A three-judge panel Thursday upheld Gov. Roy Cooper’s request to block a revamp of the state elections board while his lawsuit makes its way through the courts.
In the first hearing before the panel of judges assigned to the case this week, Greensboro attorney Jim Phillips argued for Cooper that a law adopted by the General Assembly in one of its special sessions last month violates the constitutional separation of powers.
It was a similar argument to one made last week by Phillips on the eve of the date the law would have disbanded the five-member state Board of Elections and passed its duties to the state Ethics Commission.
The merger was set to happen on Jan. 1, but Wake County Superior Court Judge Donald Stephens temporarily blocked the law from taking effect. His restraining order was set to expire Monday. The three-judge panel – assigned to the case because of the constitutional questions the new law raises – heard from the lawyers for nearly three hours before retreating behind closed doors. The panel contacted attorneys in the case several hours later, letting them know that they had granted Cooper’s request.
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They instructed Phillips to write an order, circulate it among the legislators’ lawyers and return it to them by Friday.
“We are very mindful that time is of the essence,” Gaston County Judge Jesse Caldwell told the attorneys and crowd gathered in the Wake County courtroom on Thursday morning.
At issue is whether the General Assembly overstepped its state constitutional authority when it adopted a law that establishes an eight-member board to oversee elections in this state and consider ethics complaints and issues. The governor would appoint four members and legislative leaders would appoint the other four, with the board split evenly between Democrats and Republicans.
That changes the current setup in which the governor has the power to appoint all five members to the state elections board, three from his party and two from the other major political party based on recommendations from that party.
The three judges who make up the panel who will weigh the constitutional challenge of the special session law are:
▪ Caldwell, a Democrat who has been on the bench since 1993.
▪ Logan Todd Burke, a Forsyth County judge and a Democrat who first was appointed to the bench in 1994 by then-Gov. Jim Hunt.
▪ Jeff Foster, a Republican from Pitt County who was appointed to the bench by then-Gov. Pat McCrory last year almost nine months before being elected to a full eight-year term.
The three judges had questions for the lawyers in the morning court session.
Caldwell asked Noah Huffstetler, a Raleigh-based attorney representing Phil Berger, president pro tempore of the state Senate, and Tim Moore, speaker of the state House, if he knew why the law to revamp the elections board was adopted in a special session without public hearings on the matter or a study commission to develop cost analyses.
“Do you have any information why this is so compelling to be brought up in an emergency session?” Caldwell asked.
Huffstetler said he could not comment on the legislators’ intent. He added that he did not think their reasons for crafting and adopting the law should be considered by the judges. The question before the judges, Huffstetler argued, was whether the law violated the separation of powers clause in the state Constitution as Cooper’s attorneys argued.
Phillips argued that the new setup would curtail the governor’s authority to ensure fair elections and transfer that to legislators. The law requires that six members of the elections board be present to take action and that a supermajority, or six members, must approve any action. The governor would not be able to appoint any members to the new board until July.
“One branch may not prevent another branch from performing its constitutional duties,” Phillips argued.
Hanging a new sign?
A question the judges are likely to weigh as the lawsuit moves through the judicial process is whether the five-member elections board falls under the executive branch, as Cooper’s attorneys argue.
Attorneys for Berger and Moore contended that state law sets up the board as an independent, quasi-judicial agency that is not attached to any branch of government. Huffstetler argued that if the judges side with the governor in the case, that they would be setting a precedent that would give governors the authority to play partisan games if they were upset with a board of elections policy or ruling. He argued that governors could get into the day-to-day management of the elections board for partisan gain.
“Would we really want an elections board or an ethics commission over which some future governor had that much power?” Huffstetler asked.
The lawmakers’ attorneys tried to persuade the three-judge panel that the special session law maintaned the status quo – that basically what would happen was a merger of the elections board staff and ethics commission staff and their duties overseen by one board.
Cooper, under law that dates back to the late 1960s, would not be able to appoint new members to the elections board until May, the lawmakers’ attorneys argued. State law sets out that board members are appointed to four-year terms of office that begin on May 1.
Attorneys for Berger and Moore argued that merging the boards would be similar to how McCrory moved parks oversight from the former department of Environment and Natural Resources and then changed the name of the new agency to the Department of Environmental Quality.
“You’re not suggesting that all that will be happening is a new sign will be put up?” Caldwell asked.
The lawmakers’ attorneys responded that, indeed, that was what they contended the special-session law does.