State Politics

Cooper would have lost this court battle in power struggle with NC lawmakers

A three-judge panel of L. Todd Burke, left, Jesse Caldwell, center, and Jeffrey Foster would have ruled against Gov. Roy Cooper in his challenge of a revamp of the elections board and ethics commission. The judges heard arguments at Campbell Law School on June 1, 2017.
A three-judge panel of L. Todd Burke, left, Jesse Caldwell, center, and Jeffrey Foster would have ruled against Gov. Roy Cooper in his challenge of a revamp of the elections board and ethics commission. The judges heard arguments at Campbell Law School on June 1, 2017. cseward@newsobserver.com

A panel of three judges would have ruled against Gov. Roy Cooper in one of his power struggles with state lawmakers, this one over control of elections boards.

In a ruling released Tuesday, the judges said that if they had jurisdiction of the case they would have decided that lawmakers had not violated the state Constitution when they created an eight-member board – evenly divided between the major political parties – to preside over state election issues and ethics complaints.

The case could determine whether Republicans will have leadership on elections boards at the state and county level during presidential election years when North Carolina voters also elect their governor.

The findings from the three judges — L. Todd Burke of Forsyth County, Jesse Caldwell of Gaston County and Jeffrey Foster of Pitt County — put the case back before the state Supreme Court.

The seven justices heard arguments in late August on the case, which is being watched by national voting rights organizations.

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Several days after the attorneys made their oral arguments, the court’s newest justice, Mike Morgan, issued an order asking the three judges to provide more detail about the jurisdictional issue that led them to dismiss the case and also to tell the justices how they would have ruled had they thought they had jurisdiction.

The judges explained in their ruling released on Tuesday that they thought Cooper was asking them to wade into political questions that were improperly before them.

The law that merged the state elections board and ethics commission passed despite a veto by Cooper. Not only did it set up an eight-member board and change how appointments are made, the lawmakers extended the tenure of the executive director of the state elections board – selected when Republicans had control of both the General Assembly and the governor’s office – at least through the 2018 elections. Kim Strach, who currently holds the position, could only be replaced if the new board, which would hold an equal number of Democrats and Republicans, chose to do so.

Cooper has yet to make any appointments to the board while his lawsuit makes its way through the courts. Attorneys for Cooper have argued in court that the governor, as has been the case for decades, should be able to have a say in who oversees elections in a state where he defeated one-term Republican Gov. Pat McCrory.

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Cooper also has argued that an eight-member board could become locked along party lines, creating a stalemate that would prohibit him from exercising the power that he contends the state Constitution provides him.

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.

Under the April law, Cooper would select the members from lists compiled by the two parties.

Republicans have framed the idea as a “bipartisan” one, and they have been critical of Cooper for continuing what they described as “partisan politics” when he challenges them in court.

Cooper’s advocates have argued that the battle over the elections should not be viewed only as a power struggle between the Democrat in the executive branch and the Republicans at the helm of the General Assembly. Ford Porter, a spokesman for Cooper, said in June the case was protecting “access to the ballot box for North Carolina voters.”

Local election boards, which under the new law would have four members, set hours for early voting and other initiatives. If the local board deadlocked on calls for more sites where people could vote early, the fallback would be to go with the least number of sites, Cooper’s administrators have said.

Though the three judges maintained that they did not think the case should be before them, they also informed the justices that Cooper had not shown evidence of stalemate on the evenly divided board, nor had the General Assembly overstepped its authority when it appointed Strach for a longer term.

Under the law, Cooper has the authority to remove anybody if he has cause to, the judges pointed out.

“Were the governor given the control he seeks either over the Board of Elections or the Bipartisan Board in this case, neither board could continue to function ‘as an independent and quasi-judiciary agency’ as the Board of Elections has under prior law,” the judges found.

Phil Berger, the Rockingham County Republican who leads the state Senate, and Tim Moore, the Republican from Cleveland County who heads the state House, applauded the ruling in a statement Tuesday.

“We appreciate the court’s thoughtful and well-reasoned decision rejecting Roy Cooper’s attempts to drag his political battles into the courtroom, and we encourage him to abandon taxpayer-funded lawsuits and follow the bipartisan elections and ethics board law,” Berger and Moore said.

Porter, Cooper’s spokesman, pointed to an earlier ruling by the same three judges who found that a different proposed merger of the elections board and ethics commission were unconstitutional because it gave the lawmakers the power to appoint some of the members.

“This same three judge panel recently held that a similar law was unconstitutional,” Porter said before alluding to changes proposed by lawmakers to make judges stand for election every two years in newly drawn districts. “Since then, the Republican leaders in the legislature have issued sharp threats to our state’s judges. This case will ultimately be decided by our state’s Supreme Court and we have confidence that the Justices will disregard this intimidation, apply our state’s constitution, and declare this law unconstitutional.”

Anne Blythe: 919-836-4948, @AnneBlythe1

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