State elections board legal dispute could extend through late March

The legal battle over appointments and oversight of North Carolina’s State Board of Elections would extend at least through late March, under a plan both sides in the dispute filed Tuesday in Wake County Superior Court.

Democratic Gov. Josh Stein is suing Republican legislative leaders over their plan to move the state elections board under State Auditor Dave Boliek, a fellow Republican. The case once called Cooper v. Berger is now known as Stein v. Hall.

A new document filed by both sides in the dispute asks a three-judge Superior Court panel to vacate its March 2024 decision blocking lawmakers’ previous plan to reconfigure the elections board. Stein then would be allowed to proceed with a supplemental complaint against election changes incorporated in Senate Bill 382.

Top lawmakers would have two weeks to respond to Stein’s arguments. Both sides could file written briefs by Feb. 17 seeking summary judgment. That’s the term for resolving a legal dispute without a trial. All parties would have another month to reply to the first round of briefs. Oral arguments would follow “on or after” March 24.

In a separate court filing Tuesday, lawyers signaled the lawsuit’s name change.

Then-Gov. Roy Cooper filed the original suit in October 2023 against Senate Leader Phil Berger, R-Rockingham; House Speaker Tim Moore, R-Cleveland; and the state.

Stein, a fellow Democrat, succeeded Cooper as governor on Jan. 1. Meanwhile, Rep. Destin Hall, R-Caldwell, replaced Moore as House speaker. Berger remains the top officer in the state Senate.

Yet the latest court filings now list Hall as lead defendant, followed by Berger. Stein is dropping “the state” as an official defendant.

Cooper and Stein filed the Christmas week motion challenging Republican legislative leaders’ latest plan for shifting control of appointments to the State Board of Elections. Those changes were part of SB 382, approved on Dec. 11 over Cooper’s veto.

A separate lawsuit filed on Dec. 12 challenges a separate provision of SB 382 that would shift control over the appointment of the State Highway Patrol commander.

In the original Cooper v. Berger elections board battle, the governor secured an injunction in March 2024 blocking legislative leaders from changing the composition of state and local elections boards, along with shifting appointment power over board members from the governor to the General Assembly.

Top lawmakers took that ruling to the North Carolina Court of Appeals but dropped the appeal in December. Lawmakers argued that the appeal became moot after SB 382 changed the targeted law.

Rather than replace the existing five-member state eiections board with an eight-member group and shift board appointments to the legislature, SB 382 moved oversight of the existing elections board and its appointments to the new state auditor.

“We have had the same structure for our state board of elections for nearly a century, and it has served North Carolina well, with fair and secure elections across our state through every cycle,” Cooper said in a news release announcing the Dec. 23 legal action. “These blatantly partisan efforts to give control over elections boards to a newly elected Republican will create distrust in our elections process and serve no legitimate purpose.”

“In recent years, these legislative leaders have repeatedly tried and failed to seize control of the State Board of Elections for their own partisan gain,” Stein added in the same news release. “This latest move insults the voters who rejected their power grab, violates our constitution, and must not stand.”

The proposed supplemental complaint offered more details.

“In December 2024, while Legislative Defendants’ appeal of their trial court loss in this case was pending, Legislative Defendants tried, for the sixth time in eight years, to wrest executive authority over the State Board of Elections away from the Governor,” Cooper and Stein’s lawyers wrote.

“This time, they are trying to change a structure of gubernatorial authority that has existed for nearly 100 years by transferring the power to appoint every member of the State Board to the newly elected State Auditor of North Carolina, a Republican. They have done so not because the State Auditor has any expertise or knowledge of election law or election administration,” the court filing continued.

“Indeed, the State Auditor has never had any role in North Carolina elections; it appears that North Carolina is the only state that commits elections administration to the State Auditor,” Cooper and Stein’s complaint argued. “The State Auditor’s only qualification for this newly assigned role is obvious — he’s a Republican with demonstrated fealty to Legislative Defendants.”

“This blatantly partisan restructuring of the State Board is — once again — unconstitutional. It will undermine confidence in elections, and it contravenes the democratic principles on which our State government rests. It cannot stand,” the governor and governor-elect added.

The state Court of Appeals was slated to hear arguments in the Cooper v. Berger elections board case before lawmakers filed a motion to drop their appeal. A unanimous three-judge Superior Court panel ruled in Cooper’s favor in March 2024. All five living former North Carolina governors filed a brief in October supporting Cooper.

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