Sometimes the lines of authority get blurred, especially in government. North Carolina has a current example involving The General Assembly and the State Board of Elections (SBOE).
Lawmakers have their respective panties in a wad because the State Board settled a lawsuit prior to the 2020 election that the Honorables didn't like.
You will remember that in October/November 2020 there was a pandemic going on during the elections. Many were confined to their homes or restricted from going out in public. A record number requested absentee ballots to avoid risking their health on election day. Further complicating the situation, our Postmaster General appeared to be trying to slow down the mails, affecting the timely delivery of absentee ballots. Groups sued the SBOE, saying their safety was at risk, as was the possible disenfranchisement of their right to vote. They demanded that election rules be loosened to ensure all eligible voters were able to cast their ballots.
Our State Board considered these lawsuits and came to the conclusion the plaintiffs might prevail in court, but even if they didn't there was the strong likelihood election outcomes would be delayed. The SBOE board, consisting of 3 Democrats and 2 Republicans, agreed by a 5-0 vote to settle the lawsuit and extend the absentee ballot rules to allow ballots postmarked by election day to be counted if received within 9 days of November 3rd. They also loosened some of the requirements for witness signatures.
We previously allowed absentee ballots to be counted if postmarked on election day and received within three days of the vote. Seldom have these absentee ballots received after election day changed an election outcome. By law they can't be counted until after the polls close, so it was frequently a day or so before absentee totals were reported. Besides, election outcomes are not official until the elections are certified, which can be as many as 17 days after the vote.
Legislative leadership was incensed, claiming the SBOE had no legal right to make such a settlement and lawmakers went to court to object. Attorneys for the General Assembly presented oral and written arguments in opposition, however the US Supreme court upheld the settlement. Now lawmakers are just before passing a law saying only the legislature can settle future court cases. Not only do they strip the SBOE of authority to enforce rules and laws, but they almost guarantee future lawsuits and delays.
Our legislature should have joined us in applauding our SBOE for their oversight of an election during the worst health crisis in a century, an election where voting reached modern-day record levels and where elections were safe and well run, with practically no challenges of impropriety or problems. Instead, they launched a purely partisan political power play that moves them from just making laws into administering them.
The bill passed by the House and now in the Senate sends a terrible message to all of state government. It is so broadly written that any state agency or board could be rendered virtually toothless in resolving conflicts and begs the question why we even need a State Board of Election, Education or any board? If lawmakers are going to make administrative decisions, why do we even need the Executive branch?
We've seen how well our part-time legislature runs things. You might remember some years back lawmakers were disgusted with the way the State Health Plan was being run, so they moved it under their purview. After several years, during which problems grew even greater and unfunded deficits became even larger, they recognized they had created a monster and finally, sheepishly, placed the plan in the hands of the State Treasurer.
Our framers established three separate branches of government to provide checks and balances, believing too much power in too few hands is dangerous. Our constitution calls for the legislature to pass laws, the courts to interpret them and the executive branch to administer them. While it might be exhilarating or even intoxicating to serve in our legislature, lawmakers need stay in their lane and remember their role is to legislate, not administer.
Tom Campbell is a Hall of Fame North Carolina Broadcaster and columnist who has covered North Carolina public policy issues since 1965. He recently retired from writing, producing and moderating the statewide half-hour TV program NC SPIN that aired 22 ½ years. Contact him at firstname.lastname@example.org.