Auditor Boliek challenges Stein’s claim to ‘own’ NC elections board

State Auditor Dave Boliek is challenging Gov. Josh Stein’s arguments in a lawsuit over future oversight of North Carolina’s elections. Stein’s suit attacks a state law that would shift state elections board administration and appointments to Boliek on July 1.

“Why do Governors think they own the State Board of Elections?” Boliek’s lawyers wrote in a court filing Wednesday. “This belief runs afoul of the North Carolina Constitution, which provides for an exclusive constitutional, extrajudicial mechanism to resolve disputes over the organization of agencies.”

“The express language of Article III, Section 5(10) of the Constitution makes this a nonjusticiable political question,” Boliek’s lawyers added. “Further, the General Assembly possesses plenary power to create a completely independent Board, subject to no executive authority.”

“Our Constitution reserves the power to the People, acting through the General Assembly, to decide a matter when the Constitution does not expressly prohibit it,” the court filing continued. “Accordingly, the Board’s organization, duties, and functions involve policy questions that belong to the General Assembly and are nonjusticiable by the judicial branch.”

“The Constitution does not countenance a Governor’s personal preferences. The Constitution does not address the Board in any way. This Court should decline the Governor’s invitation to wade into these politically charged, policy-infested waters,” Boliek’s lawyers wrote.

If judges consider the merits of Stein’s arguments, “no precedent allows the Court to grant the Governor’s request to interfere in the General Assembly’s overt authority to shift the Board from one constitutionally-created, popularly-elected Council of State officer to another, all within the executive branch,” Boliek’s lawyers argued.

“The Constitution says nothing about the Board at all, much less if it has to reside where it currently does,” the court filing continued. “It certainly does not give the Governor any connection to or authority over the Board.”

“Indeed, if the Court examines the General Assembly’s policy choice, the Auditor is less political than the partisan Governor for the limited executive controls contemplated in the new law,” Boliek’s lawyers wrote. “Regardless, the General Assembly acted well within its constitutional authority, so the Court should reject the Governor’s wishful pleadings.”

“The Governor is not the Auditor’s boss. He has no authority to usurp legal duties the General Assembly assigns the Auditor,” the court filing added. “As an independent, constitutionally-created, popularly-elected executive branch officer, the Auditor just like the Governor has the right to execute laws and legal duties assigned to him by statute by the General Assembly by way of the Constitution.”

Boliek’s response to Stein’s motion for summary judgment in the case arrived a week after the auditor intervened in the case, called Stein v. Hall or Stein v. Berger.

Stein is challenging the shift in elections board administration and appointments spelled out in 2024’s Senate Bill 382. Stein is the plaintiff in a lawsuit targeting state Senate Leader Phil Berger, R-Rockingham, and House Speaker Destin Hall, R-Caldwell. Stein is a Democrat. Berger, Hall, and Boliek are Republicans.

Stein and top lawmakers filed competing motions for summary judgment in the case in February.

The governor now has appointment power over the five members of the state elections board, based on recommendations from leaders of the state Democratic and Republican parties. He can appoint no more than three members from one party, effectively giving the governor’s party a 3-2 majority.

Under SB 382, passed last December over then-Gov. Roy Cooper’s veto, appointments to the elections board would shift to Boliek. The auditor also would appoint a chairman for all 100 county election boards. The auditor’s office would assume administrative control over the elections board. Changes are scheduled to take effect July 1.

“Among its many provisions, Senate Bill 382 contained the General Assembly’s sixth attempt in nine years to divest the Governor of authority to supervise the administration of North Carolina election law,” Stein’s lawyers wrote on Feb. 25. “For the first time in the State’s history, and in an approach unique among all fifty States, the General Assembly assigned complete authority to appoint, supervise, and remove members of the State Board of Elections and the chairs of all 100 county boards of election to the State Auditor, an official whose authority is dependent on the General Assembly and who has no constitutionally assigned duty to faithfully execute the laws.”

A three-judge Superior Court panel ruled in 2023 against the General Assembly’s previous attempt to restructure the elections board and shift power over board appointments. Cooper filed suit to block the change.

“This Court — in this very case — already held unconstitutional the General Assembly’s effort to strip the previous Governor of authority over the administration of election laws by assigning to itself the power to appoint, supervise, and remove members of the State Board and county boards. The same result is required here,” Stein’s lawyers wrote.

“If the General Assembly is allowed to transfer authority over the execution of election laws to the State Auditor, the General Assembly can prevent the Governor from exercising the supreme executive powers vested in him by the North Carolina Constitution and fulfilling his constitutional duty to ‘take care that the laws be faithfully executed,’” the brief continued.

Lawyers representing Berger and Hall countered Stein’s arguments in their own motion for summary judgment.

“After years of litigation by the Governor and his predecessor seeking to block reforms to the State Board of Elections, the General Assembly availed itself of an option expressly granted to it under our Constitution and transferred the Board of Elections to the State Auditor and gave the Auditor power to appoint the Board’s members,” legislative lawyers wrote. “Rather than accept those decisions which were approved by supermajorities in both the House and Senate over former Governor Cooper’s veto, the Governor has sued once again, insisting that Senate Bill 382’s changes to the State and county boards of election are unconstitutional because they do not give him enough control to ensure the boards carry out his ‘policy preferences.’”

Top lawmakers argue that state Supreme Court precedents in previous clashes between the governor and legislature do not apply to the Stein v. Berger case.

“Unlike its federal counterpart, North Carolina’s Constitution establishes a plural executive,” legislative lawyers wrote. “The Governor accordingly is not the only member of the executive branch and does not hold a monopoly on executive power. Instead, the Constitution expressly provides that the executive branch shall include nine ‘other elective officers,’ and then grants the General Assembly power to assign their duties, stating that ‘their respective duties shall be prescribed by law.’”

“Thus, just like each version before it, our current Constitution diffuses power across a multi-member executive branch and grants the People’s representatives in the General Assembly power to allocate duties among them,” the court filing continued.

“The Governor’s position would effectively write these provisions out of the Constitution,” lawmakers’ lawyers added.

“Given that ‘a constitution cannot violate itself,’ the General Assembly’s decisions to transfer the Board of Elections to the Department of the Auditor and to assign the Auditor the duty to appoint the board’s members cannot be unconstitutional, since they are decisions that the Constitution expressly authorizes the General Assembly to make elsewhere,” the court filing added.

“The framers of our Constitution made a deliberate decision not to create a unitary executive, but to maintain a plural executive,” legislative lawyers explained. “They did so as a check against the Governor and to prevent accumulation of power in one man. The General Assembly’s choice to transfer the Board of Elections, as well as the power to appoint its members, to the Auditor is a natural outgrowth of that decision. While the Governor may disagree with the outcome of that decision — and may even wish our Constitution gave him the type of consolidated powers the federal constitution gives the President — that is not the system the People of North Carolina chose.”

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