The government board that oversees elections in North Carolina is unconstitutional, a panel of judges ruled on Tuesday — just weeks before Election Day in the 2018 midterms, and only a day before the start of early voting throughout the state.
However, the judges recognized the timing and ruled that the N.C. Board of Elections and Ethics Enforcement can continue operating as-is, until after the elections are over and the votes are counted.
The laws struck down as unconstitutional were put in place by the Republican-led General Assembly in 2017 and 2018 and limited the authority of Democratic Gov. Roy Cooper. The laws were passed to replace previous legislation passed in December 2016, a month after Cooper won the election, that was also struck down as unconstitutional.
Prior to the legislative changes that have now been struck down, the governor’s political party was given a majority on the board.
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This time, the panel of three judges issued a 2-1 ruling, with Jesse Caldwell of Gaston County and Todd Burke of Forsyth County in the majority and Jeffrey Foster of Pitt County dissenting.
Pat Gannon, a spokesman for the elections board, noted that the judges wrote their ruling so that the elections wouldn’t be disrupted. He said the board is still reviewing the order and didn’t any have further comment on what it could mean.
However, the ruling might not end up meaning anything if voters pass a constitutional amendment on the ballot this November, related to the elections board. In a written statement Wednesday afternoon, two Republican lawmakers urged people to support the constitutional amendment on the ballot.
“The public deserves a bipartisan elections board that implements elections laws and investigates campaign finance violations without favoritism towards any party or political agenda,” said Rep. David Lewis of Harnett County and Sen. Warren Daniel of Burke County. “The people can weigh in starting today by voting on the proposed amendment to make a bipartisan Board of Elections and Ethics Enforcement a part of our state constitution.”
That proposed amendment to the state constitution was written by Republican legislators after previous court rulings that found their elections board changes to be unconstitutional. It’s one of six amendments on the ballot this November, and if a majority of voters vote for it, it will become law.
Cooper tried to keep that amendment off the ballot, suing twice. He won the first time, forcing legislators to abandon plans to also strip the governor of the power to appoint members of numerous other state boards and commissions.
But after lawmakers rewrote the amendment to focus on the elections board, Cooper’s lawsuit was thrown out and the amendment was allowed to be put on the ballot.
That means that over the next few weeks the voters will have the power to decide how the elections board should be made up, and who should have control over it.
Currently the board has nine members, including four each from the Republican and Democratic parties and one person not affiliated with either party, who can break ties on politically contentious issues that come before the board.
That’s a less partisan setup than before 2016, when whichever party controlled the governor’s office also was guaranteed control of the elections board. The amendment on the ballot this November would permanently remove the ninth member of the board, leaving it with just four Republicans and four Democrats. The amendment would also remove most of the governor’s power to decide who sits on the board, giving that power to the legislature instead.
Supporters say the change would take politics out of elections, and that it’s good to reduce the power of the governor over election policies. Opponents say the change would only increase the effects of partisan politics, however, since having an equally split board would result in numerous 4-4 ties and reduced oversight for potential election law violations.
A deadlocked board could also lead to fewer voting sites, The Charlotte Observer reported.