NC lawmakers made 11th hour changes to governor’s powers. Was it constitutional? | Opinion

Doing things at the last minute isn’t just for Christmas shoppers. It’s not uncommon in politics to see one party making government overhauls before the next administration takes office.

For example, look at the Biden administration’s latest $1 billion military aid package to Ukraine and its last-minute contract negotiations to secure federal employees jobs and work-from-home practices. North Carolinians are seeing these last-minute changes during the closing days of the 2023-2024 biennium.

As part of the latest hurricane-recovery relief package, the General Assembly embedded several policy changes into the bill that targeted at the executive-level offices that Democrats won in this year’s election, including the appointment power to the state Board of Elections.

In a previous op-ed, I wrote that the legislature was correct in striving for an equally divided board of elections under Senate Bill 749 but that it was a violation of the state’s separation of powers for the legislature to have power over the appointments. While this bill will keep appointment power to the Board of Elections within the executive branch, it drops the equal board appointments proposed in the previous bill. The new changes do put the legislation into compliance with Cooper v. Berger (2018) and other court precedents, but they invert the problems of the prior legislation.

The legislation changes the appointing authority from the governor to the state auditor and maintains the practice of the appointing authority’s party holding a 3-2 advantage both in the state and all county boards of elections. Gov. Cooper (D) has called parts of the bill unconstitutional, but the changes to the appointments of the Board of Elections are likely well within the authority of the legislature.

Unlike the federal government, North Carolina does not have a unitary executive. Article III of the North Carolina State Constitution makes clear that unless otherwise prescribed by the constitution, the legislature has the power to determine the duties and authorities of the executive branch members that make up the Council of State. All Council of State members not only have appointment authority but are responsible for overseeing the execution of laws. Despite what the governor attests in a separate lawsuit, it is not the case that these appointments must be made by the governor.

I believe the best course of action would have been for the legislature to have maintained the equally divided board statute, allowing its challenge before the state court of appeals to continue. Cooper v. Berger (2018) set about a poorly reasoned precedent that the structure of the board of elections must be one that allows the authority making the appointments to implement his or her “policy preference.” Under an evenly divided board, no party would have an inherent advantage based upon the party of a particular appointing authority.

Nevertheless, it’s neither unconstitutional nor unprecedented for the General Assembly to change the powers prescribed to one executive office to another. The state constitution clearly gives the legislature the power to determine the authorities and duties of the executive branch. That authority has been used by both major parties. Democrats used the legislature’s authority against Republican executive members on three separate occasions in the 20th century: against Gov. Jim Holshouser in 1972, Gov. Jim Martin in 1984 and Lt. Gov. Jim Gardner in 1988. Republicans used that authority against Cooper during a late 2016 special session.

This review of North Carolina history is not to justify the actions of prior or current legislatures, but only to contextualize the present debate. As others have argued in 2016, calling these actions “unprecedented,” a “contempt for democracy,” or the actions of “sore losers” is not persuasive when both parties have been doing it.

Federal or state, Democrats or Republicans, legislative or executive, making consequential decisions in the last minutes of an administration that will affect the next is an unfortunate part of the political gamesmanship of modern politics.