North Carolina’s election oversight board has been vacant for more than a month, but the N.C. Supreme Court is poised to decide if Gov. Roy Cooper must make appointments to the new board designed by Republicans.
Cooper last week asked the Supreme Court to block the law creating the State Board of Elections and Ethics Enforcement, which would be split equally among Republicans and Democrats – a change from the previous elections board, which was controlled by the governor’s party.
Attorneys for House Speaker Tim Moore and Senate leader Phil Berger called on the court Monday to deny the request, and both the GOP legislative leaders and the N.C. Republican Party say Cooper needs to make appointments immediately.
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A statement from Moore and Berger last week says the board “sits vacant with no accountable oversight of lobbying, ethics or campaign finance.” Agency staff members are in charge of the elections and ethics board for now but can’t take any actions that require the board to weigh in.
On Wednesday, a Cooper spokesman said the governor wants the Supreme Court to make a decision before he acts.
“We need to let the court process unfold and find a resolution,” spokesman Ford Porter said in an email.
Cooper’s request has already been rejected by a three-judge Superior Court panel and the N.C. Court of Appeals. The Court of Appeals order, dated June 16, doesn’t provide a reason for the decision or list which judges were involved. While the Court of Appeals is dominated by Republican judges, Democrats hold a narrow majority on the Supreme Court.
In the request seeking a block on the new law, Cooper’s attorneys said that if the Supreme Court sides with the governor, he’ll immediately appoint five new members to the old version of the election board. That board would consist of three Democrats and two Republicans. But if the court rejects the request, he’ll appoint members to the new board – four from each political party, selected from a list submitted by the parties.
Cooper’s lawsuit argues the change in the elections board violates the constitutional separation of powers, and his attorneys urged the Supreme Court to take the case.
“The Governor – no matter his or her political affiliation – must have a forum for the adjudication of serious constitutional questions relating to the proper allocation of powers,” the filing says. “Alternatively, this Court may decide to avoid the question, likely ensuring continued political gamesmanship between and among the three branches until North Carolina devolves into a government of ‘men’ rather than a ‘government of laws.’ ”
Cooper’s attorneys also oppose the provision that gives the legislature power to pick the agency’s executive director.
Attorneys for Berger and Moore, in their Monday filing with the Supreme Court, say Cooper “ramps up the bombast that without an injunction, even for a day, the rule of law in our state will erode to the whims of those in power ... This court need not engage in such hyperbole.”
The elections board law was passed in a December special session of the legislature and revised in April in response to court rulings. The elections and ethics agencies merged in early June when courts declined to block the law.
The N.C. Republican Party said Wednesday that Cooper “is refusing to do his job and choosing to leave North Carolina as the only state unable to enforce its elections laws.”
“Gov. Cooper is solely responsible for there currently being no ethics or elections enforcement in North Carolina,” NCGOP executive director Dallas Woodhouse said in an email. “It is clear that Gov. Cooper thinks he can pick and choose the laws he wants to follow, and ignore the multiple court rulings telling him to appoint the new bipartisan ethics and elections enforcement board.”
The NCGOP has already made its nominations for the new board, but the N.C. Democratic Party says it’s “going to let the court process play out” before announcing any selections.