In split decision, three judge panel blocks changes to appointments to North Carolina Board of Elections
Decision likely to be appealed to the State Supreme Court…
Yesterday, in a 2-1 decision, a three-judge panel blocked changes to the appointment power for the North Carolina State Board of Elections.
Background:
Currently, North Carolina has a partisan-controlled Board of Elections, with three Democrats and two Republicans, both at the state and county levels. Last December, in the latest round of legislative changes, which have been overturned in court, the General Assembly passed Senate Bill 382 that shifted the appointment power for the State Board of Elections from the Governor to the State Auditor. Governor Stein then sued the legislature, alleging that the move was unconstitutional.
The ruling
The ruling granted the Governor’s motion for a summary judgement, which effectively blocked the transfer of appointment power.
Here is what the majority said in their ruling “Because the State Board and county boards exercise executive functions, the question becomes whether the Governor, under Senate Bill 382, has sufficient control over those entities. Again, Cooper I is controlling. Our Supreme Court has held that “Article III, Section 5(4) of the North Carolina Constitution requires ‘the Governor [to] have enough control over’ commissions or boards that ‘are primarily administrative or executive in character’ to perform his [or her] constitutional duty. The extent of the Governor’s control depends on his ability to appoint members, supervise their activities, and remove them from office.”
“Senate Bill 382 interferes with the Governor’s constitutional duties. All appointment powers for the State Board have been removed from the Governor and given to the State Auditor. And the Governor has no power to fill vacancies or remove members of the State Board, whether for lack of attendance or for cause. Thus, Senate Bill 382’s changes violate the Constitution.”
Here is what the dissenting judge wrote, “The constitution likewise gives the Governor specific guidelines by which he may influence the allocation of administrative functions, powers, and duties. Nonetheless, the text reserves the final authority for the legislative branch. Id. Thus, while the Governor has general supervisory responsibility, each constitutional executive officer is primarily responsible for executing the laws assigned to that official by the General Assembly.
“The General Assembly in Senate Bill 382 reassigns the duties of the auditor, while keeping the appointment power within the Executive Branch, which is still subject to the supervision and direction of the Governor. The plain text of the constitution establishes the Auditor as a member of the executive branch and authorizes the General Assembly to assign his duties. Thus, the decision to assign the duty of appointment of members to the Board of Elections to the Auditor is one the General Assembly was expressly authorized to make. As result, the Governor cannot show that Senate Bill 382 neither impedes his ability to take care that the laws will be faithfully executed nor violates the separation of powers clause.”
What they are saying
Republican State Auditor Dave Boliek said, “My office remains ready, willing, and able to take on the duties and responsibilities of overseeing board of elections appointments and budget administration. I stand by my arguments and will promptly be appealing this ruling.”
Democrat Governor Josh Stein said, “BREAKING: An NC three judge panel just affirmed the Governor’s longstanding power to make appointments to the State Board of Elections, declaring the legislature’s power grab unconstitutional. The North Carolina Constitution puts the Governor in charge of executing the law. That’s what the voters elected me to do, so that’s what I’ll do.”
Next Steps
This decision will likely be appealed until it reaches the Supreme Court of North Carolina. The legal questions raised by this case will likely require a Supreme Court decision to establish a clear legal precedent.