Governor-elect Roy Cooper filed a lawsuit Friday challenging the General Assembly’s special session law that revamps the state elections board.
The lawsuit was the second filed in the waning days of Gov. Pat McCrory’s administration that challenge changes that were adopted by the General Assembly in a special session in December and signed into law by the Republican governor.
On Thursday, the state Board of Education sued legislators over a law that would transfer their power to set education policy to the new state superintendent, a Republican.
An attorney representing Cooper said at a court hearing Friday that more challenges could be filed next week by the new Democratic governor contesting other changes to his appointment powers – setting the stage for a contentious beginning between the state’s chief executive officer and the Republican lawmakers at the helm of both General Assembly chambers.
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Cooper is scheduled to be sworn in as governor as soon after midnight on Jan. 1 as possible, though his public inauguration is not taking place until Jan. 7.
On Friday, Cooper’s attorneys persuaded Wake County Superior Court Judge Donald Stephens to block enactment of the law revamping the state elections board until further court proceedings could take place.
The law was set to take effect Sunday, when the North Carolina State Board of Elections would officially have ceased to exist. That change will be delayed for at least a week, and Stephens set another hearing on the case for Thursday.
The law would merge the elections board with the State Ethics Commission, which administers ethics laws governing lobbyists, elected officials and government employees..
Cooper’s attorneys argued in the lawsuit that the changes violate the state’s constitution.
“The General Assembly passed a bill that, among other things, radically changes the structure and composition of the executive agency responsible for administrating our state’s election laws,” the lawsuit says. “Those changes are unconstitutional because they violate the separation of powers provisions enshrined in the North Carolina Constitution by shifting control over that agency away from the governor to the General Assembly.”
To bolster that argument, Cooper’s lawyers cited a case decided by the state Supreme Court earlier this year in which the justices found that legislators had overstepped their authority in trying to establish a new commission to regulate coal ash. McCrory successfully sued to block that commission.
Before the special session law, Cooper would have had the power to appoint the five State Board of Elections members — two of whom would be Republicans recommended by the Republican Party. Under the new configuration, he’d only get to appoint four of the new board’s eight members — and two of them must be Republicans. Legislative leaders would appoint the other four members, and the entire board must be split evenly between Democrats and Republicans.
Those appointees would not start until July 1. Until then, the current State Ethics Commission members will hold the seats – a group that doesn’t have much experience with election law. The State Board of Elections members who presided over 2016’s contentious early voting and post-election complaints were set to end their service Saturday. Stephens’ ruling means they’ll stay in charge for now.
On Friday, Senate leader Phil Berger issued a statement defending the elections board overhaul and criticizing Cooper’s decision to sue.
“Given the recent weeks-long uncertainty surrounding his own election, the governor-elect should understand better than anyone why North Carolinians deserve a system they can trust will settle election outcomes fairly and without the taint of partisanship,” Berger said, adding that the lawsuit “may serve (Cooper’s) desire to preserve his own political power, but it does not serve the best interests of our state.”
Noah Huffstetler, an attorney representing the state lawmakers, argued that Stephens did not have authority to temporarily block the law. In 2014, the Republican-led General Assembly changed the process for challenging laws on allegations that they violate the state Constitution.
In such cases, the chief justice of the N.C. Supreme Court, currently a Republican, appoints three judges to preside over the challenge. The attorneys representing state lawmakers argued that any request to halt the law while the lawsuit made its way through court should go before that three-judge panel, not Stephens.
Stephens challenged that assumption, questioning how someone could stop a legislature that had adopted a law that might be unconstitutional and quickly put in effect.
“So, the legislature could enact a statute clearly unconstitutional on its face, which would have devastating effect to the state of North Carolina and put it into effect immediately, and until such time that the judicial system could create, empanel and hear a challenge of that law, it would have full force and effect, and no one could stop it,” Stephens asked from the bench, looking at the lawyers over the top of his glasses. “Is that what you’re telling me?”
Stephens said he planned to inform Supreme Court Chief Justice Mark Martin about the challenge and others that Cooper is likely to add to the existing cases.
Martin could appoint a three-judge panel by Thursday, the next scheduled hearing in the case. If that happens, Stephens said, further proceedings would be before the appointed judges.
Had Stephens not taken action, the new law would have put the current Ethics Commission chair in the chair’s position for the new board, but that seat had been vacant after the resignation of chairman George Wainwright.
On Friday, McCrory appointed Raleigh attorney John E. Branch III to serve as the new chairman. Branch is a former general counsel for the N.C. Republican Party, and his practice at the Shanahan Law Group includes some election law matters.
Jim Phillips, a Greensboro attorney representing Cooper in the lawsuit, argued Friday that the elections board has administrative duties of overseeing about 500 pages of statutes governing elections in North Carolina. He pointed out that Cooper would have no power to name any members to the board for six months.
It’s unclear if the new board would be responsible for setting early voting schedules for a 2017 special legislative primary — one of its most contentious duties — before new appointees, including Cooper’s picks, would take office on July 1. This year featured early voting disputes in which Democrats on the elections board pushed for extended hours while Republicans largely opposed expansion.
Under the new law, the new elections and ethics board wouldn’t be able to take action with a simple majority — six of eight members must vote in favor. If the board deadlocks, matters could then be appealed to a Wake County Superior Court judge.
Cooper’s lawsuit argues that the super-majority requirement means the new board is “likely to be consistently deadlocked and unable to act” and therefore “will not be able to execute the election laws.”
The lawsuit also notes that if the board can’t get bipartisan agreement on early voting schedules — and courts decline to intervene — the schedules would default to the minimum number of hours allowed by law: A single site open only during weekday business hours and the Saturday before the election.
Cooper referred to that scenario in a news release Friday afternoon.
“A tie on a partisan vote would accomplish what many Republicans want: making it harder for North Carolinians to vote,” he said. “It will result in elections with longer lines, reduced early voting, fewer voting places, little enforcement of campaign finance laws, indecision by officials and mass confusion.”