Judge blocks GOP revamp of election boards after Cooper sues
Posted December 30, 2016
Updated January 5
Raleigh, N.C. — A Superior Court judge issued a temporary restraining order Friday to stop a state law the Republican-led General Assembly passed two weeks ago to change the structure of North Carolina's state and county boards of elections from taking effect Sunday.
The order came hours after incoming Democratic Gov. Roy Cooper on Friday filed a legal challenge to the law, which rolls the state's Board of Elections, Ethics Commission and a division of the Secretary of State's Office that oversees compliance with lobbying laws into a single independent agency run by an eight-member board split evenly between Republicans and Democrats.
Judge Donald Stephens has set a Jan. 5 hearing to determine whether the law should be put on hold indefinitely until courts can determine whether it's constitutional.
Under Senate Bill 4, lawmakers would appoint four of the eight members of the new board, with the governor appointing the other four, and a super-majority of six votes among board members would be needed to exercise most of the board's oversight powers, including issuing subpoenas or calling new elections.
Currently, the governor appoints all five members of the State Board of Elections, with three members coming from his or her party.
Likewise, the majority of three-member county elections boards come from the governor's party, but the new law would replace them with four-member boards evenly divided between Republicans and Democrats. Under the law, Republicans would chair the state board and all county boards during even-numbered years – when major elections take place.
The changes violate the separation of powers by giving lawmakers more control over the executive branch function of administering elections, said Jim Phillips, an attorney for Cooper. He argued that the partisan split on the board and the requirement of super-majority approval – six members would even be needed for a quorum to meet – effectively paralyzes the board from taking any action.
"The governor's appointees will effectively be in the minority because they cannot control the board," Phillips said. "The legislative appointees would be able to stymie any action."
Phillips pointed to a lawsuit Gov. Pat McCrory filed against lawmakers two years ago over appointments to various state commissions. The state Supreme Court ruled in McCrory's favor, determining that the General Assembly had overstepped its authority by trying to control panels that carry out executive functions.
"If you look at the appointment, the day-to-day supervision and the ability to remove (board members) in this new statute ... you find, as the Supreme Court did in McCrory v. Berger, that the legislature has gone too far," he said.
Martin Warf, an attorney for Senate President Pro Tem Phil Berger and House Speaker Tim Moore, said the two disputes aren't alike. While the Coal Ash Management Commission and other panels challenged by McCrory clearly carried out executive branch functions, both the State Board of Elections and the Ethics Commission are independent, quasi-judicial agencies.
"The boards as they exist today are not under the control of the governor. There's been no change in that by combining these two together," Warf said.
He also contended that Cooper cannot assume that the new board would repeatedly be deadlocked solely because it would be evenly divided between Republicans and Democrats.
Still, Stephens questioned how the board would act whenever it was deadlocked since the law doesn't spell out any remedy.
"Is not this board responsible for the supervision of fair elections?" he asked. "If it fails to properly act to supervise and guarantee every citizen the right to vote in a fair election ... would that be a system that might be subject to a constitutional challenge?"
Under the law, the current State Board of Elections would have been disbanded as of Sunday, and the eight members of the Ethics Commission would handle all election-related matters until a new eight-member board is appointed in July. Cooper's lawsuit notes that court-ordered primaries in redrawn state House and state Senate districts come only a few weeks after that.
McCrory filled a vacancy on the Ethics Commission on Friday, appointing John Branch, an attorney who represented the governor's campaign in various challenges to results in the Nov. 8 election before the State Board of Elections. Branch succeeds Chairman George Wainwright Jr., a former state Supreme Court justice who had headed the commission for two years before stepping down.
Republicans immediately accused Cooper of partisan politics in his lawsuit.
"Given the recent weeks-long uncertainty surrounding his own election, the governor-elect should understand better than anyone why North Carolinians deserve a system they can trust will settle election outcomes fairly and without the taint of partisanship," Berger, R-Rockingham, said in a statement. "Roy Cooper’s effort to stop the creation of a bipartisan board with an equal number of Democrats and Republicans to enforce elections and ethics laws may serve his desire to preserve his own political power, but it does not serve the best interests of our state."
"After a close and divisive election, instead of seeking a bipartisan review of election and ethics issues, Gov.-elect Cooper has chosen to go into full partisan attack mode," Robin Hayes, chairman of the North Carolina Republican Party, said in a statement. "Instead of seeking real and reasonable bipartisan solutions that provide confidence for everyone in the nation that North Carolina ethics and election decisions are partisan free, he instead shows exactly why this change to a bipartisan system is needed."
Dispute over court's authority
Stephens and Noah Huffstetler, an attorney for Berger and Moore, got into a heated exchange over whether the judge even had the authority to entertain Cooper's request for a restraining order.
Under a state law enacted a few years ago, all constitutional challenges to state laws must be heard by panels of three Superior Court judges. Huffstetler said that law prevents Stephens from entering any order in Cooper's lawsuit.
"So, the legislature could enact a statute clearly unconstitutional on its face, which would have devastating effect to the state of North Carolina and put it into effect immediately, and until such time that the judicial system could create, empanel and hear a challenge of that law, it would have full force and effect, and no one could stop it," Stephens said. "Is that what you're telling me?"
Huffstetler said he was sure three-judge panels would be assembled in a timely manner, but Stephens said there isn't enough time before Senate Bill 4 takes effect. Any decisions he makes, he said, would eventually be subject to the rulings of a three-judge panel.
"If I do nothing, the State Board of Elections will not exist on Monday morning," the judge said. "How do you recreate a board that was disbanded?"
Friday was the second straight day Stephens took action to put a new state law on hold. On Thursday, he issued a temporary restraining order against a law that transfers some powers from the State Board of Education to the state superintendent of public instruction.
Phillips said Cooper might file more challenges next week to laws the General Assembly passed during its special session two weeks ago.
Senate Bill 4 also turns all state Supreme Court elections into partisan campaigns and sets up procedures for the state Court of Appeals, which usually hears cases in three-member panels, to have all 15 members hear some appeals. Neither of those provisions was challenged by Cooper's lawsuit.