Divided court throws out legislative changes to NC elections board

Judges in Cooper v. Berger find legislature usurped governor's power, but no changes until after November elections.

Posted 10:11 p.m. Oct 16, 2018 — Updated 11:47 a.m. Oct 17, 2018

Travis Fain

, WRAL statehouse reporter

RALEIGH, N.C. — A divided panel of state judges on Tuesday voided changes the General Assembly made over the last year to the state elections board, agreeing with Gov. Roy Cooper that the legislature went too far in sapping his authority to shape the board.

But the court also delayed its order in the long-running case, allowing the current board to remain in place through the November elections.

The General Assembly's Republican majority can appeal the decision, though North Carolina voters could render the issue moot if they approve a GOP-backed amendment to the state constitution this November that would put lawmakers in charge of naming members to the State Board of Elections and Ethics Enforcement.

Superior Court Judges Todd Burke and Jesse Caldwell joined together to declare unconstitutional a series of changes lawmakers implemented in March. Judge Jeff Foster dissented, saying he felt the questions at issue were political ones that should be left up to the legislative process, not the courts.

Among the panel's findings:

That it's unconstitutional to require that the chairs of state and local election boards must be from the political party with the second most registered voters – currently the Republican Party – in years with presidential and gubernatorial elections as the law does now.
That the way the legislature appointed the state board's executive director, and forbade the governor from removing her until at least 2019, was unconstitutional. The director is Kim Westbrook Strach, who has been in the position since former Gov. Pat McCrory's administration. Her husband is a lead attorney for Republican legislators in a series of redistricting lawsuits.
That the governor wasn't left enough power to remove state board members.

Cooper challenged four individual provisions, and the act as a whole, and he won on both arguments.

The decision is the latest chapter in a dispute that stretches back to before Cooper even took office and has gone before the state Supreme Court twice.

After he defeated McCrory in 2016, lawmakers held a special session before Christmas in which they first merged the five-member State Board of Elections with the eight-member State Ethics Commission and took control of naming four Democrats and four Republicans to the combined board.

Cooper challenged the law, which had been signed by McCrory, and the same three-judge panel ruled in his favor. After lawmakers tweaked the law to give the governor more power to appoint and remove members, the judges gave their blessing, and denied Cooper's continued challenge.

The Supreme Court had to hear the case twice because the three-judge panel didn't provide enough context in its ruling in favor of the board, and the high court ruled in January that the eight-member board still didn't provide Cooper with enough authority to ensure state elections laws could be carried out.

Lawmakers returned this year to add a ninth, unaffiliated member to the board, but Cooper once again challenged the makeup, leading to the latest ruling.

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