State Politics

Legislative leaders win this round in court in power struggle with governor

A three-judge panel of L. Todd Burke, left, Jesse Caldwell, center, and Jeffrey Foster confer as they hear arguments in the most recenbt lawsuit filed by Gov. Roy Cooper challenging the second rendition of the elections board-ethics commission revamp. The hearing is being held at Campbell Law school on June 1, 2017
A three-judge panel of L. Todd Burke, left, Jesse Caldwell, center, and Jeffrey Foster confer as they hear arguments in the most recenbt lawsuit filed by Gov. Roy Cooper challenging the second rendition of the elections board-ethics commission revamp. The hearing is being held at Campbell Law school on June 1, 2017

For anyone keeping score in the power struggle between the governor and General Assembly leaders, a three-judge panel ruled in favor of the legislative branch on Thursday in a case involving the most recent revamp of the state elections board.

The three Superior Court judges unanimously agreed to dismiss the lawsuit filed by Gov. Roy Cooper, as Senate leader Phil Berger and House Speaker Tim Moore had requested.

The one-page order released late in the afternoon offers few details on the panel’s reasoning for its decision. The judges cited a law referring to lack of jurisdiction on the subject matter, but did not elaborate. A spokesman for the Democratic governor said shortly after the ruling that Cooper plans to appeal the decision to the state Supreme Court.

At issue was whether the legislature overstepped its authority when Republicans merged the state elections board and ethics commission, and also decided who would be the executive director in charge of the new board.

“Today the three-judge panel swiftly rejected Roy Cooper’s latest attempt to drag his political battles into the courtroom – and instead delivered a victory to North Carolina voters, who should now expect their elections and ethics laws to be enforced fairly and with bipartisan cooperation,” Berger and Moore said in a joint statement. “We encourage the governor to accept this result and abandon his taxpayer-funded pursuit of total control of the board responsible for regulating his own ethics and campaign finance conduct.”

Before the changes, the governor picked the majority of the five-member statewide elections board, which selects who sits on local election boards in all of North Carolina’s 100 counties.

The April law divides the merged elections board and ethics commission equally among Republicans and Democrats. Cooper would select the members from lists compiled by the two parties.

As the law is written, a Republican would head the new board in presidential election years when voter turnout is typically the largest. The merged board not only would lead the oversight of elections and any disputes over ballots, it would be in charge of investigating ethics complaints against politicians and possible violations of lobbying and campaign finance laws.

Lawmakers also approved a two-year appointment for Kim Strach, the current executive director, to lead the day-to-day management of the merged board. Strach, who was put in charge during the administration of Pat McCrory, the Republican governor who preceded Cooper, could not be replaced until at least 2019.

A previous attempt to merge the elections board with the ethics commission came several weeks before Cooper took office. That law, though, was found to be unconstitutional by the same three-judge panel that ruled on the most recent merger. The General Assembly responded by approving the version of the merger that was before the judges Thursday.

At the hearing on Thursday in a Campbell University law school courtroom and in court documents, attorneys for legislative leaders argued that Cooper might not like having his powers reduced, but earlier Republican governors had seen their election oversight diminished and ballots were cast for years without disruption.

The legislators’ attorneys argued that Cooper’s “separation of powers argument is merely a smoke screen for his true motivation — party politics. ... It is not for the Governor (or this Court) to attempt to restore the Democratic Party to what it could have been under prior law.”

They argued that Cooper had not shown the judges any evidence that the governor wasn’t able to carry out his executive powers, that in the future if such problems were to arise he would have a stronger case in court.

Cooper has enough supervision of the combined board to execute the laws the General Assembly adopted, lawyers for the legislative leaders said. They added that it was the governor’s duty to execute the laws as written.

Cooper’s lawyer contended that the legislature was writing the laws and picking the people to enforce them, a violation of the constitutional principle of separation of powers.

Attorneys for the lawmakers argued that the issue before the judges was a political one, not a constitutional one about the separation of powers between the branches of government in North Carolina. They made similar arguments earlier this year, though, when the panel sided with the governor.

“The decision that the court doesn’t have jurisdiction to hear this case is completely inconsistent with this panel’s own ruling in March and with the Supreme Court’s decision in McCrory v Berger,” Ford Porter, a spokesman for Cooper, said in a statement. “It looks like the threats from the legislature had an effect on these judges and we believe the higher courts will respond differently in order to protect access to the ballot box for North Carolina voters.”

Porter said he was referring to joint statements issued by Berger and Moore after the panel issued rulings against the lawmakers on other disputes in which Cooper has contended the lawmakers had overstepped their authority and assumed power that rested with the executive branch.

In one of those statements in February, the legislative leaders criticized a temporary halt that the judges had placed on Senate plans to hold confirmation hearings for Cooper’s Cabinet appointees, saying the judges had taken “a blatant overstep of their Constitutional authority” and “attempted to dictate to the legislature when it could or could not hold committee meetings and what it could or could not consider in those meetings.”

The General Assembly leaders equated the panel’s decision with “an unprecedented move” that “would be like the legislature telling a judge what jurors to pick to decide a case.”

“Judges are not legislators and if these three men want to make laws, they should hang up their robes and run for a legislative seat,” they said at the time. “Their decision to legislate from the bench will have profound consequences, and they should immediately reconvene their panel and reverse their order.”

Anne Blythe: 919-836-4948, @AnneBlythe1