Farley said recent court ruling threatens Council of State

North Carolina Labor Commissioner Luke Farley said he would file an amicus brief over the ruling a three-judge panel made last month that initially blocked the North Carolina General Assembly’s plan to shift oversight of the North Carolina State Board of Elections (NCSBE) to state Auditor Dave Boliek, calling it an “existential threat” to the future of the Council of State.

Farley made the statement at Tuesday’s Council of State meeting. He also made a similar statement when the decision was handed down.

The Superior Court panel split, 2-1, in supporting Gov. Josh Stein’s lawsuit against the planned election administration changes.

A week later, the North Carolina Court of Appeals blocked that ruling favoring Stein, a Democrat, in his legal battle with state legislative leaders and Boliek, a Republican, over elections board appointments.

That paved the way for Boliek to announce his appointments to the NCSBE on May 1. They will be sworn in on Wednesday morning at a State Election Board meeting, along with the executive director’s appointment.

Farley, who has practiced law for 14 years, told those attending the meeting on Tuesday that he felt compelled to talk about the initial Superior Court ruling because it had plunged them into a “constitutional crisis.”

He said the ruling goes beyond who appoints those on the State Board of Elections and raises the question of whether there will be a meaningful Council of State, or if the nine members, excluding the governor, will just be a group of figureheads.

“Article 3 Section 5.4 of our state constitution says the governor shall take care that the laws be faithfully executed, and that is true enough,” Farley said. “The problem is that the majority interpreted that provision to mean only the governor can execute laws, and that interpretation doesn’t square with the rest of the constitution. Two provisions in particular under Article 3 Section 7.2, say the General Assembly is empowered to establish the duties of the nine other members of the Council of State. And under Article 3 Section 5.10, the General Assembly has the authority to reorganize the entire executive branch as it sees fit. Proper constitutional interpretation should give effect to each and every clause and provision of the document and the only way to read all of those provisions in harmony is for the General Assembly to be able to assign any duty to any member of the Council of State as long as it’s not already specifically assigned to the governor in the constitution.”

He gave the example that the General Assembly can make the auditor the head of the Board of Elections but not the commander-in-chief of the National Guard, because that is specifically reserved to the governor.

“Now, if you accept the reasoning of the majority of the three-judge panel, the General Assembly cannot assign any executive functions to any member of the Council of State besides the governor without violating the constitution,” Farley stated. “Frankly, that’s an absurd conclusion. Why would the people of this state have created nine independently elected executive offices only so that they could then not be assigned any duties to perform? That just does not make sense.”

He went on to say that everyone at the table was independently elected and chosen by the people to lead an executive agency. Farley gave the vote totals for himself, Secretary of State Elaine Marshall, Commissioner of Agriculture Steve Troxler, and Boliek and said was glad the people of North Carolina had an opportunity to choose them for their respective offices, regardless of which party they belonged to.

“I’m speaking about this today because I’m intensely concerned about the will of the people being upheld,” Farley told the members. “If the decision of the three-judge panel were allowed to stand, then what does it mean for every duty or responsibility that’s already been entrusted to each of us and our departments? We each independently run our own respective state agency, and represent the people who elected us in doing so. And then, why are we even called here today to vote if we don’t exercise independent executive authority? We are not sitting around this table as a panel of advisors, but as equals with each one having a vote.”

He said he was filing the amicus brief on the case’s merits, specifically focusing on the role of the Council of State and their status as independent officers of the executive branch, which is a perspective he thinks the court needs to hear.

Excluding Stein, Farley invited the remaining eight members to join the amicus brief to “protect the Council of State as those who wrote the state’s constitution intended.”

The governor disagreed with Farley’s assessment.

“The oversight of elections has been with the governor since its inception,” Stein told reporters in a briefing after the meeting. “There’s not a state in this country where the auditor is the one responsible for every single election. This was simply a partisan move by the General Assembly to take power from the democratically elected governor. By the way, he said how many votes everyone earned in the last election. I think I got the most, and people knew who I was, and they elected me to do the job of governor. And that’s why I disagree, and I have appealed to the [state] Supreme Court about the Court of Appeals’ wrongheaded decision.”

Stein said there was no urgency for the Court of Appeals to eliminate the stay, as the only thing being considered was the Supreme Court Justice election between Allison Riggs and Jefferson Griffin.

“So, it made me wonder what this panel was doing in order to favor their colleague Jefferson Griffin,” Stein said. “Of course, my sense of alarm has been ameliorated and in large measure by what the US District Court Judge did yesterday. I want to congratulate Justice Riggs on winning this race for I think the third or fourth time, and look forward to her continued service on the Supreme Court.”

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