Judges decide to keep North Carolina election law blocked

RALEIGH, N.C. – A law North Carolina Republicans approved scaling back the new Democratic governor’s control over election boards won’t be enforced until his legal challenge to it is resolved, state judges decided Thursday.

A panel of trial court judges is granting the request by Gov. Roy Cooper to extend a temporary 10-day block on the law, which Cooper argues is unconstitutional because it shifts appointment powers from him to legislative leaders.

Cooper sued GOP legislative leaders just before his New Year’s Day swearing-in, challenging a law the General Assembly approved in a surprise special session barely a week after Republican incumbent Pat McCrory conceded to Cooper in their close race.

Barring any appeals, the incremental victory for Cooper keeps separate the State Board of Elections and the State Ethics Commission and halts what his allies considered an illegal power grab by Republicans. But GOP legislators said the blocked law would promote bipartisanship in carrying out elections.

“We’re pleased with the result,” Cooper spokeswoman Noelle Talley said in an email.

The governor appoints all five members of the State Board of Elections, with the members of the governor’s party holding a 3-2 majority. Cooper would get to make his appointments May 1.

Whoever is in charge of elections this year could set the schedule and rules for special General Assembly elections that were ordered by federal judges after they threw out nearly 30 House and Senate districts as illegal racial gerrymanders. Election board members also decide important early voting times and locations.

The December law would have merged the ethics and elections boards effective Jan. 1. Moving forward, the new panel would have had eight appointments: four by the governor and two each by the House speaker and Senate leader. Although there would be an equal number of Democrats and Republicans, action couldn’t occur unless any six members agreed.

During more than two hours of arguments early Thursday before the three-judge panel, Cooper lawyer Jim Phillips said the six-member majority would effectively prevent the governor from fulfilling his duty to ensure election laws are faithfully executed. The challenged law also would have put the current ethics commission in charge of the merged board until the summer.

The Republican law, Phillips said, would allow legislative leaders to “control the enforcement and the execution of the law” through their appointees. “They get to make law; they don’t get to execute it. That is the governor’s job,” he said.

But the legislative leaders’ lawyers said the state Supreme Court has ruled it’s not unlawful for legislators to make appointments to executive branch panels as long as those appointees don’t have control over the panel.

“The question that your honours must decide is whether in this instance, given all the facts and circumstances, whether the General Assembly went too far,” said Noah Huffstetler, an attorney for Speaker Tim Moore and Senate leader Phil Berger. “And we simply submit that it did not.”

The elections panel is meant to be an independent body to avoid use of the agency for partisan ends, Huffstetler said.

In a statement Thursday night, Berger and Moore said they believe the merged board ultimately will be upheld as constitutional and that Cooper “should explain why he opposes bipartisan oversight of elections and ethics laws.”

Republican lawmakers and Cooper already are butting heads elsewhere.

The legislature passed another law last month requiring Cooper’s Cabinet choices to be confirmed by the state Senate. And Cooper announced Wednesday he would ask the federal government to expand Medicaid to cover hundreds of thousands of uninsured people despite laws that prevent him from seeking it unilaterally.