ lawyers added.
“Given that ‘a constitution cannot violate itself,’ the General Assembly’s decisions to transfer the Board of Elections to the Department of the Auditor and to assign the Auditor the duty to appoint the board’s members cannot be unconstitutional, since they are decisions that the Constitution expressly authorizes the General Assembly to make elsewhere,” the court filing added.
“The framers of our Constitution made a deliberate decision not to create a unitary executive, but to maintain a plural executive,” legislative lawyers explained. “They did so as a check against the Governor and to prevent accumulation of power in one man. The General Assembly’s choice to transfer the Board of Elections, as well as the power to appoint its members, to the Auditor is a natural outgrowth of that decision. While the Governor may disagree with the outcome of that decision — and may even wish our Constitution gave him the type of consolidated powers the federal constitution gives the President — that is not the system the People of North Carolina chose.”