Supreme Court sides with Cooper in fight over NC elections board
Posted January 26, 2018 4:35 p.m. EST
Updated January 26, 2018 7:02 p.m. EST
Raleigh, N.C. — A divided state Supreme Court ruled Friday that the General Assembly overstepped its authority last year when it overhauled the state elections board.
The court ruled 4-3 along party lines that the way the State Board of Elections and the State Ethics Commission were combined interferes with Gov. Roy Cooper's ability to ensure elections laws are properly carried out.
"I appreciate the Court's careful consideration. Access to the ballot box is vital to our democratic process, and I will continue to protect fair elections and the right of North Carolinians to vote," Cooper said in a statement.
Senate President Pro Tem Phil Berger called the ruling "breathtakingly partisan" in a series of tweets, noting that lawyers for legislative leaders were still reviewing it.
The positions on the new Board of Elections and Ethics Enforcement have been vacant for months, as Cooper declined to appoint any members until the lawsuit was resolved – a decision backed by the courts. It was unclear Friday when such appointments will be made.
The legislative push to merge the two boards into a single eight-member panel split evenly between Democrats and Republicans has been the focus of a power struggle between Cooper, a Democrat, and Republican leaders in the General Assembly since the measure was first passed in a special session two weeks before Christmas 2016.
A panel of three Superior Court judges initially ruled with Cooper on the legality of the move, but lawmakers tweaked aspects of the merged board – the new legislation passed over Cooper's veto – to gain the panel's approval for it.
Cooper maintained that an evenly divided board would frequently deadlock on decisions such as the amount of early voting offered and polling sites in various counties. Republican legislative leaders said such deadlocks couldn't be assumed.
Writing for the Supreme Court's Democratic majority, Justice Sam Ervin IV said the General Assembly was well within its rights to set the size of the board and its functions, but lawmakers went beyond that.
"The General Assembly cannot, however ... 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," Ervin wrote.
Chief Justice Mark Martin, in a dissent joined by Justice Barbara Jackson, wrote that the ruling "impermissibly constrains the General Assembly’s constitutional authority to determine the structure of state administrative bodies" by imposing a constitutional requirement that the governor be able to appoint a majority of elections board members from his or her party.
"The structure and makeup of the Board requires members to cooperate in a bipartisan way before taking any official action and encourages neutrality and fairness. But, strangely, the majority opinion constitutionalizes a partisan makeup of the Bipartisan State Board, which threatens to inject political gamesmanship into the implementation of our election and ethics laws and undermines the neutrality inherent in an evenly divided bipartisan composition," Martin wrote.
Justice Paul Newby went further in a separate dissent, agreeing with the three-judge panel that the makeup of the merged board was a political question that the courts shouldn't resolve.
"With today’s sweeping opinion, the majority effectively eliminates the political question doctrine, embroiling the Court in separation-of-powers disputes for years to come," Newby wrote. "The only separation of powers violation in this case is this Court’s encroachment on the express constitutional power of the General Assembly."