The N.C. elections board on Saturday, in a party-line split, acknowledged the attorney general can defend the agency against a lawsuit brought by the governor any way he sees fit, even if it means supporting the governor’s position in the suit.
The vote, taken in a special session by telephone, was in response to Attorney General Josh Stein, a Democrat, supporting the position of Gov. Roy Cooper, also a Democrat, in the lawsuit without the express approval of the elections board. Cooper is suing legislative leaders and the Bipartisan State Board of Elections & Ethics Enforcement in an effort to keep two proposed constitutional amendments off of the fall ballot.
The state Republican Party pointed out that it is unusual for a state agency’s attorney to take such significant action without the support of the agency’s board. The attorney general’s office said earlier this week that it has conferred with the elections board and has its support.
The attorney general’s office consulted with the elections board staff about the litigation last Sunday and provided staff with drafts of court pleadings before filing them the next day, according to a board spokesman.
On Saturday, the one unaffiliated member of the board joined with the four Democrats to “ratify” the actions of the attorney general. The four Republicans on the board argued that the vote was unnecessary and made the elections agency look partisan, since traditionally the board remains neutral in litigation.
The vote was taken after the board went into closed session for about half an hour to discuss five pending lawsuits.
Board member John Lewis, a Republican, said in open session that the attorney general’s office has made it clear that under the law it has the authority to represent the board any way it chooses. But that doesn’t mean the board has to officially endorse those actions, he said.
“There’s absolutely no justification for us to weigh in on this other than just partisan politics,” Lewis said. “There’s no reason to impose self-inflicted wounds on this board, on our credibility, on our ability to function further as a bipartisan board. “
Board chairman Andy Penry disagreed that it was a partisan issue.
“The fact we disagree doesn’t mean our votes are somehow partisan, the implication that we’re somehow dishonest,” Penry said.
Some Democrats on the board said ratifying wasn’t the same as approving the attorney general’s actions. The motion read: “To approve, and to the extent necessary, ratify, the actions of the Attorney General in the representation of the Board and its members and employees in the Cooper V litigation, and, to the extent necessary, expressly authorize the Attorney General to represent the interests of the Board, its members and employees, as he believes proper and in accordance with the law.”
Dallas Woodhouse, executive director of the N.C. Republican Party, issued a statement after the vote criticizing the Democrats.
“Today’s partisan actions by the Democrat members of the Board of Elections are grossly improper and show exactly why the constitutional amendment creating a completely bipartisan Board of Elections is needed,” Woodhouse said.
Cooper is challenging two of six proposed amendments. One would shift the power to fill judicial vacancies from the governor to the legislature. The other would take away the governor’s authority to appoint people to executive office.
One provision would change the makeup of the elections board to no more than four of one party, all appointed by the General Assembly.