North Carolina
Foregone conclusion. Legal struggle over NC elections appointment power essentially ends with court ruling.
Technically, Democratic Gov. Josh Stein’s lawsuit against Republican leaders over the transfer of his election appointment power to the state auditor could go on for a number of months. But practically, it’s over.
Friday evening, the North Carolina Supreme Court ruled that the North Carolina Court of Appeals did not break any rules by allowing the power shift to go into effect on May 1, when a new State Board of Elections was appointed by Republican State Auditor Dave Boliek.
While the court did not technically rule on the state constitutional questions at play — does the power shift violate separation of powers or the governor’s duty to faithfully execute the law? — it clearly signaled its approval of the power shift in a 5-2 decision.
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Now, the majority Republican Court of Appeals will decide on those questions.
Ultimately, its decision may be appealed to the North Carolina Supreme Court to review again. Since the case deals only with the state constitution, there are no federal court appeal options, said Martin Warf, attorney for Senate President Pro Tempore Phil Berger.
North Carolina Democratic Party Chair Anderson Clayton confirmed.
“State court is where this is going to begin and die,” she said. “That’s what Republicans knew going into it.”
How we got here
For nearly a decade, Republican lawmakers have pushed for an elections appointment power shift.
Their various attempts have included a failed constitutional amendment creating an eight-member board with equal party representation, a law shifting appointment power to the legislature and an elimination of the board altogether to form a new Bipartisan State Board of Elections and Ethics Enforcement.
All have fallen short. Until now.
Last December, the legislature passed Senate Bill 382, a Hurricane Helene relief bill that also shifted elections appointment power from the governor to the state auditor, a newly Republican-held office.
In April, the Wake County Superior Court ruled 2-1 that taking away the governor’s election appointment power would hinder his constitutional duty to “take care that the laws be faithfully executed.”
A week later, an anonymous three-judge panel of the North Carolina Court of Appeals handed down a ruling allowing the power shift to go into effect while they considered the issue. The ruling did not include an explanation.
While Stein asked for the state Supreme Court to step in and postpone the changes until a full decision was made, the court did not do so. If that wasn’t enough to make the court’s stance clear, its Friday opinion certainly did the job.
According to the court’s reading of the state Constitution, the governor may head the executive branch, but he doesn’t “unilaterally exercise the executive power.” That’s for all 10 Council of State members, including the auditor, to share. Furthermore, the General Assembly is granted power under the state Constitution to assign many of those executive powers as they please, the opinion stated.
Separation of powers issues brought up by Stein are irrelevant, the opinion stated. While the legislature is the one making the decisions, the transfer of power is contained within the executive branch.
Democratic Justices Anita Earls and Allison Riggs dissented.
Earls accused her colleagues of “gaslighting” by claiming to not decide the constitutional issue while laying out their logic for supporting the power shift anyways. The majority opinion ignores precedent on executive power, and gives the legislature free rein to “reshuffle the powers and responsibilities of constitutional officers who are elected by the entire state,” she added.
“If the voters of North Carolina wanted a Republican official to control the State Board of Elections, they could have elected a Republican Governor,” Earls wrote. “If they wanted David Boliek (the Auditor) in particular to run our elections, they could have elected him Governor. The voters did not.”
After power shift, what’s next?
Democracy North Carolina policy director Katelin Kaiser worries that the state Supreme Court ruling will create a culture of fear.
What if Democratic Superintendent of Public Instruction Mo Green pushes back on the legislature’s stance on DEI? Are they going to modify his powers, Kaiser asked.
“It creates a requirement of loyalty to the North Carolina General Assembly,” she said. “Rather than the separation and balance of powers, it’s the General Assembly’s say, and if you don’t fall in line, you could be next.”
The courts won’t offer any relief, Clayton said, so instead she’s looking to another source of power: people’s voices.
It’s as important now as ever for educated voters to show up to election board meetings, Clayton said.
“It means making sure that we are present and vocal, and that we’re not also appointing folks that are going to just agree with what the Republican majority on the board says,” she said.
Further down the line, re-electing Justice Earls and flipping Republican state Supreme Court seats in 2028 is the Democratic plan, she said.
“We know that Republicans do not believe in fair and impartial judgments anymore,” Clayton said. “They believe in partisan acts and empowering their own party to ignore the Constitution.”
Kaiser said Democracy NC will bolster its county election board monitoring program and continue advocating for elections officials. For example, they’d like the legislature to change a 1999 law that allows county elections directors to be paid as little as $12 an hour.
“We’ve seen time and time again that their workload increases, and yet, many times the state does nothing to support,” she said.
There’s no question that Republican legislators will win the case, Common Cause policy director Ann Webb said. The only question is how long it will take until the litigation officially ends.
“I think the question is really up to the Governor at this point, whether to continue to pursue this case, recognizing that it’s been signaled from both of these courts where they stand,” Webb said.
Related
North Carolina
North Carolinians saw partial SNAP payments come in but it’s not enough, AG Jackson says
North Carolina Attorney General Jeff Jackson visited the Food Bank of Central & Eastern N.C. in Raleigh Friday to volunteer and talk about his lawsuit against the USDA over SNAP benefits.
Jackson sued the U.S. Department of Agriculture last week over the delays in Supplemental Nutrition Assistance Program (SNAP) benefits due to the federal government shutdown. November benefits for 1.4 million North Carolinians have yet to be delivered, leaving those families without the help they need to put food on the table.
He said that after “winning” the lawsuit, North Carolina is now fighting over what the remedy will look like after the USDA agreed to issue 50% of the payments. Jackson’s department is seeking to bring the case to court again to have USDA issue the full payment.
As a result of the lawsuit, Jackson added that as of early Friday morning, SNAP payments began going into the EBT cards of North Carolinians. Beneficiaries an average of 50% of their expected payments, but some saw up to 65% depending on their eligibility.
A federal judge in Rhode Island ordered President Trump’s administration Thursday to fully fund SNAP benefits for November by Friday.
However, just before Jackson’s appearance at the food bank, the Trump administration asked a federal appeals court for an emergency pause on this order, saying that because of the shutdown, there is only enough money to pay partial benefits for November.
The administration agreed earlier this week to use roughly $4.65 billion in contingency funds to cover 65% of the benefits for eligible households, but it could not draw from additional funds set aside for child nutrition programs to fully fund SNAP.
The Associated Press reported that if the shutdown continues into December, there is not a plan for funding at all.
When asked what the state would do if the government’s contingency funds dry up, Jackson he’d ask the state legislature to fill the gap in funding. North Carolina would need over $200 million a month to replace the SNAP funds that usually come from the federal government.
“There are other buckets of money that the agricultural department has access to, that’s the argument we’re making to the court,” Jackson continued.
It is very clear that before that happens, the shutdown needs to come to an end. We need to get the negotiators in the room, so that we’re not faced with the worst case scenario of this emergency fund running out, and people face zero dollars to buy groceries.Attorney General Jeff Jackson
Amy Beros, the president and CEO of the Food Bank of Central & Eastern NC, added that even before the shutdown, the organization saw record-breaking need and more hunger than they’ve experienced in serving 34 counties over two decades.
“[This shutdown] has been an added level,” Beros said. “Our partners were reporting before the shutdown, they were seeing anywhere between 20 and 60 percent increases [in demand for food assistance] month after month. Now we have our federal employees who have not received paychecks that may be accessing the system for the first time.”
Beros added that even though partial benefits were received Friday, the reality is that those partial benefits will not meet the needs for the full month.
Jackson said that even as some money is going into the pockets of North Carolinians, he is still showing up at food banks and encouraging others to do so, as his department expects record-high demand this month.
Both he and Beros urge those who can to volunteer at their local food banks and to make the monetary donations they can. Those who are looking for food banks for themselves can visit foodbanknc.org.
“We know how difficult it is to ask for help, but we are here to partner with you, all of our neighbors, no matter what,” Beros said. “It takes hundreds of volunteers every single day and it takes your monetary support to make sure every neighbor does not have to worry about their next meal.”
WRAL’s Carly Haynes contributed to this reporting.
North Carolina
Western NC counites impacted by Hurricane Helene say they are running out of money waiting on FEMA
Some towns in Western North Carolina have spent more on disaster cleanup than they make in an entire year, and now some say they’re running out of money. Local leaders say FEMA still hasn’t delivered on millions in promised aid, forcing small governments to drain their reserves.
Reporter : Liz McLaughlin
Web Editor : Sydney Ross
Posted
North Carolina
Judge temporarily halts NC Medicaid cuts for autism treatment
RALEIGH, N.C. (WTVD) — As state lawmakers have stalled coming up with a budget, some of the most vulnerable North Carolinians have been caught in limbo.
After the General Assembly couldn’t come up with a budget that would include enough funding for Medicaid, ABA, or behavioral therapy for autism was facing a steep 10% cut for Medicaid reimbursement, higher than other programs facing a 3% cut.
After a lawsuit a judge issued an injunction to keep that funding going, but for families caught in the middle it’s still a difficult road ahead.
Marissa Scheetz from Franklinton, says her son Charlie has been through a lot by the age of 5.
“We kind of suspected about two years old that he did have autism. He wasn’t kind of meeting his milestones and that sort of thing,” she says.
Diagnosed with autism and non-verbal, ABA therapy was a gamechanger.
“He’s really come a long way. He’s starting to be able to communicate his emotions, which is really big from where he came from,” she says.
It’s sometimes been a maze of waitlists, and finding the right fit, and working with Medicaid, but now amid cuts, she’s worried he could lose the breakthrough care that finally helped him open up his world.
“I’m scared for my child. I’m scared that, you know, maybe it won’t necessarily lose all of the services, but it is a potential that he could start receiving cuts,” she says.
DHHS cut Medicaid reimbursements in October, including ABA by 10%, prompting 21 families to file suit to stop the cuts. A judge granting a temporary order.
Former U.S. Attorney Michael Easley, Jr. who worked on the case, says it’s about making sure valuable progress isn’t lost.
“Every month that those kids don’t receive that care is a month that these patterns and habits associated with their autism begin to calcify and can result in them not being able to speak or interact in a way that can allow them to be self-sufficient and productive members of society,” Easley says.
But it’s only temporary and other DHHS cuts are still in effect, until lawmakers can sort out a budget.
State Representative Zack Hawkins (D-Durham) has two sons with autism himself, and is calling on lawmakers to come to the table.
“And so, again, this this injunction is, again, a time to me to pause and just see sort of where we are, what we need and allow so that the department and legislators and others to think about and understand just how critical these services are to families across North Carolina who desperately need care,” says Hawkins.
DHHS did respond in a statement, saying:
“The North Carolina Department of Health and Human Services will comply with the temporary restraining order related to provider rate reductions for Research Based Behavioral Health Treatment Services. At this time, we are still awaiting the written order to be issued by the Court.
This order makes the need for the General Assembly to fund Medicaid even more urgent. Any reinstatement or reversal of the provider cuts without additional funding from the General Assembly means the program will run out of funding sooner, putting the entire state Medicaid system at risk.
Without additional funding and implementation of the October 1 rate cuts, North Carolina could run out of NC Medicaid funds as early as April 2026. If the NCGA fully funds NC Medicaid, the Department will reevaluate all cuts and take action to reverse or modify cuts to ensure NC Medicaid can operate within the appropriated budget.
We understand these provider rate cuts are devastating to people, providers and communities that rely on NC Medicaid. NCDHHS did not want to take this extremely difficult step of making these significant reductions for NC Medicaid services, however without additional funding from the General Assembly, it was unavoidable.”
As it stands right now, Medicaid rebates are only guaranteed to be funded through April.
Meantime, the next hearing in this lawsuit it set for Monday.
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