NC court to hear arguments next week on election board power shift favoring GOP

Good morning. I’m Kyle Ingram, this week’s host of your Under the Dome newsletter.

While most of us are anxiously awaiting the imminent winter storm headed for North Carolina, there’s another major event on the horizon. The state’s controversial power shift that stripped Democratic Gov. Josh Stein of his appointments to powerful state and local election boards is headed to court — again.

On Tuesday, the Court of Appeals will hear arguments in Stein v. Hall, the governor’s long-running case against Senate Bill 382, which transferred his appointment power to State Auditor Dave Boliek and, consequently, put North Carolina’s elections under Republican control.

The controversy began shortly after Stein was elected in a landslide against Republican Lt. Gov. Mark Robinson. State lawmakers quickly introduced SB 382, which stripped a variety of powers not only from Stein, but other incoming Democrats like Attorney General Jeff Jackson.

In the final days of their legislative supermajority, Republican lawmakers overrode then-Gov. Roy Cooper’s veto, enacting the law shortly before Stein took office.

Stein sued and initially won at the trial court level, with a panel of judges agreeing that the law was unconstitutional.

But the Court of Appeals quickly stepped in and blocked that ruling, allowing the law to take effect on May 1.

Now, the court will hear more in-depth arguments on the merits of the case for the first time.

Legislative leaders, who are defendants in the case, argue that the framers of the North Carolina Constitution intended to check the power of the governor by dispersing executive power across different positions.

“They did so as a check against the accumulation of power in one person,” attorneys for the legislative leaders argued. “The General Assembly’s choice to transfer the Board of Elections, as well as the power to appoint its members, to the Auditor is a natural outgrowth of that decision.”

But Stein argues that such an argument is a slippery slope.

“If the courts acquiesce to the General Assembly’s ‘shift the-power’ strategy, the General Assembly can effectively control the executive branch, no matter who the people elect to be Governor or to the Council of State,” attorney for Stein wrote in a legal brief. “Fundamentally, the General Assembly here claims a power to — on its whim — transfer any executive duty or power from the Governor to any other executive official that it favors more at any time.”

The case may be an uphill battle for Stein and other opponents of the wide-ranging power shift.

The Court of Appeals already ruled against him once, allowing SB 382 to take effect, and new Republican majorities on the State Board of Elections and all 100 county election boards to take office back in spring.

Those new board members have already spent months in office, making decisions about early voting sites, candidate eligibility and even ousting the state’s longtime executive director. Any ruling against SB 382 could call into question the legitimacy of those decisions.

And North Carolina’s appellate courts, which are dominated by Republicans, have not often ruled against the legislature.

Weather permitting, arguments will be held Tuesday at 2 p.m. before a panel of two Republican judges and one Democrat.

What else we’ve been working on

• In response to top NC Democrat, board defends allowing party-switcher on ballot
• Winter storm to impact ‘majority of the state,’ NC Gov. Josh Stein says
• Gov. Stein declares state of emergency before winter storm descends on NC
• Is late party switching allowed for NC candidates? Wilson case tests state law
• Recent cases show flaws in NC’s mental health care system. How it could improve.
• Get a text from the NC DMV saying you owe money? Don’t believe it.

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Kyle Ingram

The News & Observer

Kyle Ingram is the Democracy Reporter for the News & Observer. He reports on voting rights, election administration, the state judicial branch and more. He is a graduate of the Hussman School of Journalism and Media at UNC-Chapel Hill.