Three judges who already have ruled against one legislative attempt to take away control of elections oversight from the governor’s political party issued an order late Friday that temporarily blocks the latest law with that aim.
Gov. Roy Cooper sued Phil Berger, leader of the state Senate, Tim Moore, speaker of the state House, and the state on Wednesday over a law that again calls for the merging of the state elections board and ethics commission and changes the makeup, staffing and function of the two groups.
Legislators enacted the bill this week, overriding the governor’s veto of a law that would create an eight-member board to oversee the state’s elections that would be evenly divided between Republicans and Democrats. For the first two years, the board would keep the elections director selected during the Pat McCrory administration.
Although the latest configuration approved by the Republican-led General Assembly would allow the governor to appoint board members, the two major political parties would make lists from which the governor must choose four members each. The law also puts a Republican in charge of the new board in every presidential election year. A Democrat would chair the board in midterm election years.
“If this somehow sounds familiar,” said Jim Phillips, an Greensboro attorney representing Cooper, “that’s because it is.”
In a hearing held by conference call, Phillips compared the law to one adopted in December 2016, which merged the commission and elections board, but limited Cooper’s power to appoint its members. Though the new scenario shifts the appointment process back to the governor, Phillips said the goal is still to hamstring the governor’s ability to control an agency under the executive branch.
That same issue, Phillips said, was at the heart of the 2016 law that the three-judge panel found to be a violation of the state Constitution.
Phillips homed in on the part of the law that would leave the current elections director, Kim Strach, in place for the next two years. Then if the board were split on a replacement, Strach would stay in place until a five-vote majority chose her successor.
The executive director would be in charge of the staff hired to work for the board and give guidance to board members and county elections officials. With eight members, Cooper’s attorneys noted, there was potential for deadlock.
Attorneys for Berger and Moore argued that if the judges were to temporarily block the law from taking effect that Cooper, as of May 1, could make appointments to the elections board, and effectively change who serves as executive director of the state Board of Elections.
Phillips said Cooper had no plans to proceed that way if a restraining order were in effect.
Noah Huffstetler, a Raleigh-based attorney for Berger and Moore, argued that Cooper had not shown the extraordinary need for a temporary restraining order.
He argued that Cooper would have the same power to appoint members as he has now.
Phillips countered that Cooper’s arguments focused on percentages. Cooper, who must appoint members from a list supplied by the opposing political party, has the ability to appoint the majority of the board under the process in place before the legislative changes.
The judges closed the public hearing shortly after noon. The ruling was issued at 4:56 p.m. Friday.
Judges Jesse B. Caldwell III of Gaston County and Todd Burke of Forsyth County, the Democrats on the panel, approved the block on the law until May 10. Judge Jeff Foster, a Republican from Greenville, voted to deny the temporary restraining order.
The judges who supported the order stated that Cooper was “likely to sustain irreparable harm.”
Both sides issued prepared statements in response to the ruling.
“Legislative Republicans have repeatedly worked to restrict access to the ballot box, and time and again their attempts to rig elections have been found unconstitutional,” said Ford Porter, a Cooper spokesman. “The Court has already struck down similar legislation and we believe that this law will be overturned as well. Governor Cooper will continue to protect the right to vote and fight for fair elections.”
“The two out of three judges’ decision to override the legislature’s constitutional authority to create a bipartisan elections and ethics enforcement board – even after we modified the board exactly as they required – is little different than the legislating from the bench they specifically promised they would not do,” Berger said. “They have taken the first, disturbing step toward giving Roy Cooper total control of the board responsible for regulating his own ethics and campaign finance conduct, and we will continue to defend the law evenly dividing elections and ethics enforcement between both political parties.”