In a significant legal development, a North Carolina appeals court recently decided that new legislation removing the governor’s authority to appoint State Board of Elections members can remain effective despite being deemed unconstitutional by trial judges. On Wednesday, a panel comprised of three judges from the intermediate-level Court of Appeals unanimously agreed to the motion by Republican leaders in the legislature to temporarily annul the trial verdict. This ruling suggests that, unless overturned by the state Supreme Court, the responsibility of appointing board members would shift from the newly elected Democrat Governor, Josh Stein, to the Republican State Auditor, Dave Boliek.
In this scenario, Auditor Boliek would swiftly make appointments to the board from candidate lists submitted by both the Democratic and Republican parties in the state. Late on Wednesday, Stein’s attorneys appealed to the Supreme Court to momentarily halt the appeals court’s judgment. Traditionally, the governor has appointed five board members, three from their own party. The revised statute suggests an anticipated Republican majority on the board due to this shift in appointment power.
However, the Court of Appeals did not provide the reasoning behind its ruling or disclose the identities of the judges involved, with this information typically disclosed 90 days post-ruling. Of the 15 judges on this court, 12 are Republicans, and three are Democrats. This ruling arises amid a legal confrontation by Stein and former Governor Roy Cooper, who argued that the General Assembly’s December legislation interfered with the governor’s constitutional duties to ensure laws are executed properly.
Republican lawmakers argue that the state’s constitution permits the dispersal of executive branch powers to statewide elected individuals such as the auditor. They maintain that governors held excessive control over elections, resulting in partisan management and diminishing voter trust. The board is responsible for enforcing campaign finance regulations, verifying election outcomes, and managing voting operations.
Conversely, Democrats criticize the laws as strategic moves by the GOP to unjustly consolidate power in North Carolina, a key battleground state. This dispute is especially relevant to the currently unresolved state Supreme Court election, which might alter future electoral litigation involving candidates Allison Riggs and Jefferson Griffin. Governor Stein highlighted the critical nature of the court’s ruling, expressing his concerns on social media, describing the decision as a threat to democracy and urging the Supreme Court to overturn it.
Recently, a trio of trial judges sided 2-1 with Governor Stein, permanently halting the transition of appointment powers along with other changes, including enabling Boliek to designate election board chairs across the state’s 100 counties. The dissenting judge supported the law, asserting that the General Assembly possesses constitutional rights to allocate new powers to the state auditor.
Republican legislative leaders petitioned the Court of Appeals to uphold the law while further legal debates ensue, claiming the trial judges’ majority errored in their conclusions. Senate Leader Phil Berger issued a statement acknowledging the appeal court’s affirmation that the governor is not the sole executive authority in the state. However, Governor Stein’s legal representatives yesterday argued that the legislators’ plea lacked justification for undermining a century-old tradition and several Supreme Court decisions.
Although the terms of the current board members were set to extend until 2027, Boliek indicated his readiness for the appointment responsibilities. Since 2016, the Republican-controlled legislature has persistently attempted to undermine the governor’s authority over the state’s election board. Previous legal actions successfully stopped four similar laws targeting Cooper’s powers, and a constitutional amendment proposed in 2018 was rejected by voters, which would have given legislative leaders increased influence over board appointments.