For the fifth time in a decade, a court has decided that the legislature cannot remove a governor’s power to appoint election board members. During a hearing last week in Wake County Superior Court, a three-judge panel ruled that a law attempting to give the governor’s elections appointment power to the state auditor would make it impossible for the chief executive to do their job as the North Carolina Constitution requires.
Currently, county election boards are comprised of five members, with two each coming from the Democratic and Republican parties. The governor gets to appoint the chair.
The governor also chooses all State Board of Elections members.
Ultimately, those appointment powers can give the governor, and by extension their political party, tremendous influence on election matters.
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Since former Democratic Gov. Roy Cooper won office in 2016, Republican lawmakers have made numerous attempts to take that deciding vote away.
Each time, they’ve fallen short.
In this latest attempt, the Republican defendants — Senate leader Phil Berger, House Speaker Destin Hall and State Auditor Dave Boliek — said they will appeal the ruling. While the players are different this time around, the case will undoubtedly end up in the hands of the state Supreme Court.
The state’s highest court has seen this play out before. But that was in 2017 when Democrats held the majority and narrowly struck down a separate attempt.
Eight years later, things have changed. Republicans hold a 5-2 advantage. That could make all the difference.
Appointment power and executive ‘hopscotch’
If courts ultimately side with the legislature, North Carolina will be the first state that grants any elections power to a state auditor.
Usually, that duty goes to a secretary of state, if anyone, but a Democrat won that office in the most recent election.
Ann Webb, the policy director for Common Cause North Carolina, hopes courts see through the “partisanship” of legislators.
But partisanship isn’t necessarily unconstitutional, as legislative attorney Matthew Tilley noted during arguments before the Wake County court.
In response, Wake County Superior Court Judge Lisa Hamilton said if they allowed this maneuver, there would be nothing stopping a future legislature from shifting election appointment power to another executive office, like the treasurer or agricultural commissioner, to ensure their party maintained control.
“I’m hoping that we’re not going to hopscotch around all nine members of the Council of State until we finally land on the one that would be appropriate,” Hamilton said during the hearing.
The court’s order reflected this concern.
While the General Assembly is allowed to assign duties to members of the Council of State, that right stops where the governor’s constitutional duty to faithfully execute the laws begins, the court ruled. The faithful execution of the laws is not a shared duty among all Council of State members, they continued.
Partisanship takes center stage
The final battle is set for the NC Supreme Court.
There, the major dynamic will be “partisan perspectives and allegiance versus constitutional principles,” Catawba College political science professor Michael Bitzer said.
“I think the expectation is that partisanship will be a determinative factor,” he said. “Whether it’s clearly enunciated in an opinion, I think we’ll just have to wait and see.”
Webb agrees. The state Supreme Court has shown a willingness to act in partisan ways, particularly when it comes to giving the legislature power, she said.
“It’s going to be very interesting to watch whether the state Supreme Court is willing to overturn its own precedent or twist the interpretation of its own precedent to allow that (power shift) to happen.”
North Carolina doesn’t have a particularly powerful governor, but that position does come with some fundamental executive power, Webb continued.
“If that gets dissolved piece by piece by the legislature, then we end up with a false pretense of an executive branch, and that’s not how it’s supposed to work and that’s not how voters assume it’s going to work,” she said.
Legislative leaders haven’t exactly shied away from the partisan angle.
In a statement on social media after the Wake County ruling, Hall, the House Speaker, said the Democratic-controlled State Board runs elections like its operating in “a banana republic, making up the rules as it goes.”
Pat Gannon, a spokesman for the State Board of Elections, objected to the characterization.
“These accusations about the bipartisan-run elections in our state are unfortunate and unfounded. In accordance with state and federal law, North Carolina’s voter rolls are maintained through careful processes that protect our elections and the rights of the voters,” he said in a statement to Carolina Public Press.
If the sixth time’s not the charm, Webb hopes legislators will finally stop. Or, at least, take a proven route in attaining appointment power: winning gubernatorial elections.
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