Gov. Roy Cooper sued the state elections board and Republican legislative leaders over two constitutional amendments planned for the fall ballot. Rather than fighting Cooper, the state lawyer representing the elections board has jumped in on Cooper’s side.
The state Republican Party is calling out state Attorney General Josh Stein, a Democrat, for supporting the Democratic governor’s position on the lawsuit without getting election board members’ approval.
“It is highly unusual for an attorney to make a decision of this magnitude without a formal request or vote from his client board,” the state GOP said in a statement. “It is illegal for any member of the board to take a public stance on a ballot question.”
In an email, a spokeswoman for Stein said the office is confident it is properly representing the board.
“Our office has consulted closely with the State Board about this case and will continue to do so,” spokeswoman Laura Brewer said in an email. “Attorney client privilege prevents me from sharing the substance of those conversations. We are confident our clients are aware of and support the action we are taking in this litigation.”
Cooper, a former attorney general, is suing to stop two amendments that would transfer to the legislature his power to appoint members to hundreds of state boards and commissions and would limit his role in appointing judges to fill vacancies..
Elections board members have not taken public positions on the case.
“Consistent with the agency’s longstanding practice, our Board has not adopted a position on the merits while the Attorney General litigates the matter under his independent authority,” Board of Elections General Counsel Josh Lawson said in an email.
One of the most striking moments in the Tuesday hearing on Cooper’s suit was one of the governor’s lawyers reading from a court document written by state lawyers representing the elections board, a body Cooper is suing and that in most cases would be an adversary. The document supported Cooper’s position that the legislature had “adopted false and misleading ballot language.”
Solicitor General Matt Sawchak represented the elections board and sat at the defense table with lawyers representing legislative leaders.
“This is an extraordinary and unusual situation,” Sawchak acknowledged, before he reinforced Cooper’s arguments the ballot questions are misleading. He said the elections board had a duty to make sure the questions are “presented in a fair and non-discriminatory manner.”
‘The Board is an independent party in this litigation, asserting its own position,” Brewer said in the email. “The Board members and the Attorney General are required to support, maintain, and defend the North Carolina State Constitution. The Board also has a statutory duty to ensure that the ballot is fair and impartial. We took our legal action to meet those requirements. To be clear, the Attorney General’s fundamental responsibility is to the Constitution and the people of North Carolina, not the Senate President Pro Tempore, Speaker of the House, or the Governor.”
The Wake County Superior Court judge hearing arguments Tuesday sent the case to a three-judge panel. An NAACP and Clear Air Carolina lawsuit to keep four amendments off the ballot is also going to the three-judge panel.
State Supreme Court Chief Justice Mark Martin on Wednesday appointed the three Superior Court judges who will decide whether to temporarily keep the amendment questions off ballots.
Stein has been openly critical of the official language describing the proposed constitutional amendments the Republican-led legislature wants printed on ballots. He is on a three-member commission responsible for writing descriptions of the amendments that will be distributed to the public. At the commission’s first meeting, he jumped on two of the amendments that Cooper is suing over.
Stein described the language as misleading for not conveying the breadth of the changes in store if the amendments pass.
At the commission meeting last month, Stein described one of the amendments as “the most radical restructuring of our government in more than 100 years, since the Civil War. It would essentially give the legislature the power to run the executive branch.”
Responding to Stein’s commission meeting comments, Republican Sen. Ralph Hise of Spruce Pine said at a news conference Saturday that Stein is doing everything he can to defeat the two amendments.
Brewer said Stein has a legal responsibility, as a commission member, to accurately explain what the amendments will do.