For the second time since Democratic Gov. Roy Cooper took office, the state Supreme Court issued a ruling striking down an attempt by the Republican-led General Assembly to revamp the state elections board.
In a 4-3 ruling that breaks down along the court’s partisan lines, the justices found that a law passed in 2017 that merged the state Board of Elections with the state Ethics Commission and limited Cooper’s power to appoint a majority of its members violated the state Constitution’s separation of powers clause.
The ruling, in a case that has attracted national attention, means that the governor’s party will control elections boards at the state and county levels, as has been the case for decades before Cooper defeated one-term Republican Gov. Pat McCrory. That could have implications for voting hours and poll locations in this year’s elections.
“I appreciate the Court’s careful consideration,” Cooper said in a statement after the ruling was released. “Access to the ballot box is vital to our democratic process and I will continue to protect fair elections and the right of North Carolinians to vote.”
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 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.
Strach has worked at the elections board for 18 years, first as an investigator, then as a deputy director for 13 years before being appointed director in 2013 when a Republican governor came into office.
The filing period for candidates planning to run for state Senate and House seats opens on Feb. 12, as it does for North Carolina’s congressional candidates.
Much about the state’s elections this year has been in flux while judges in state and federal court weigh many challenges to redistricting plans and laws such as the one that dictated the revamp of the elections board.
On Friday, attorneys for the state elections and ethics board were reading the ruling written by Justice Sam Ervin IV and were not certain how quickly changes would take place.
Though the office functions of the ethics commission and elections board merged last year, Cooper did not make any appointments to the board while his lawsuit made its way through the courts. Attorneys for Cooper argued that the governor should be able to have a say in who oversees elections.
What the justices said
Writing for the court’s Democratic majority, Ervin said the lawmakers were within their rights to set the size of the board and its functions.
“The General Assembly cannot, however ... structure an executive branch commission in such a manner that the Governor is unable, within a reasonable period of time, to ‘take care that the laws be faithfully executed’ because he or she is required to appoint half of the commission members from a list of nominees consisting of individuals who are, in all likelihood, not supportive of, if not openly opposed to, his or her policy preferences while having limited supervisory control over the agency and circumscribed removal authority over commission members,” Ervin wrote.
In a dissent opinion written by Chief Justice Mark Martin and joined by Justice Barbara Jackson, the Republican justices focused on partisanship.
“The structure and makeup of the Board requires members to cooperate in a bipartisan way before taking any official action and encourages neutrality and fairness,” Martin wrote. “But, strangely, the majority opinion constitutionalizes a partisan makeup of the Bipartisan State Board, which threatens to inject political gamesmanship into the implementation of our election and ethics laws and undermines the neutrality inherent in an evenly divided bipartisan composition.”
Republican Justice Paul Newby also focused on partisanship, questioning why the court should be involved in what he contended was a political question.
“With today’s sweeping opinion, the majority effectively eliminates the political question doctrine, embroiling the Court in separation-of-powers disputes for years to come,” Newby wrote. “The only separation of powers violation in this case is this Court’s encroachment on the express constitutional power of the General Assembly.”
In a series of tweets, Senate leader Phil Berger stated that Republican leaders were reviewing the order, but he highlighted segments of the dissent opinions from Martin, Jackson and Newby.
National interest in NC ruling
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.
Judges last spring shot down lawmakers’ first attempt to rein in Cooper’s control of appointments to elections boards, as part of a law they passed after he defeated McCrory and weeks before Cooper took office.
The legislature passed a new version of the law, and a panel of three judges ruled it did not have jurisdiction to hear the arguments Cooper was making.
At that time, Berger, the Rockingham County Republican who leads the state Senate, and Tim Moore, the Republican from Cleveland County who heads the state House, issued a statement urging Cooper to “abandon his taxpayer-funded pursuit of total control of the board responsible for regulating his own ethics and campaign finance conduct.”
“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 the June 1 statement.
The Brennan Center for Justice at New York University, a nonpartisan law and policy institute, asked earlier this year to weigh in on the case with a “friend of the court brief” to advocate for voters they contended were being disenfranchised.
Brennan Center attorneys argued that the North Carolina justices should look beyond the “they did it, too” arguments that Republicans have used to support their actions.
The Brennan Center attorneys “recognize that political entrenchment in North Carolina has been a bipartisan phenomenon,” they stated in a court document filed on Aug. 3 with the case. “The Democratic Party also sought to manipulate the political process to frustrate the will of North Carolina voters when it had the chance. But ‘they did it too’ is not a legal defense, especially when the real losers from the escalating series of violations are not North Carolina’s political class, but the rest of this state’s citizens. ‘We the people’ are entitled to a political system in which elected leaders are responsive to citizens and can be held accountable for their decisions. Where, as in this case, the other branches abdicate or otherwise cannot fulfill their duty to safeguard the people’s fundamental interest in representative government, it is incumbent upon this Court to intervene. We urge the Court to do so.”
On Friday, Tomas Lopez, director of Democracy NC, a voting rights advocate, applauded the state Supreme Court ruling.
“Today's ruling rejects a law that amounted to an unlawful power grab by the North Carolina General Assembly.” Lopez said. “The public deserves a political system that respects its will. We welcome this decision and are hopeful that it will dissuade our leaders from future attempts to entrench their power.”