If at first you don’t succeed, try, try again. North Carolina Republican legislators adopted this adage this week when they snuck major election board changes into a Tropical Storm Helene recovery bill.
The omnibus bill, called the Disaster Recovery Act of 2024 – Part III, dedicates $227 million from North Carolina’s rainy day fund toward the Helene Fund, to be appropriated by the legislature later.
But it also touches on a laundry list of other issues, including the makeup of the State Board of Elections and county boards of election, as well as deadlines related to voter registration, provisional ballots and absentee ballots.
The changes transfer appointment power of State Board of Elections board members and county election board chairs away from the governor — and to the state auditor.
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After passage in both chambers, the bill now goes to Gov. Roy Cooper to sign or veto. Senate President Pro Tempore Phil Berger said he expects Cooper to sign it, but if he vetoes it, suggested that the legislature would override it during its December session.
Democratic Sen. Julie Mayfield, who represents Buncombe County, said she was “extraordinarily disappointed” that hurricane relief and the election changes were included in the same bill.
“They did not have to do that,” Mayfield said. “I want to be able to vote, as I know my colleagues do, for every dollar for relief for Western North Carolina. And I can’t do that today.”
Berger did not offer a reason why the bill wasn’t divided, but said it was within legislative rules to consider the issues together in one bill.
Mayfield added that she thinks much of what’s in the bill will be found unconstitutional, but that it will take time for the courts to make that determination.
“My view is that all of these changes move us even further down the road than we already are toward an authoritarian state,” Mayfield said.
“The General Assembly is pulling power into it and elevating itself as the center of power in North Carolina, and that is not what our Constitution says, and that is not true to the separation of powers.”
It’s not the first time North Carolina Republican legislators have made such an attempt. Their first, slightly different attempt, is currently blocked by the Wake County Superior Court pending Court of Appeals action. Democratic legislators have already threatened litigation if the current bill passes.
Last year, the Republican legislature attempted to wrest control of election board appointments from the governor with a law that would have transferred the power to appoint members to the State Board of Elections to the Republican-majority General Assembly instead of Gov. Cooper.
The law also would have expanded the State Board from five to eight members, which would split the board evenly down party lines as opposed to the current 3-2 split, with the governor’s party holding the majority. County boards of election would be reduced from five to four members, also evenly split down party lines.
The law passed over Cooper’s veto, thanks to the Republican supermajority in both chambers. However, upon becoming law, Cooper sued over the portion of the law involving changes to the election boards.
That litigation has been ongoing in North Carolina courts since October 2023. In March of this year, the Wake County Superior Court declared the challenged portions of the law unconstitutional.
The superior court ruled that the law violated the separation of powers outlined in the North Carolina Constitution.
In its order, the court said the law was a “stark and blatant removal of appointment power from the Governor” that does not give him enough control over the election boards to fulfill his constitutional duty to execute the law.
Defendants Berger and Speaker of the House Tim Moore argue in their appeal to the Court of Appeals that the state Constitution doesn’t include an “express textual limitation on the legislature’s ability to organize and appoint administrative offices.”
In fact, they trace their power to do so in another section of Article III of the state Constitution that gives the General Assembly the power to alter the functions, powers and duties of the administrative departments and agencies of the state from time to time.
Without an explicit limitation on their power, they argue that the courts are deciding which agency structure they believe works best, which is a political question. Instead, they ask that the courts stay out of the issue altogether.
Wednesday, Berger said his Republican caucus has been asking for partisan balance on the Board of Elections for years, but have been repeatedly rebuffed by Democrats. It was time to take action, he said.
The stakes rise: What this year’s bill says
But this time around, the clock is ticking on what the Republican legislature can do to pass any additional measures without bipartisan support. After county canvasses concluded, Republicans lost their supermajority in the state House by one seat.
The new legislature won’t be seated until January, but the change means that next year, House Republicans will not be able to override Democratic Governor-Elect Josh Stein’s vetoes. While they still have the power, now is the time for them to try to lock in changes that current Democratic Gov. Cooper may veto.
This year’s proposed bill would give newly elected Republican State Auditor Dave Boliek, a political newcomer, the power to appoint election officials. Boliek won his bid for auditor with 49% of the vote and will take office upon inauguration in January. Boliek is a lawyer who has previously worked in private practice and as an assistant district attorney.
Under current law, the state auditor’s duties include investigating the operations, accounting, efficiency and legal compliance of state agencies.
The State Board and county board sizes would remain the same, at five members each. Under the Republican auditor’s control, the fifth and deciding member would be a Republican, while the current law would allow Stein to choose Democrats for those same positions.
Even though the state will have a Democrat as secretary of state and a Republican as state auditor after the recent elections, Berger denied that picking the auditor for the job instead of the secretary of state was a partisan move.
He added that he doesn’t think there are many voters who voted for both Stein, a Democrat, and Boliek, a Republican. But for any who did, they probably weren’t basing their votes on who would appoint members to the State Board of Elections.
“What they would be more interested in is the elections process being properly administered without consideration of politics,” Berger said.
“And I don’t think anybody can objectively look at how the Board of Elections over the past probably seven plus years has functioned in a manner that is free from suspicion of partisan influence.”
The disaster recovery bill would also reduce the time voters have to request absentee ballots, fix issues on their voter registration forms and absentee ballots, and turn in their photo ID if they cannot produce it on Election Day in order for their vote to be counted. County boards of election would have one fewer week to research provisional ballots to determine whether they are eligible to be counted.
Under current law, voters have until 5 p.m. the day before the post-election canvass to fix issues with their voter registration, turn in photo ID if they can’t produce it on Election Day. They have until a week before Election Day to request an absentee ballot, and until end of business the day before the canvass to cure any deficiencies highlighted by the county boards of election.
The proposed bill would give voters until noon the third day after the election to fix issues with voter registration, absentee ballots and photo ID. Voters would have one fewer week to request absentee ballots.
County boards of election would have until 5 p.m. the third day after Election Day to research the eligibility of provisional ballots, as opposed to the previous deadline of the county canvass, 10 days post-election.
The House and Senate debate
During House debate on Tuesday, Republican Rep. Grey Mills said the goal of the bill is to improve the certainty of elections. Voters expect timely results, and he said this bill will help the State Board of Elections do so.
He also insisted that the state auditor is the “perfect” person to oversee elections.
“I submit to you that the state auditor is the best place for the Board of Elections,” he said. “Like the Board of Elections, the state auditor has a history of performing very important audits, investigations, just like our State Board is charged with doing after every election.”
House Democrats, on the other hand, labeled the bill as a blatant power grab. While the state auditor will not have management powers over the State Board, the auditor will have appointment power and will direct and supervise its budgeting process.
No other state places election power in the hands of a state auditor. Most either give the Secretary of State or a dedicated elections office control, Democratic Rep. Maria Cervania said.
“This is because election oversight and financial and operational audits of state agency agencies are very distinct,” she said.
Cervania questioned why the legislature would make this change when the State Board hasn’t been granted extra state funds since 2016, even as election changes that require more work like voter ID have been implemented.
“It’s going to create significant inefficiencies and jeopardize the effectiveness of the roles of both entities,” she said.
Voters didn’t know they were electing someone who would have power over election appointments when they cast their vote for auditor, House Democratic Leader Robert Reives said.
“They trust that the vote that they’re making for governor is for the actual governor and not for dog catcher,” he said.
Democratic Rep. Pricey Harrison agreed. She added that it’s likely unconstitutional to take appointments away from the governor and give them to the state auditor.
“But I guess we’ll find out once it gets litigated,” Harrison said.
Democratic Rep. Allen Buansi said the new timeline doesn’t allow county boards of elections enough room to notify voters of issues in time to fix them.
“In short, this bill will further stress our county board’s elections, because you’re adding much tighter deadlines without any new support or any additional funding,” Buansi said.
Brunswick County elections director Sara LaVere sent a letter to her county legislators Tuesday, before the bill made it to the floor.
LaVere, who is president of the North Carolina Association of Directors of Elections, shared concerns about the proposed provisional ballot deadlines and election day absentee ballot processing requirements.
She said during this year’s election, Brunswick County processed more than 1,000 provisional ballots. Each required “meticulous research,” including verifying voter registrations, auditing provisional ballots received on election night to determine which need further research and working with the DMV to confirm registrations.
Now, they have nine days, including weekends, to complete their work. The proposed bill would reduce that to three days.
“Condensing this process could lead to errors, jeopardizing the integrity of the election and voter confidence in the process,” LaVere wrote.
Additionally, she said removing the ability to count absentee ballots received before Election Day until 5 p.m. on that day, paired with the requirement to complete the tally by the Friday after Election Day would place an “undue burden” on their staff of six people.
Now, county boards can begin counting absentee ballots earlier on Election Day, and have until the canvass to tally them. These tasks would take the small staff away from Brunswick County’s 27 election day precincts where they are needed for “troubleshooting and ensuring smooth operations.”
“While I understand the intent to improve efficiency and transparency, these proposed changes fail to account for the operational realities at the county level and the complexity of election administration,” LaVere wrote.
Despite the letter, all Brunswick County state representatives voted to support the bill.
In the upcoming budget session, Berger told Carolina Public Press, the legislature may look into funding more elections staffing to handle tighter deadlines.
The votes were along party lines, with a few notable exceptions. Several Republican legislators representing Helene-impacted counties voted against the bill.
Tuesday night, the state House passed the bill 63-46, with House Republican Reps. Mike Clampitt, who represents Jackson, Swain and Transylvania counties; Karl Gillespie, who represents Cherokee, Clay, Graham and Macon counties; and Mark Pless, who represents Haywood and Madison counties, voting against the bill.
Wednesday afternoon, the bill moved to the state Senate, where Lt. Gov. Mark Robinson presided as Senate president.
The state Senate passed the measure 30-19.
In the middle of debate, Robinson called for law enforcement to clear the gallery, where the public was watching and applauding Democratic senators’ comments. Gallery rules require the public to remain quiet, which they were not after Robinson’s decision, chanting “Shame, shame, shame,” and calling out various other insults.
“You are overturning the will of the people,” one gallery member yelled.
Republican Sen. Ralph Hise echoed his House colleagues, emphasizing a desire to produce “a timelier resolution of election outcomes than we have continued to see drag on for two weeks” in this year’s election.
The issue isn’t effort, Democratic Sen. Mary Wills Bode said.
“Of course, we all want ballots to be counted faster and final results to come sooner,” she said. “But this isn’t Amazon Prime. This is the administration of our elections, upholding constitutional rights, which requires … thorough review and time to ensure that every valid vote is counted and every invalid vote is not.”
Bode compared the bill to players in a sports competition.
“What this bill proposes is the legislative equivalent of injuring the other team’s players in the final minutes of a game they know they’re going to lose,” she said. “For no other reason but to ensure that those players can’t do well in the next game.”
Editor’s note: This is a developing story and will be updated.
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