Judges strike down GOP law taking away elections boards appointments from NC governor

In a win for Democratic Gov. Roy Cooper, a court struck down a Republican-crafted law that would have stripped the governor of his appointments to elections boards.

The new law, passed as Senate Bill 749 over Cooper’s veto last year, would have also required the State Board of Elections and all county election boards to have an even number of Republicans and Democrats, raising concerns about potential deadlocked votes.

Under current law, election boards are structured to have three members of the governor’s party and two from the other major party.

A panel of three Superior Court judges, two Republicans and one Democrat, sided with Cooper, finding the GOP-enacted law to be unconstitutional. That same panel — Edwin Wilson, Lori Hamilton and Andrew Womble — had already temporarily blocked the law from taking effect in November.

In a seven-page order released Tuesday, the judges wrote that the Republican effort to remove Cooper’s power to appoint members of state and county elections boards clearly “infringes upon” the governor’s constitutional duties, and marked “the most stark and blatant removal of appointment power” since previous cases over appointment powers like McCrory v. Berger and Cooper v. Berger.

Republican leaders, who are named as defendants in the case, have appealed the ruling to the N.C. Court of Appeals.

Lawyers for Cooper had argued that the new law unconstitutionally stripped the governor of executive power and transferred it to the legislature. Legislative leaders, however, argued that it was within their powers to shift the composition of the boards and outside the court’s jurisdiction to rule on.

The judges rejected the argument by legislative leaders that this case posed a political question that couldn’t be decided by the courts, and that the relevant precedent was Harper v. Hall, in which the N.C. Supreme Court’s Republican majority reversed a ruling by a previous Democratic majority that found that the state constitution forbade partisan gerrymandering.

Cooper v Berger decision released March 12, 2024 by Jordan Schrader on Scribd

In that April 2023 decision, the GOP justices on the Supreme Court said there was no such prohibition, and ruled that such claims were political questions for other branches to decide.

But in their order striking down the elections boards appointments law, the three judges wrote that Harper v. Hall did not announce “a new standard for how to determine whether an issue is a nonjusticiable political question.”

The judges also found that Harper v. Hall wasn’t relevant because it was limited to redistricting.

The court said it couldn’t look past Cooper v. Berger, another separation of powers case that directly dealt with a situation “where the General Assembly restructures and reconstitutes a board with final executive authority,” to a case that “examines a wholly different authority granted to the General Assembly and relies on different sections of the Constitution, in order to apply the political question doctrine.”

Reacting to the ruling on Tuesday, Cooper said that the State Board of Elections in its current composition “continues to uphold the highest standards of fairness.”

“Republican leaders should stop their efforts to control the ballot box and sow chaos before the November elections,” Cooper said in a statement on X. “Bipartisan courts and voters have repeatedly rejected these clearly unconstitutional attempts to seize control of elections.”

Lauren Horsch, a spokeswoman for GOP Senate leader Phil Berger, questioned why Cooper was against the creation of the bipartisan elections board the law mandated.

“For someone who claims to have concerns about election interference, Gov. Cooper is stopping at nothing to keep complete, single-party control of elections administration,” Horsch said in a statement. “One should question why he so vehemently opposes the creation of a bipartisan board of elections. What’s he afraid of?”