Lawmakers seek amendment to settle elections board court fight

Posted June 25, 2018 2:05 p.m. EDT
Updated June 25, 2018 2:25 p.m. EDT

One of several deadlocked votes Wednesday, March 21, 2018, for the new N.C. State Board of Elections and Ethics Enforcement. Republicans and Democrats on the board took several 4-4 votes before agreeing on two nominations as the board's potential ninth member. One GOP member is not pictured and participated in the meeting by telephone.

— Republican state lawmakers are moving ahead on a sixth proposed constitutional amendment that would once again restructure the State Board of Elections and Ethics Enforcement. It would also, sponsors say, put an end to long-running litigation over the boundaries of executive and legislative power in the state constitution.

Critics of the proposal, unveiled late Friday, say it’s setting the scene for legislators to take away the governor’s traditional appointments to many of the state’s quasi-judicial oversight boards and commissions.

Supporters counter that the legislature already has ultimate delegating power over all appointments to all state boards and commissions that set policy. However, courts have not always agreed.

The measure was scheduled for a House vote Monday evening. If it's approved by three-fifths of the House and the Senate, it would be on the ballot in November.

Under the first portion of the proposed amendment, the elections board would have eight members, half to be appointed by House and Senate majority leaders and the other half by House and Senate minority leaders. No more than four members could be of the same party.

Gov. Roy Cooper would have no power to appoint any of the members.

It would be the third overhaul of the state elections board since Cooper was elected in 2016. But the conflict over appointments to boards and commissions goes back further to former Gov. Pat McCrory's administration. McCrory, a Republican, sued Republican legislative leaders over the construction of a commission to oversee the state’s coal ash cleanup, saying it intruded on his ability to execute the laws of the land.

In that case, the courts ultimately ruled in McCrory’s favor, saying the governor must be allowed appointments to boards that serve executive functions.

Cooper has made similar arguments, and most recently, the state Supreme Court agreed with him. In a 4-3 decision on party lines, the state’s highest court ruled in January that the legislature had overstepped its authority in its redesigns of the state elections board, making changes that infringed on his ability to execute elections laws.

Legislators disagreed, and the amendment, House Bill 913, is an attempt to end the litigation by rewriting the state constitution to give legislators ultimate power over all appointments to policy-making bodies.

“If the courts have already ruled on this issue and we’re rolling along, why do we have to put this into the constitution?” asked Rep. Becky Carney, D-Mecklenburg.

“The Cooper v. Berger decision and continuing litigation centers mainly around both of these questions, so we’re trying to answer them,” sponsor Rep. David Lewis, R-Harnett, said in a House Rules Committee meeting Monday morning. “We think it will give the people the opportunity to vote on their constitution, which should provide clarity and make these lawsuits go away, yes.”

Lewis also accused Cooper of attempting to exert political influence over the current nine-member state board. Under the current structure, the governor has the power to appoint eight of the nine members, although he must choose them from the nominees sent to him by the heads of the state’s Republican and Democratic parties. He can remove members at will.

“The people of this state have always endorsed the idea that a person whose campaign is regulated by this board shouldn’t be able to dismiss board members who may not be willing to vote the way they want them to vote,” Lewis said.

Rep. Robert Reives, D-Chatham, pointed out that giving lawmakers the authority to appoint the board would create the same problem.

“Somehow, the board has to be named, and then they have to be able to operate,” Lewis responded. “We’re trying to say they are free to act in the way that they feel they need to act.”

Carney asked whether the amendment would allow the legislature to take away all of the governor’s appointments to such boards as the Board of Transportation, the Utilities Commission or the Environmental Management Commission.

Lewis said it would, but he said Republican legislative leaders believe the General Assembly already has the power to do that.

“I don’t anticipate great changes to the way it’s done now,” Lewis said. “I certainly have no great desire to change those things. We’re just trying to make sure that it’s clear that we have the right to delegate those powers if we choose to.”

Cooper spokesman Ford Porter responded via email: “Legislative Republicans are fundamentally rewriting the constitution to exclude all North Carolinians but themselves from making decisions about what is in the best interest of the state. This amendment would disrupt the balance of power and destroy careful checks and balances of government, giving Republicans exclusive control over how you can vote, the cost of your energy bill and the quality of your drinking water.”