RALEIGH, N.C. — A panel of North Carolina judges weighed arguments Wednesday on whether a new law that transfers Democratic Gov. Roy Cooper’s powers to choose election board members to the now Republican-controlled legislature should be struck down or can be enforced.
The same three trial judges already sided in late November with Cooper and blocked the new structures for the State Board of Elections and boards in all 100 counties from taking effect with the new year while his lawsuit continued. That preliminary injunction is still in place. The judges didn’t immediately rule Wednesday on additional motions to resolve the case.
Attorneys for Cooper now want a more permanent decision declaring that the 2023 changes are unconstitutional by interfering with a governor’s duties to “take care that the laws be faithfully executed” within an executive branch agency. Republican legislators want the lawsuit dismissed so the changes can be implemented in time for the November elections.
For over 100 years, the state elections board has had five members appointed by the governor, and the governor's party holds three of the seats.
The new law would increase the board to eight members appointed by the General Assembly based on the recommendations of top legislative leaders from both parties -- likely leading to a 4-4 split among Democrats and Republicans. Four-member county boards also would be picked through legislative leaders' choices.
Cooper's lawyers cited three state Supreme Court decisions going back over 40 years and an unsuccessful 2018 constitutional referendum initiated by the General Assembly to alter the state board’s makeup as evidence that the latest iterations of elections boards are unconstitutional.
Boards on which the governor has no appointees and is limited in removing members leave "the governor with little control over the views and priorities of the majority of the members of those executive branch groups, and prevents the governor from having the final say on how the laws are executed,” Cooper attorney Jim Phillips told the panel.
But an attorney for the General Assembly’s GOP leaders said the idea that a governor must have control over a board doesn't apply when the General Assembly decides that a governor should have no appointments to begin with. Republicans have said the changes would promote bipartisan election administration and consensus that will increase voter confidence, especially with the state board.
“What they have tried to do is find a way to make that particular board independent of political influence, because it’s an area of law that applies to all three branches of government,” said Martin Warf, representing House Speaker Tim Moore and Senate leader Phil Berger. The legislative, executive and judicial branches are all subject to elections.
Superior Court Judge Edwin Wilson, the panel’s presiding judge, said at the close of just over an hour of arguments that the panel would aim to issue decisions by the end of next week. The panels’ decision can be appealed. Superior Court Judges Andrew Womble and Lori Hamilton are also hearing the case.
The lawsuit is the latest filed by Cooper over the past several years challenging General Assembly laws that he argues unlawfully weakens his position. Another pending lawsuit goes after recent changes to several other boards and commissions.