North Carolina judges block Legislature's bid to take power over elections board appointments

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North Carolina trial judges on Thursday blocked portions of a new law that would transfer Democratic Gov. Roy Cooper’s authority to pick election board members to the Republican-dominated General Assembly.

Following a 90-minute hearing, the three state judges agreed unanimously to issue a preliminary injunction sought by Cooper. His lawyers argued that the alterations to the State Board of Elections and county boards in all 100 counties need to be stopped now or his directive in the state constitution to "take care that the laws be faithfully executed" will be harmed irreparably.

The Republican legislative leaders whom Cooper has sued can appeal the decision to the state Court of Appeals. The outcome of the injunction request and Cooper's broader litigation on the law, which was enacted just last month, could affect how the 2024 elections are administered in the ninth-largest U.S. state, where races for president and governor are likely to be closely contested. The changes would take effect on Jan. 1.

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The state elections board currently comprises five members appointed by the governor — a format that goes back to 1901. The governor’s party always holds three of the seats.

The new law, which went into effect after Republican lawmakers overrode Cooper’s veto, would increase the board to eight members appointed by the General Assembly based on the recommendations of top legislative leaders from both parties. This would likely create a 4-4 split among Democrats and Republicans.

For several years, Republicans have pushed unsuccessfully to alter the composition of the board: They've been thwarted both by court rulings and a constitutional amendment that voters rejected in 2018.

Republican lawmakers say this measure is different, however, and will promote bipartisan election administration and consensus. And with Republicans now holding five of the seven seats on the state Supreme Court, supporters hope the state's highest court is more inclined to uphold the law.

Cooper and his allies have countered that the changes are a GOP power grab that will lead to board impasses that could erode early voting access and send outcomes of contested elections to the courts or the General Assembly to settle.

"Administering fair, secure elections is critical for our democracy and the courts have repeatedly found that partisan legislative attempts to take over the State Board of Elections are unconstitutional," Cooper said in a written statement after the judges' ruling.

North Carolina Governor Roy Cooper speaks to the crowd during an election night event for Democratic Senate candidate Cheri Beasley on May 17, 2022 in Raleigh, North Carolina. (Sean Rayford/Getty Images)

A spokesperson for Senate leader Phil Berger, who along with House Speaker Tim Moore is a chief defendants in Cooper’s lawsuit, said that legislative leadership would continue to fight to ensure that "North Carolinians trust the outcomes of the 2024 elections."

"The legislature voted to make the State Board of Elections a truly bipartisan board with an equal number of Democrats and Republicans. Gov. Cooper sued to have it controlled by only Democrats," Berger spokesperson Lauren Horsch said.

In presenting their arguments, Cooper’s lawyers relied on three state Supreme Court decisions going back 40 years that they say demand that a governor have control over executive agencies to carry out laws. Such control is necessary so that the governor can appoint a majority that shares his views and priorities, attorney Jim Phillips said.

One of the previous court rulings, in 2018, struck down a previous iteration of the state elections board that also would have the membership split evenly among Democrats and Republicans, but appointed by Cooper.

The latest law, Phillips told the judges, is "a far more egregious, invasive and unconstitutional structure."

An outside attorney for Berger and Moore, Martin Warf, argued that the law should be carried out while the lawsuit continues. He also wrote this week that since the state constitution fails to expressly prohibit the legislature from forming the elections board in this manner, the judicial branch should not decide the issue.

"If there is no limitation on the General Assembly’s authority to make laws, then they can make those laws if they deem it wise in the matter of public opinion," Warf said Thursday.

If the law takes effect on time, changes could happen quickly. For example, if a new eight-person state board can’t agree on hiring an executive director by Jan. 10, the law directs Berger to name one.

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Republicans have been critical of current Executive Director Karen Brinson Bell — hired by the board’s Democratic majority four years ago — in part for a legal settlement that extended deadlines to receive mail-in absentee ballots in the 2020 election.

Superior Court Judges Lori Hamilton and Andrew Womble — both Republicans — and Edwin Wilson, a Democrat, didn’t give a reason in court for issuing the injunction later Thursday. But Hamilton suggested during questioning that allowing the law to be carried out on Jan. 1 — only to have it be possibly struck down later — could cause confusion and disarray in a presidential election year.

"It seems to me that it’s seriously dangerous to be making changes of this nature" when the Supreme Court struck down a previous version of the board advanced by legislators, Hamilton said.

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The new law is not the only one being targeted by opponents. At least three lawsuits filed by Democrats and allied groups have been filed challenging a law that would tighten some rules for early in-person voting and eliminate a three-day grace period to receive and count absentee ballots as long as they are postmarked by Election Day. Those changes would take effect with the March primaries.