This post appears here courtesy of the Carolina Journal
. The author of this post is Mitch Kokai
If N.C. Supreme Court Chief Justice Cheri Beasley manages to keep her job beyond the end of this year, one could say her electoral opponent and fellow Justice Paul Newby has fallen victim to "perilous consequences."
Newby warned of those "perilous consequences" in a dissenting opinion almost three years ago.
Based on election rules set by state law, and administered by state and local elections boards dominated by Democrats, the Republican Newby defeated the Democrat Beasley in this year's chief justice election.
Yes, it was close. Out of almost 5.4 million ballots cast statewide, Newby topped Beasley by roughly 400 votes. That's less than one-hundredth of a single percentage point. Clearly, the margin separating the two candidates fell within the legal standard for a statewide machine recount. Once complete, that recount confirmed Newby as the winner. His winning margin changed by just five votes.
But Beasley has yet to concede. She is pursuing a partial statewide manual "hand-eye recount." That's her right. No one should complain about her reliance on election safeguards built into North Carolina's election law.
What should concern voters, though, is another piece of the Beasley team's post-election strategy. In addition to ensuring that all legally tabulated votes were counted correctly, she's also calling on elections boards to reinstate thousands of thrown-out ballots. These are ballots that county elections boards, led by Democrats, decided not to count during the normal election process.
Outside observers have noted that an overwhelming majority of ballots on Beasley's wish list come from Democrats. Only a handful were cast by Republicans. Media reports have detailed multiple flaws
in Beasley's request, including some ballots that would end up giving a single voter two votes in the chief justice's election.
If local elections boards refuse to act, Beasley hopes the State Board of Elections will rule in her favor. That's where Newby's "perilous consequences" come into play.
In January 2018 the state Supreme Court handed down a decision in one of multiple court cases dubbed Cooper v. Berger. Each case involved a fight between Democratic Gov. Roy Cooper and Republican state legislative leaders, including Sen. Phil Berger. This particular one focused on the state elections board.
After Cooper's 2016 election, GOP legislators had decided to alter the elections board's makeup. Rather than continue with a five-member board led by three members of the governor's political party, lawmakers created a new eight-member board. The two major parties each would hold four seats. Most board decisions would require some degree of bipartisan consensus.
Cooper took the legislature to court. He argued that the bipartisan elections board unconstitutionally infringed on his executive authority.
A three-judge Superior Court panel rejected Cooper's argument. So did the state Court of Appeals. But the Supreme Court reversed course
, with a 4-3 party-line vote. That vote tossed out the new elections board.
Beasley and other Democratic justices supported the ruling. Newby and Republican colleagues dissented.
"This case presents the question of whether the General Assembly has the authority to create an independent, bipartisan board to administer the laws of elections, ethics, lobbying, and campaign finance,"
Newby wrote. "Because the state constitution expressly commits this specific power to the legislative branch, this Court lacks the authority to intervene; the issue presents a nonjusticiable political question."
In other words, this is the type of political dispute courts should avoid.
"In exercising judicial power under these circumstances, this Court violates the very separation-of-powers principle it claims to protect,"
Newby added. "The Court strips the General Assembly of its historic, constitutionally prescribed authority to make the laws and creates a novel and sweeping constitutional power in the office of Governor — the authority to implement personal policy preferences."
Our constitution grants no such right to Cooper or any other governor, Newby explained.
"[O]nce the General Assembly passes a law, the constitution requires the Governor to 'faithfully' execute 'the laws,'" he wrote. "'The laws'" are not the Governor's policy preferences, but are those measures enacted by the General Assembly."
Labeling the majority's ruling "novel," in the sense of having no basis in the state constitution or its historical interpretation, Newby issued a warning. Cooper v. Berger created two problems, "forecasting perilous consequences for years to come."
First, the decision was likely to thrust the state Supreme Court into more future political disputes. Second, the decision "judicially amends" the state constitution. It granted the governor a new power to "enact personal policy preferences, even elevating those preferences over the duly enacted laws when they conflict."
"The only separation-of-powers violation in this case is this Court's encroachment on the express constitutional power of the General Assembly,"
The 2018 Cooper v. Berger decision forced state lawmakers to reconstitute the state elections board. After courts foiled an attempt to create a nine-member board, with a tie-breaking unaffiliated voter, the General Assembly eventually reinstated the old system.
So the elections board in place today has three Democrats and two Republicans. That outcome stems largely from Cooper's legal fight to get his way.
Now the Democrat-dominated elections board will decide how to respond to questionable pleas from Beasley, the Democratic governor's handpicked chief justice appointee. Reporting on the issue
, Carolina Journal declared: "The outcome will test the board's independence."
That's an understatement.
Every decision the board makes in this case will face extra scrutiny. Observers will watch for signs of partisan bias. It's hard to imagine that any outcome favoring Beasley could escape accusations that Democrats have twisted the rules to benefit one of their own.
And Newby would be left to cope with one of the perilous consequences he predicted nearly three years ago.
Mitch Kokai is senior political analyst for the John Locke Foundation.