- Unaffiliated voters have dropped a 2022 lawsuit challenging the state law that blocks them from serving as members of the North Carolina State Board of Elections.
- Voters working with left-of-center activist groups had filed paperwork in January 2024 placing the lawsuit on hold while the governor and top legislative leaders waged a separate legal battle over elections board changes.
- That separate battle continues today. Gov. Josh Stein, a Democrat, challenges Republican lawmakers' plan to shift elections board appointments to State Auditor Dave Boliek, a Republican.
Unaffiliated voters have dropped their 2022 federal lawsuit challenging a state law that blocks them from serving on the North Carolina State Board of Elections. All parties in the case signed a joint stipulation of dismissal filed Tuesday.
The document arrives as Democratic Gov. Josh Stein and Republican legislative leaders wage a separate legal battle over plans to shift elections board appointments to State Auditor Dave Boliek, a Republican. Without court action, Boliek can make new elections board appointments on May 1.
Plaintiffs and defendants in the unaffiliated voters’ case, Common Cause v. Moore, “hereby agree to dismiss all pending claims in this action without prejudice,” according to Tuesday’s court filing. Each party in the case will cover its own attorneys’ fees and other expenses.
Five unaffiliated voters and the left-of-center activist group serving as lead plaintiff in the case hit the pause button in January 2024. A court filing at that time indicated that the suit would not proceed until state courts resolved the separate dispute pitting the governor against state legislative leaders.
The plaintiffs filed suit against state legislative leaders in August 2022. An amended complaint filed in February 2023 added then-Gov. Roy Cooper as a defendant.
The January 2024 court filing responded to Cooper v. Berger, a lawsuit challenging changes to the elections board. That suit continues today under the name Stein v. Berger or Stein v. Hall. Cooper’s successor, Gov. Josh Stein, is suing state Senate Leader Phil Berger, R-Rockingham, and House Speaker Destin Hall, R-Caldwell.
Common Cause plaintiffs responded in 2023 to Cooper’s motion to dismiss their lawsuit.
“In this case, plaintiffs seek a declaration that North Carolina’s law rendering more than 2.5 million citizens ineligible for appointment to the State Board of Elections … violates the First and Fourteenth Amendments,” wrote attorneys Edwin Speas and Michael Crowell in a brief filed in May 2023. “Plaintiffs do not seek a court order appointing them to the State Board; they only seek an order making them and every other unaffiliated voter in North Carolina eligible for appointment to the State Board.”
“Nor do they seek an order that forces the Governor to appoint anyone who does not share his policy views — an order that would violate the separation of powers principles recognized and reiterated in Cooper v. Berger,” a 2018 N.C. Supreme Court case. “All parties agree that the Governor is entitled to appoint a majority of members to the State Board who share his ‘views and priorities.’ Plaintiffs do not seek to change that well-settled principle. Instead, plaintiffs simply seek removal of the statutory ban which prohibits the Governor from appointing anyone but Democrats or Republicans to the State Board.”
The governor’s arguments relied on the wrong legal standard, Speas and Crowell argued. “The Governor tries to ignore the overriding fact that this case is about voting, despite the unsettling proof in the last few years that election boards determine who gets to vote, who gets to run for office, and whose votes count,” they wrote.
“There is no compelling interest to justify the exclusion of unaffiliated voters from the State Board,” Speas and Crowell wrote. “The Governor’s interest in maintaining control over the policy views of the State Board does not justify the burden.”
The unaffiliated voters rejected arguments related to the “stability of the two-party system.” “Preservation of the two-party monopoly over election administration in North Carolina is not justified when it comes at the expense of an outright ban on unaffiliated voters,” Speas and Crowell wrote. “Nor can it logically be argued that voter confidence is enhanced by excluding the largest share of voters in the state simply because they choose not to affiliate with the two major political parties.”
The brief emphasized the elections board’s judicial function. “Independence, not political allegiance, is required for a State Board that investigates election misconduct, holds evidentiary hearings, and decides judicially whether new elections should be ordered,” Speas and Crowell wrote.
“[I]f unaffiliated voters were treated like a third party they would have passed the point of deserving recognition — and representation on the State Board — many years ago,” the brief added.
Cooper, a Democrat, filed a motion to dismiss the unaffiliated voters’ lawsuit in May 2023, roughly two months after Republican legislative leaders made the same request.
“Plaintiffs seek a declaration that the law violates their First Amendment and Equal Protection rights and assert that the law unconstitutionally prohibits unaffiliated voters from being appointed to the Board. … However, Plaintiffs lack standing to sue. Moreover, even if they do have standing, Plaintiffs have not sufficiently alleged that Section 163-19 is unconstitutional,” according to a brief from sate Justice Department lawyers representing Cooper.
“Indeed, Plaintiffs as a matter of law cannot demonstrate that Section 163-19 violates
the First Amendment because Board positions are related to political interests, and partisan affiliation is an appropriate requirement for the position,” Cooper’s brief added. “Furthermore, Section 163-19 does not discriminate against a protected class and is rationally related to a legitimate state interest. Accordingly, this Court should grant Governor Cooper’s motion to dismiss.”
Republican legislative leaders made their own arguments against the lawsuit in March 2023.
“Plaintiffs argue that by not allowing unaffiliated voters to serve on the State Board, their First Amendment and Equal Protection rights are violated. However, these Plaintiffs lack standing to bring those claims. And Defendants, members of the legislative branch, who enact but do not enforce laws, are immune from suit for such claims in federal court,” wrote attorney Martin Warf, representing the top officers in the state House and Senate.
“Even if Plaintiffs could overcome these issues, the federal constitution does not support such associational claims, and, these claims run headlong into the North Carolina Constitution, which has been interpreted by North Carolina courts to require that the Governor be able to control the SBOE,” Warf added. “Counterbalancing one major party’s views and priorities on the Board with that of the other major party’s views, therefore, is a rational approach to election administration adopted by numerous other states.”