Unanimous three-judge panel blocks new bipartisan NC elections board

Attorney Jim Phillips leaves Wake County Superior Court after helping Gov. Roy Cooper secure a preliminary injunction against changes to North Carolina's state and local elections boards. (Carolina Journal photo)

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  • A three-judge Superior Court panel granted Gov. Roy Cooper's request for a preliminary injunction blocking changes to North Carolina's state and local elections boards.
  • The injunction blocks Senate Bill 749, which would replace elections boards tilted toward Cooper's Democratic Party with boards split evenly between Democrats and Republicans.
  • The judges — two Republicans and one Democrat — signaled they would like to proceed with a trial in the case early next year.

A three-judge panel agreed unanimously Thursday to block a new state law that would replace the current Democrat-majority state elections board with a  new bipartisan body. Judges reached that decision after roughly 90 minutes of arguments in Wake County Superior Court.

The new elections board had been scheduled to take effect on Jan.1. With the judges’ decision to issue a preliminary injunction, the current elections board will remain in place throughout legal proceedings in the case titled Cooper v. Berger.

Judges signaled that they would like to conduct a trial early next year.

Republican legislators approved the new board through Senate Bill 749 after overriding a veto from Democratic Gov. Roy Cooper. Cooper filed suit against the bill, naming Senate Leader Phil Berger, R-Rockingham, as the lead defendant.

SB 749 would replace a five-member state elections board, featuring three members of the governor’s party, with an eight-member board split evenly between Democrats and Republicans. The law also would replace existing county elections boards, now weighted toward the governor’s party, with new boards featuring an even number of members from both parties.

The law also would give appointment power over state and local boards to the General Assembly. Cooper appoints the state elections board now based on recommendations from Democratic and Republican Party leaders.

Martin Warf, arguing on behalf of legislative leaders, told Judges Edwin Wilson, Lori Hamilton, and Andrew Womble that the new eight-member board would force people on both sides of the political divide to come together to find solutions.

He also rejected Cooper lawyer Jim Phillips’ argument that the elections board changes could cause irreparable harm to the governor.

Wonble questioned Warf’s assessment of harm if the panel agreed with Cooper that SB 749 violated the governor’s constitutional rights.

Hamilton suggested that anyone who had followed debates about election integrity over the past four years would not want to permit a change in election administration that would later be found to be unconstitutional.

She labeled the idea “seriously dangerous.”

Senior Deputy Attorney General Amar Majmundar, representing Democratic Attorney General Josh Stein and the executive branch, urged the judges to issue a preliminary injunction as both “appropriate” and “necessary.”

Hamilton and Womble are Republicans. Wilson is a Democrat. The General Assembly unanimously voted to confirm Wilson to a special Superior Court judge’s job this year after Cooper nominated him for the job.

State Supreme Court Chief Justice Paul Newby appoints three-judge panels to hear facial constitutional challenges like the one Cooper filed against SB 749.

The governor argues the new eight-member board created by that bill “would gridlock North Carolina elections and violate the separation of powers,” according to a news release from Cooper’s office.

Local elections boards also would be split evenly between the two major parties. Under current law, the governor’s party holds a majority of seats on state and county elections boards.

“The deadlocks that will be created on these new Boards of Elections at the state and local levels likely will reduce early voting and create longer lines at the polls,” Cooper said in the news release. “It will also undermine fair elections and faith in our democracy by sending disputes to our highly partisan legislature and courts. Both the Courts and the people have rejected this bad idea and the meaning of our Constitution doesn’t change just because the Supreme Court has new Justices. The Supreme Court should accept the clear precedent and the clear voice of the people and reject the Legislature’s latest attempt to control the election process.”

The state Supreme Court rejected lawmakers’ previous attempt to create a bipartisan elections board in 2018. Voters defeated a constitutional amendment that year addressing the same issue.

Cooper’s complaint targets Berger and House Speaker Tim Moore, R-Cleveland. The suit says legislative leaders ignored state Supreme Court decisions that “reaffirmed the separation of powers as a foundational principle of our state government.”

“Showing flagrant disregard for these constitutional principles, the North Carolina General Assembly takes direct aim at established precedents and once again seeks to significantly interfere with the Governor’s constitutionally assigned executive branch duty of election law enforcement and to take much of that power for itself,” Cooper’s lawyers wrote.

“Like Gollum reaching for the One Ring, Legislative Defendants are possessed by the power it brings,” the complaint continued. “When it comes to seizing control of the enforcement of the State’s election laws, neither the clear rulings of the Supreme Court, nor the overwhelming vote of the people, will deter them.”

“To be clear, nothing has changed since the last time Legislative Defendants tried — and failed — to cripple the State Board of Elections, except, of course, the composition of the Supreme Court,” Cooper’s lawyers wrote. “But Defendants Berger and Moore hope that is enough — that the new Court will discard the principle of stare decisis to give Legislative Defendants what they so desperately want.”

Democrats held a 4-3 majority on the state Supreme Court in 2018. After building that majority to 6-1 in 2019, Republican sweeps of statewide judicial races in the last two election cycles have produced a 5-2 GOP majority on the state’s highest court.