@NCCapitol

@NCCapitol

Ruling closes door on eight-member NC elections board

Posted March 5, 2018 5:50 p.m. EST
Updated March 6, 2018 11:50 a.m. EST

Members of the State Board of Elections work their way through a marathon hearing on Sept. 8, 2016.

— The eight-member State Board of Elections and Ethics Enforcement is officially dead.

The three-judge panel that has twice heard legal challenges to the board over the past year issued a final order Monday nullifying the portion of the December 2016 law that dictated how members of the panel would be chosen.

The order essentially carries out a Jan. 26 ruling by the state Supreme Court, which decided 4-3 along party lines that lawmakers overstepped their authority in trying to combine the State Board of Elections and the State Ethics Commission.

The panel was to be split evenly between Democrats and Republicans, and Gov. Roy Cooper argued that would often leave the board deadlocked on decisions such as the amount of early voting offered and polling sites in various counties. Previously, the five-member elections board was controlled by the party of the governor.

""The General Assembly cannot ... structure an executive branch commission in such a manner that the Governor is unable, within a reasonable period of time, to 'take care that the laws be faithfully executed' because he or she is required to appoint half of the commission members from a list of nominees consisting of individuals who are, in all likelihood, not supportive of, if not openly opposed to, his or her policy preferences while having limited supervisory control over the agency and circumscribed removal authority over commission members," Justice Sam Ervin IV wrote for the Democratic majority on the court.

After that ruling, lawmakers last month included a provision in a bill on class sizes to add a ninth position to the elections board. That person wouldn't be affiliated with either the GOP or the Democrats. The legislation, which Cooper is allowing to become law without his signature, also gives the governor more power to remove people from the board as long as the person is replaced by someone of the same political persuasion.

"We appreciate the court preserved a merged bipartisan elections and ethics board, which polling shows nearly 80 percent of North Carolinians support, and rejected Gov. Roy Cooper’s arguments to resurrect a law that was already taken off the books just because his party would benefit," Senate President Pro Tem Phil Berger and House Speaker Tim Moore said in joint statement. "We have addressed the court’s concerns about the board’s membership in a bill Gov. Cooper has already promised to allow to become law, and we once again encourage him to abandon taxpayer-funded and self-serving lawsuits."

The board has been vacant since last summer, as courts have allowed Cooper to put off appointing any members while the legal wrangling played out.