Top NC court urged to consider two legal battles pitting GOP lawmakers against Cooper

State Senate Leader Phil Berger, Gov. Roy Cooper, and House Speaker Tim Moore

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  • Republican state legislative leaders are asking the North Carolina Supreme Court to take two cases, both titled Cooper v. Berger, pitting the General Assembly's leaders against Democratic Gov. Roy Cooper.
  • In one case, a lower court threw out lawmakers' plans to remake the State Board of Elections. In the other case, trial judges upheld five of seven state boards Cooper targeted for legal action because of changes in their appointments.
  • Both cases sit now with the state Court of Appeals. The Supreme Court, with its 5-2 Republican majority, would have to bypass the Appeals Court to take the cases now.

North Carolina’s Republican legislative leaders are asking the state Supreme Court to take up two disputes with Democratic Gov. Roy Cooper. Both focus on changes to appointments for state boards and commissions.

The state’s high court would have to bypass the Court of Appeals to take the cases, both titled Cooper v. Berger. Republicans outnumber Democrats, 5-2, on the state Supreme Court.

In one case, a unanimous three-judge Superior Court panel ruled in Cooper’s favor and against the General Assembly’s plan to remake appointments to the State Board of Elections. In the second case, a different unanimous three-judge panel upheld five of seven state boards and commissions Cooper had targeted because of appointments changes.

“Governor Cooper filed the suit below arguing that under no set of circumstances would it be constitutional to create a bipartisan, even-numbered board to manage the election laws of North Carolina,” wrote lawyers representing Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, in the first case. “Under the Governor’s view of
executive power, any discretion in executing those laws must carry forward only his
views and priorities.”

“As this Court has done with previous cases presenting similar issues, it should allow this bypass petition to review the foundational constitutional questions presented by this appeal,” wrote lawyers representing lawmakers in the second case. “The answers to those questions impact not only the structure of the seven public boards and commissions at issue in this case, but also the General Assembly’s authority to organize (and reorganize) agencies of State government.”

State lawmakers overrode Cooper’s vetoes in 2023 to approve bills changing appointments to boards and commissions. “[T]he bills sought to diffuse power over the boards and commissions at issue by adopting a range of structures that split appointments between the Governor, members of the Council of State, certain outside professional groups with relevant expertise, and the House and Senate,” according to the state Supreme Court petition.

“Governor Cooper, however, sued to stop Senate Bill 512 and House Bill 488, claiming they ‘fail to respect fundamental principles of representative government’ and, if implemented, would lead to ‘tyranny,’” lawmakers lawyers’ wrote.

“And just a week later, the Governor filed yet another lawsuit, challenging legislative efforts to establish a bipartisan Board of Elections. Why? Because, according to the Governor, separation of powers requires that he — and he alone — must have ‘enough control’ over every board and commission to ensure it ‘implement[s] executive policy’ in a manner ‘consistent with his views and priorities,’” the Supreme Court petition continued.

“As a result, he contends the Constitution requires that he have the power to appoint a majority of every board and commission the General Assembly creates,” lawmakers’ lawyers wrote. “But no provision of the Constitution gives the Governor power to appoint statutory officials.”

Cooper is relying on two precedent cases, McCrory v. Berger from 2016 and an earlier Cooper v. Berger ruling from 2018, “decisions which drew sharp dissents, and which cannot be squared with constitutional text, history, or precedent,” according to the legislative leaders’ lawyers.

Lawmakers contrasted the Superior Court panels’ responses to the two current Cooper v. Berger disputes.

“The panel in this case issued summary judgment enjoining Senate Bill 512’s changes with respect to two boards and commissions, but denying the Governors’ claims as to the others,” the Supreme Court petition explained. “That ruling stands in contrast to the one issued just a week later by the separate panel hearing the Governor’s challenge to the Board of Elections.”

“The panel’s decision in that case failed [to] find any basis to distinguish McCrory and Cooper I, and accordingly doubled down on the notion that that every board and commission — including those charged with overseeing elections — must be beholden to the Governor,” lawmakers’ lawyers argued. “Both cases thus bring into sharp focus whether the test established by McCrory and Cooper I is consistent with separation of powers enshrined in our Constitution, or, on the other hand, seeks to insert the judiciary into a nonjusticiable political question for which there are no judicially manageable standards.”

The state Supreme Court’s review of both cases “is necessary to consider whether McCrory and Cooper I should be overruled, provide needed guidance concerning the fundamental constitutional questions raised by the Governor’s claims, and resolve any lingering uncertainty regarding the proper composition of the boards and commissions at issue,” according to the petition.

In the elections board case, Superior Court Judges Edwin Wilson, Lori Hamilton, and Andrew Womble issued an order in March striking down elections board changes incorporated last year in Senate Bill 749. Wilson is a Democrat. Hamilton and Womble are Republicans.

Legislative leaders appealed that ruling.

In the broader appointments case, Superior Court Judges John Dunlow, Dawn Layton, and Paul Holcombe issued an order upholding changes to the state Environmental Management Commission, Coastal Resources Commission, Wildlife Resources Commission, Commission for Public Health, and a new Residential Code Council. The panel struck down changes to the state’s Economic Investment Committee and Board of Transportation.

In addition to legislative leaders, Cooper appealed the three-judge panel’s ruling in the appointments case.