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.
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