Boliek seeks Appeals Court order t0 uphold election oversight shift

State Auditor Dave Boliek is urging the North Carolina Court of Appeals to reverse a lower court ruling that blocked him from assuming oversight of the State Board of Elections starting Thursday. Gov. Josh Stein secured the court order to prevent the shift of power toward Boliek.

Boliek is supporting state legislative leaders’ request for a temporary stay and an order called a writ of supersedeas. The stay and writ would block the 2-1 ruling last week from a panel of Superior Court judges.

Without that court order, state law would have allowed Boliek to make new elections board appointments Thursday and assume administrative oversight of the board. Boliek and legislative leaders are Republicans. Stein is a Democrat.

The Appeals Court set a 10 a.m. Wednesday deadline for Stein to respond to lawmakers’ request.

“The State Auditor’s Office is a constitutional office of the State of North Carolina,” Boliek said in a prepared statement released Tuesday. “My office fulfills its statutory obligations as prescribed by law, including the General Assembly’s decision to transfer election board appointments to the State Auditor.”

“I am prepared to take on the transfer,” Boliek added. “State Board of Elections leadership has been shifting blame away from their own inability to effectively manage. I will appoint election board members who uphold the law and put their focus toward counting legal votes, efficient tabulation, and consistency across counties.”

“There is even more at stake than election board appointments in this case,” the statement continued. “Gov. Josh Stein’s legal team is arguing that his office controls the nine other independently elected statewide officials that sit on the Council of State. I stand firmly against his power grab and will continue battling in the courts.”

Stein sued state legislative leaders over the provisions in Senate Bill 382 last year that shifted elections board appointments and oversight to Boliek. The auditor intervened in the lawsuit as a defendant. He filed his own notice of appeal in the case Friday.

The trial court panel split 2-1 on April 23 in ruling for Stein in the elections board dispute. The Superior Court judges granted summary judgment to the governor. That effectively ended the case without a trial.

Legislative leaders filed a petition Friday with the Appeals Court. They seek to block and eventually reverse the trial judges’ decision.

“The panel’s decision below represents a radical break from the multi-member executive branch that has been a feature of this State’s government since its founding, and replaces it with a regime that requires all power vest in the Governor ‘alone,’” lawmakers’ lawyers wrote.

Lawmakers emphasized the “plural executive set out in the North Carolina Constitution. “Thus, in addition to the Governor, our Constitution provides that the executive branch shall include nine ‘other elective officers’ who serve as members of the Council of State,  and then grants the General Assembly power to assign their duties, stating ‘their respective duties shall be prescribed by law,’” according to the court filing. “This reflects a deliberate decision by our founders, who intended it as a check against the consolidation of power in one man.”

The three-judge panel “helped the Governor effectively write these provisions out the Constitution,” lawmakers’ lawyers argued. The two-judge majority misinterpreted rulings from previous legal battles between the governor and General Assembly, the petition added.

“In short, the panel below ignored the text of the Constitution and relied on precedent the Supreme Court itself has said is inapplicable to block legislation enacted to eliminate the Governor’s stranglehold over the Board of Elections,” lawmakers’ lawyers wrote. “That is an abuse of judicial review.”

Upholding the trial court’s ruling “would permit judges to usurp the People’s power to decide how statutory duties should be allocated within the executive branch,” according to the court filing.

Superior Court Judges Edwin Wilson and Lori Hamilton made up the majority that ruled for Stein. Judge Andrew Womble dissented. Wilson is a Democrat. Hamilton and Womble are Republicans.

Stein’s lawsuit challenged provisions in SB 382, approved last December over then-Gov. Roy Cooper’s veto.

“Senate Bill 382 interferes with the Governor’s constitutional duties,” Wilson and Hamilton agreed. “All appointment powers for the State Board have been removed from the Governor and given to the State Auditor. And the Governor has no power to fill vacancies or remove members of the State Board, whether for lack of attendance or for cause. Likewise, with respect to the county boards, Senate Bill 382 takes from the Governor and transfers to the Auditor the power to appoint the chair of each board.”

“Thus, Senate Bill 382’s changes violate the Constitution,” the majority added.

“Because the duty to faithfully execute the laws has been exclusively assigned to the Governor, Senate Bill 382 cannot reassign that duty to the Auditor without violating the Constitution,” Wilson and Hamilton wrote.

“With respect to Senate Bill 382, the Constitution prevents the legislature from unreasonably disturbing the vesting of ‘the executive power’ in the Governor or the Governor’s obligation to take care that the laws are faithfully executed,” the court order added. “Moreover, the General Assembly’s power to prescribe duties to the Council of State is constrained by the people’s understanding of the purpose of those offices when they were created.”

The majority cited the governor’s “supreme executive power.” “Council of State members aid the Governor in executing the laws, but the Governor alone wields the State’s executive authority and bears the ultimate duty of faithful execution.”

“[B]eyond reasonable doubt, Senate Bill 382 contravenes the plain text of the Constitution, constitutional history and context, and binding Supreme Court precedent by assigning to the State Auditor the sole power to supervise the administration of our state’s election laws. Senate Bill 382’s changes to those boards are thus unconstitutional and must be permanently enjoined,” the majority concluded.

Womble would have upheld the election changes spelled out in SB 382.

“The General Assembly in Senate Bill 382 reassigns the duties of the auditor, while keeping the appointment power within the Executive Branch, which is still subject to the supervision and direction of the Governor,” he wrote. “The plain text of the constitution establishes the Auditor as a member of the executive branch and authorizes the General Assembly to assign his duties.” “Thus, the decision to assign the duty of appointment of members to the Board of Elections to the Auditor is one the General Assembly was expressly authorized to make,” the dissent concluded. “As a result, the Governor cannot show that Senate Bill 382 neither [sic] impedes his ability to take care that the laws will be faithfully executed nor violates the separation of powers clause.”

The post Boliek seeks Appeals Court order t0 uphold election oversight shift first appeared on Carolina Journal.