GOP’s 8-member elections-ethics board struck down. Is a third lawsuit on the horizon?

A three-judge panel of L. Todd Burke, left, Jesse Caldwell, center, and Jeffrey Foster issued a ruling on Monday, March 5, 2018, striking down part of a 2017 law that created a merged 8-member elections and ethics board.
A three-judge panel of L. Todd Burke, left, Jesse Caldwell, center, and Jeffrey Foster issued a ruling on Monday, March 5, 2018, striking down part of a 2017 law that created a merged 8-member elections and ethics board. cseward@newsobserver.com

A three-judge panel threw a new wrinkle into the oversight of elections and ethics complaints on Monday in a long-running power struggle between Republican lawmakers and the Democratic governor.

The judges struck down a portion of a 2017 law that limited the governor’s power to decide who is on the board that plays a major role in where, when and how North Carolina votes and who has control over investigating ethics complaints against lawmakers and campaigns in a hyper-partisan political era.

Acting on a Jan. 26 order from the state Supreme Court, the judges kept in place a recently merged State Board of Elections and Ethics Enforcement. But they voided a portion of the 2017 law that dictated how members would be appointed to that board.

That Monday ruling launched a series of interpretations, as well as hints from the governor’s office that another lawsuit could be coming over the most recent attempt by North Carolina lawmakers to revamp the makeup of the elections and ethics boards.

On Tuesday, Gov. Roy Cooper asked the state Supreme Court to reverse the Monday ruling or clarify a confusing order issued in January by the high court’s majority.

Cooper’s advocates have argued that the battle over the boards should not be viewed only as a power struggle between the Democrat in the executive branch and the Republicans at the helm of the General Assembly. Cooper’s advocates have argued that their fight is about protecting access to the ballot box in a state where Republican lawmakers tried with a short-lived voter ID law and elections law overhaul to limit voting opportunities for black voters who often vote Democratic.

Local election boards, which under the new law would have four members, set hours for early voting and other initiatives. If the local board deadlocked on calls for more sites where people could vote early, the fallback would be to go with the least number of sites, Cooper’s administrators have said.

Republicans have framed the idea as a bipartisan one. On Monday, Senate and House leaders praised the ruling as protecting a “merged bipartisan elections and ethics board,” and criticized Cooper for challenging their repeated attempts to revamp the boards since his election.

Ford Porter, a spokesman for Cooper, described the ruling as another one striking “down Republican attempts to rig the board of elections.”

Josh Lawson, an attorney for the merged board, said Monday that he interpreted the ruling as keeping the merged board and office functions but doing away with the appointment process prescribed by lawmakers.

After the state Supreme Court issued a 4-3 ruling in January, striking down the second attempt by Republican lawmakers to revamp the elections board since Cooper was elected in November 2016, the legislators went back to the drawing board before the three-judge panel had jurisdiction over the case.

Lawmakers voted to create a nine-member board that would be made up of four Republicans, four Democrats and one unaffiliated member – all to be appointed by the governor. The parties would pass along a list of names for the governor to choose from, as has been the case with the five-member election board in place for decades. The unaffiliated voter would be chosen from a list of two names agreed upon by the eight Democrats and Republicans on the board.

In House Bill 90, the law adopted in special session, lawmakers said they were trying to fix problems noted by the state Supreme Court. After the state Supreme Court ruled that the eight-member board created by lawmakers could deadlock on issues and clip the governor’s power to carry out his duties, Republican leaders rolled out their plan for a nine-member board.

Cooper, who has contended the Supreme Court ruling meant a five-member board was back on the books, has said he will allow the new nine-member board, as part of a larger bill, to become law without his signature.

In the governor’s request for review of the Monday ruling, his attorneys make note of the new law and the date March 16, when they say it goes into effect. The governor’s attorneys asked the court to expedite his appeal and seek any response needed from state lawmakers by Friday to provide “clarity regarding the scope” of its January ruling so he can determine his next steps.

What’s next

Without a board in place, 23 of the local election boards have not had full membership. That means any questions at that level that cannot be decided unanimously could proceed to Wake County court for a judge to rule on such issues as residency requirements for candidates.

With primary elections set for May 8, absentee ballots are scheduled to go out on March 16.

Gerry Cohen, an attorney who worked at the General Assembly for more than three decades, issued a series of tweets on Monday interpreting the three-judge panel's decision, including one in which he, a registered Democrat, offered to serve on the board if the governor wanted to appoint him.

Cohen said the judges’ ruling could leave open a brief window for Cooper to appoint eight members to the board who would not be subject to Senate confirmation and could be members from each party with whom the governor is comfortable.

“If you look through the statute, there’s mention of a quorum as five members,” Cohen said, adding that it doesn’t say whether the board would be eight members, or nine as the newest General Assembly revamp calls for.

In his statement, the governor’s spokesman hinted at more legal action. “This ruling shows that for the second time our courts have struck down Republican attempts to rig the board of elections,” Porter said. “We have confidence that their third flawed attempt last month in HB90 will meet the same fate.”

Senate leader Phil Berger, a Rockingham County Republican, and House Speaker Tim Moore, a Cleveland County Republican, issued a statement critical of any more proceedings in court. “We have addressed the court’s concerns about the board’s membership in a bill Gov. Cooper has already promised to allow to become law, and we once again encourage him to abandon taxpayer-funded and self-serving lawsuits.”

What NC justices said

The law that merged the elections board and ethics commission passed in 2017 despite a veto by Cooper. In addition to setting up the eight-member board struck down by the three-judge panel on Monday, the lawmakers extended the tenure of the executive director of the state elections board – selected when Republicans had control of both General Assembly and the governor’s office – at least through the 2018 elections. Kim Strach, who currently holds the position, could only be replaced if the new board chose to do so.

Strach has worked at the elections board for 18 years, first as an investigator, then as a deputy director for 13 years before being appointed director in 2013 when a Republican governor came into office.

Much about the state’s elections this year has been in flux while judges in state and federal court weigh many challenges to redistricting plans and laws such as the one that dictated the revamp of the elections board.

Though the office functions of the ethics commission and elections board merged last year, Cooper did not make any appointments to the board while his lawsuit made its way through the courts. Attorneys for Cooper argued that the governor should be able to have a say in who oversees elections.

Judges last spring shot down lawmakers’ first attempt to rein in Cooper’s control of appointments to elections boards, as part of a law they passed after he defeated McCrory and weeks before Cooper took office.

The legislature passed a new version of the law, and the panel of three judges – Jesse Caldwell, a Gaston County Democrat, Todd Burke, a Forsyth County Democrat, ad Jeff Foster, a Pitt County Republican – ruled that they did not have jurisdiction to hear the arguments Cooper was making.

The state Supreme Court took up the case and ruled on Jan. 28 that indeed the three-judge panel had jurisdiction over the case.

Writing for the court’s Democratic majority, Justice Sam “Jimmy” Ervin IV said the lawmakers were within their rights to set the size of the board and its functions.

“The General Assembly cannot, however ... structure an executive branch commission in such a manner that the Governor is unable, within a reasonable period of time, to ‘take care that the laws be faithfully executed’ because he or she is required to appoint half of the commission members from a list of nominees consisting of individuals who are, in all likelihood, not supportive of, if not openly opposed to, his or her policy preferences while having limited supervisory control over the agency and circumscribed removal authority over commission members,” Ervin wrote.

In a dissent opinion written by Chief Justice Mark Martin and joined by Justice Barbara Jackson, the Republican justices focused on partisanship.

“The structure and makeup of the Board requires members to cooperate in a bipartisan way before taking any official action and encourages neutrality and fairness,” Martin wrote. “But, strangely, the majority opinion constitutionalizes a partisan makeup of the Bipartisan State Board, which threatens to inject political gamesmanship into the implementation of our election and ethics laws and undermines the neutrality inherent in an evenly divided bipartisan composition.”