Three-Judge Panel Scraps Elections Board but Keeps it in Place Through Current Election | Eastern North Carolina Now

A three-judge Superior Court panel has found the Bipartisan State Board of Elections and Ethics Enforcement is unconstitutional because it violates the governor's duty to faithfully execute laws, and approved an injunction nullifying it

    Publisher's note: This post appears here courtesy of the Carolina Journal, and written by Dan Way, associate editor.

    A three-judge Superior Court panel has found the Bipartisan State Board of Elections and Ethics Enforcement is unconstitutional because it violates the governor's duty to faithfully execute laws, and approved an injunction nullifying it.

    However, with the Nov. 6 general election just three weeks away, the court let the elections board continue operating until the election results are certified.

    An amendment on the Nov. 6 ballot, if passed, would reconfigure the elections and ethics board and put those changes in the state constitution.

    The order in the Cooper v. Berger case, in which Gov. Roy Cooper sued Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, was released Tuesday, Oct. 16. Judge Jeffery Foster, a Pitt County Republican, dissented from the majority opinion of Forsyth County Judge Todd Burke and Gaston County Judge Jesse Caldwell, both Democrats.

    In his dissenting opinion Foster said the court should not address the matter because Cooper's complaints were political in nature, not constitutional.

    The elections board power struggle has several layers. It began when Cooper challenged a law passed by the Republican-led General Assembly on April 25, 2017, that reorganized the elections board by merging it with the State Ethics Commission.

    The law switched from a five-member board appointed by the governor to an eight-member board split evenly among Democrats and Republicans, to be appointed by the governor from a list of nominees provided by the political parties.

    The three-judge panel dismissed Cooper's challenge, but the N.C. Supreme Court reversed the decision 4-3, saying the evenly split board was unconstitutional, and returned the case to the trial court, which then voided the law.

    The General Assembly passed a new law Feb. 13, 2018, again reformulating the state elections board in much the same fashion, but adding a ninth unaffiliated member to be appointed by the governor from a list of two nominees submitted by the other eight members.

    Cooper allowed the law to take effect without his signature, but again filed a constitutional challenge March 13, and June 15 filed for summary judgment.

From left, Superior Court judges Todd Burke, Jesse Caldwell, and Jeffery Foster hear arguments in March 2017 in a lawsuit filed by Gov. Roy Cooper arguing that legislation passed during a December special session violates the separation of powers. (CJ photo by Don Carrington)

    Tuesday's majority found the structure of the new state board unconstitutional. They said the agency is primarily administrative or executive in character, but the governor can't choose a majority of the board. That's because four members are from the opposing party, and the board members recommend the unaffiliated member.

    Further, the governor can remove a board member for any cause, but he can't fill vacancies. The majority said the governor doesn't really have removal power.

    The ruling said the law violated separation of powers because the elections board executive director was appointed by the General Assembly, and could not be removed for 29 months. "As a result, neither the Governor nor his appointees to the State Board have any power of supervision over the Executive Director" of an executive agency.

    The panel found the new structure and chairmanship of county boards of elections to be unconstitutional.

    Previously, county boards comprised three members, two from the party of the sitting governor, and one from the other major political party. The new law set up an evenly divided four-member board, whose members can be removed by the state board. The appointive process for chairmen required a Republican to be in office during presidential and gubernatorial election years.

    "This Court can see no other reason for such provision other than to place one political party in control of the Chair of the County Boards at the most critical election times," the majority opinion stated. That deprived the governor of the ability to faithfully execute election laws in the manner he sees fit, the judges said.

    The same reasoning was used to declare appointment of the state elections board chairman unconstitutional because the political party with the second highest registration - currently the Republican Party - holds that post during presidential and gubernatorial election years.

    There has long been a political test for appointing the chairman from the party of the sitting governor, the order noted. "There was, however, never in place a provision which could deprive one party of the Chair of the State Board during every election year in which the Governor and the President were selected."

    Wednesday, House Rules Committee Chairman David Lewis, R-Harnett, and Senate Judiciary Committee Chairman Warren Daniel, R-Burke, issued a joint statement saying the General Assembly would seek an emergency stay of the entire ruling. They cited potential voter confusion which could ensue if voters think there's no formal agency enforcing election laws.
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