Publisher's Note: This post appears here courtesy of the John Locke Foundation. The author of this post is Jim Stirling.
Senate Bill 749, "No Partisan Advantage in Elections,"
passed along party lines in the North Carolina Senate and now moves on to the state House.
As the bill's name implies, SB 749 changes the composition of the state board of elections and county boards from favoring the governor and his political party to an even split between the state's two largest political parties. The State Board of Elections will change from a 3-2 majority to a 4-4 split between Democrats and Republicans. County boards of elections will change to a 2-2 format, losing one member from their board.
(Most states leave the administration of elections to an elected secretary of state. North Carolina rejected that approach, instead appointing an independent agency rather than an elected official to oversee our election process. This is so we have elections administered in an even-handed fashion. Unfortunately, our current system is not accomplishing that.)
Democrats have complained about this move, with Governor Cooper calling the proposed change an "Unconstitutional power grab"
and saying, "The last thing our democracy needs is for our elections to be run by people who want to rig them for partisan gain."
The claim that an evenly divided board is somehow rigging our election is ironic, given the questionable actions the State Board of Elections conducted during the 2020 election. The board utilized its emergency powers and participated in a collusive settlement with Marc Elias to circumvent state law. Theoretically, an evenly divided board will force compromise from both major political parties in the state rather than allowing one party to have an advantage based on who is in the governor's office.
Republicans benefited from the board's current partisan split when Republican Pat McCrory was governor in 2016. After the election had been called for Roy Cooper in the North Carolina Gubernatorial election, the state board of elections, under a 3-2 Republican majority, granted McCrory a full recounting of Durham County's ballots.
While balancing the state and county boards of elections is a good thing, the bill has flaws and goes against current court precedent.
In a 2016 special session, the state legislature passed legislation modifying the state board of elections, moving four of the eight appointments away from the governor and giving them to the speaker of the House and the pro tem of the Senate instead. A superior court established that the board of elections must be under executive authority and rejected the idea of legislative appointments, citing McCrory v. Berger. The court was correct in ruling against the state legislature as the administration of elections is inherently under the executive branch's authority.
The Legislature attempted to comply with that court order by keeping all the appointments to the board of elections while establishing an evenly divided board in 2017. The supreme court rejected this notion under Cooper v. Berger, establishing that the governor's party must maintain a majority to implement the "Governor's policy preferences."
This elicited a scathing dissent from Justice Martin, accusing the majority of distorting the McCrory v. Berger case. Justice Martin rejected the majority idea that the governor must have "a majority of voting members who share his views and priorities."
Republicans in the Legislature should listen to Martin's writings in the McCrory v. Berger case and his dissent in Cooper v. Berger. While the notion of an evenly divided board would likely comply with the state constitution, the administration of elections should be housed under the Executive branch.