RALEIGH — We finally have a court ruling in Gov. Roy Cooper’s legal battle with Republican legislators over North Carolina’s elections board, but it looks like the fight’s not over yet.
You might be scratching your head trying to remember the details of this dispute — Cooper has sued the legislature so many times I’ve lost count. So let’s hop in the time machine and head back to December 2016, when this all started.
Legislators held a special session soon after Cooper defeated Republican Gov. Pat McCrory to limit the authority of the governor. Up until then, one of the perks of being governor was that your political party got control of the State Board of Elections. That board sets early voting schedules and settles disputed elections.
After a 2016 election in which the elections board was often in the spotlight, Republicans didn’t want to cede control to the Democrats. They came up with a new “bipartisan” board that would be split evenly between Democrats and Republicans, and it would take over the state’s Ethics Commission. The GOP argued that the change would help take partisan politics out of election administration, but an even split could mean the board would deadlock along party lines and wouldn’t be able to make decisions.
Cooper sued, and after the GOP-dominated N.C. Court of Appeals upheld the new system, the N.C. Supreme Court — with its Democratic majority — ruled along party lines to strike down the law. The court majority said the law violated the state Constitution’s provisions on the governor’s powers.
But Republican justices said in their dissent that the constitutional power is covered “by giving the Governor appointment and removal power over Bipartisan State Board members, and by allowing the Governor to appoint half of those members from his own political party.”
Cooper now gets to appoint a board with a Democratic majority, but he hasn’t done that yet because the details remain unsettled.
While the board has been vacant since June because of the lawsuit, the state’s elections and ethics agencies have merged. Several top staffers from the old Ethics Commission left, and the others moved in with the elections staff. Cooper has indicated the Supreme Court ruling should reverse the merger, but that could prove tricky.
There’s also no good reason to go through that hassle. The elections and ethics agencies serve similar purposes, so having them under the same roof works well and doesn’t diminish the governor’s powers.
It’s up to a lower court to sort out the details in the coming weeks. Meanwhile, Republican legislators have said they might pass legislation to put state law in line with the Supreme Court ruling.
I wouldn’t be surprised if Republicans used that opportunity to change the elections board again — perhaps finding a way to address the ruling while still limiting Cooper from the power his Republican predecessor enjoyed. That would likely mean another lawsuit and uncertainty over elections administration in an important election year.
Cooper asked the Supreme Court to speed up the process for detailed lower-court guidance, but his request was rejected without explanation. The matter will remain unsettled until at least Feb. 15, and the legislature is scheduled to meet before then.
Let’s hope that whatever happens, we get an elections board sworn in soon. We’ve already seen what can happen when you hold elections without a state elections board: One town in North Carolina had a botched election in November and still doesn’t know who’s going to be its mayor.
The vacant elections board has meant that disputes are kicked into Superior Court, and Sharpsburg is waiting on a judge to potentially order a new election. Had there been an elections board, that could have been resolved back in December.
There’s a lot more at stake in the 2018 election, and having an effective board in charge of elections will go a long way to prevent shenanigans that muck up our democracy.
Colin Campbell is editor of the Insider State Government News Service. Follow him at NCInsider.com or @RaleighReporter. Write to him at [email protected]