Shortly before North Carolina Democratic Gov. Roy Cooper entered office, the Republican-dominated General Assembly passed a series of bills stripping power from the governor and shifting it to the Legislature. Perhaps the most egregious of these measures deprived the governor of his traditional authority over election boards, a power Cooper planned to use to reverse Republican-instituted voter suppression methods. But on Monday, the North Carolina Supreme Court blocked the changes from taking effect while lower courts consider their legality, ensuring that—at least for now—Cooper will maintain control over election processes.
In North Carolina, state and county election boards oversee much of the voting process, and therefore have the ability to either protect or diminish the franchise. The State Board of Elections is made up of five members, all chosen from lists provided by both parties’ chairmen, with a three-person majority coming from the governor’s party. Each county board is made up of three members, meanwhile, all chosen by the state board with a two-person majority coming from the governor’s party. These boards create and enforce rules regarding voter registration, voting eligibility, early voting, absentee voting, and Election Day procedures. Under Republican control, they reduced early voting, creating catastrophically long lines in the run-up to Election Day. They also illegally purged thousands of voters, mostly black Democrats, from the rolls.
Under the old rules, when Cooper took office he would’ve been able to appoint a majority of Democrats to these boards, which could’ve then rolled back these voter purges. But he lost this power under the bill Republicans passed in December as one of the final signings of then-lame duck Governor Pat McCrory. That measure combined the SBOE with the State Ethics Commission, creating a “New State Board” with eight members. The governor and legislature would each select four members, and the board would require a supermajority of six votes to take any action. A Republican would chair the board in election years, and a Democrat would chair it in off-years. Each county board would be comprised of four members, two Democrats and two Republicans, and would require three votes to act. The result of this rearrangement would be near-constant deadlock, prohibiting Democrats from expanding voting rights across the state or rolling back previous GOP restrictions.
There is, however, a serious legal flaw in the bill. North Carolina’s constitution creates strict separation of powers, requiring that “the legislative, executive, and supreme judicial powers … shall be forever separate and distinct from each other.” It vests “the executive power” in the governor and states that he or she must “take care that the laws be faithfully executed.” Fortunately for Cooper, the State Board of Elections is an executive agency, and county election boards are arms of that agency. That means Cooper has a constitutional requirement to “take care” that the boards fully implement election laws.
Yet as Cooper pointed out in his lawsuit to halt the attempted restructuring, Republicans have deprived him of that ability. “By creating an evenly divided board structure and then imposing a super-majority voting requirement for all actions,” the suit states, “the legislative appointees can effectively hamstring the myriad actions required for the proper administration and execution of elections and elections laws.” Similarly, the evenly divided county boards would be “consistently deadlocked and unable to act,” and thus “unable to carry out their [statutory] duties.”
“In short,” the suit concludes, the Republican restructuring “ensures that the New State Board and county boards will be unable to execute the State’s election law, and it strips from the Governor any ability to change that circumstance. Accordingly, it prevents him from fulfilling his constitutional duty to see that the laws are ‘faithfully executed.’ ”
The North Carolina Supreme Court appeared to agree with this theory in halting GOP changes from taking effect. And although Monday’s decision was only preliminary, it seems quite likely that the court—which vigorously safeguards separation of powers—will ultimately agree with Cooper on the merits. Here, as in its effort to block Cooper’s cabinet appointments, the legislature simply overstepped its constitutional bounds. And for the time being, North Carolina’s courts remain independent enough to halt the GOP’s unlawful power grab.
