Lawmakers ask Appeals Court to block elections ruling favoring Stein

North Carolina’s legislative leaders are asking the state’s second-highest court to block a ruling that prevents a planned shift of power over State Board of Elections appointments. Republican lawmakers want State Auditor Dave Boliek to take over elections appointments and oversight.

Gov. Josh Stein, a Democrat, opposes the plan. His lawyers have indicated they will respond to legislators’ request Wednesday. That’s one day before the disputed change was scheduled to take effect.

A three-judge Superior Court panel split 2-1 on April 23 in ruling for Stein in the elections board dispute. The decision threw out a provision in Senate Bill 382 that would have allowed Boliek to begin making elections board appointments Thursday.

The panel granted summary judgment to the governor. That effectively ended the case without a trial.

Legislative leaders filed a petition Friday with the North Carolina Court of Appeals. Lawmakers seek an order called a writ of supersedeas to block the April 23 decision. They also asked for a temporary stay until the Appeals Court decides whether to issue the writ.

“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.

Stein’s lawyers filed a notice Monday morning that they plan to respond to lawmakers’ petition on Wednesday.

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.

“This Panel cannot look past Cooper I, the controlling authority for this specific separation of powers issue,” according to the April 23 order. “Cooper I” is the shorthand name for a 2018 case called Cooper v. Berger. The state Supreme Court rejected a previous attempt from the Republican-led General Assembly to redesign the State Board of Elections.

“Because the State Board and county boards exercise executive functions, the question becomes whether the Governor, under Senate Bill 382, has sufficient control over those entities. Again, Cooper I is controlling. Our Supreme Court has held that ‘Article III, Section 5(4) of the North Carolina Constitution requires “the Governor [to] have enough control over” commissions or boards that “are primarily administrative or executive in character” to perform his [or her] constitutional duty,’” the panel’s majority added.

“The extent of the Governor’s control depends on his ability to appoint members, supervise their activities, and remove them from office,” the majority continued.

“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.

“The Constitution does not permit the Auditor to be solely responsible for execution of the State’s election laws. Constitutional text, history, and precedent confirm as much,” the court’s majority agreed.

“The Constitution makes no mention of the nongubernatorial members of the Council of State — whose duties are separately prescribed by the legislature — in discussing the constitutional duty to take care that the laws be faithfully executed,” the court order continued. “The only way to reassign a duty assigned to an Officer by the Constitution is by a constitutional amendment.”

“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 agreed.

“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 constitution charges the Governor with supervising the executive branch and its functions while, at the same time, granting certain executive powers to other executive officers,” he wrote in dissent. “In addition to prescribing duties to the executive officers, our constitution expressly recognizes the General Assembly’s power to organize and reorganize the executive branch.”

“The constitution likewise gives the Governor specific guidelines by which he may influence the allocation of administrative functions, powers, and duties,” Womble added. “Nonetheless, the text reserves the final authority for the legislative branch. Thus, while the Governor has general supervisory responsibility, each constitutional executive officer is primarily responsible for executing the laws assigned to that official by the General Assembly.”

“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,” Womble 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.”

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