Cooper faces criticism for issuing orders to elections agency amid lawsuit

While a three-judge panel hasn’t yet issued its order governing the future of the state’s elections and ethics agency, Gov. Roy Cooper’s administration has ordered the agency’s staff to “refrain from taking any substantive action” — a move that prompted the agency’s attorney to question whether “the administration believes the agency is dissolved.”

It’s unusual for a governor’s administration to directly instruct staff at the agency overseeing elections, campaign finance law and ethics enforcement. During the lawsuit over the merger of the elections and ethics boards, the two agencies remain merged and without a governing board — so any decisions normally made by a board have been referred to Wake County Superior Court.

The agency’s staff has been issuing guidance to county election officials and others based on existing policy and laws. Public records released Tuesday show correspondence between Cooper’s attorney, William McKinney, and agency attorney Josh Lawson about the current status of the agency — and whether it even exists on the week when 2018 candidate filing begins.

“Until a final judgment is entered by the trial court, the staff of the State Board must halt all activity relating to, or in support of, the merger of the State Board of Elections and the State Ethics Commission,” McKinney wrote to Lawson on Jan. 29, shortly after the Supreme Court ruling. “Moreover, the staff should refrain from taking any substantive action with respect to elections or ethics law policy decisions. The Supreme Court has unambiguously held that the governor must be able to ‘affirmatively implement’ his own ‘policy decisions’ in this area.”

Lawson replied that the agency employees haven’t been making new policies but that “operation of day-to-day functions regarding elections, campaign finance, ethics compliance remain ongoing.”

Lawson sent McKinney examples of guidance that elections board staff has issued without a board — such as deadlines and information to counties about setting early voting schedules, something that county elections boards are doing now for the 2018 primary. McKinney replied that the Cooper administration doesn’t think the agency is “capable of issuing guidance at this time,” so “please identify the Governor’s position if the New State Board decides to send out new guidance.”

Lawson’s reply: “I am deeply concerned the Administration believes the agency is dissolved. We remain — of course — and continue filing candidates and fulfilling administrative duties for which statute does not require a seated Board. … Logistical guidance is both necessary and frequent in the leadup to elections that grow to involve more than 26,000 poll workers, thousands of candidates, hundreds of early voting sites, and Election Day operations in nearly three thousand precincts. Logistical guidance has never been considered ‘policymaking’ or subject to a new day-to-day control that would mark a departure from the historic independence of elections civil staff.”

In a reply last Tuesday afternoon, McKinney did not refute Lawson’s comment about the agency being “dissolved.” Asked to clarify Cooper’s position, spokeswoman Noelle Talley told the Insider that “our position remains that we believe the Supreme Court’s opinion requires the New State Board be declared unconstitutional.” Asked if Lawson’s “agency is dissolved” comment was accurate, Talley said “we believe that will be the effect of the order once the mandate issues.”

A day later, Cooper said during a news conference that “They are not to make any substantial decisions. The court was pretty clear that this law is unconstitutional, and the law will revert back to the old law — the law that has worked pretty well in North Carolina for a number of years.”

House Rules Chairman David Lewis, R-Harnett, has been overseeing legislation that would tweak the merged board in response to the Supreme Court ruling, and his office voiced concerns about Cooper’s action. “While we were just made aware of this situation, it is troubling to see the Governor’s staff seemingly trying to meddle and interfere in the day to day affairs of the civil servants at the Bipartisan Board of Elections and Ethics Enforcement,” Mark Coggins, a policy advisor to Lewis, said in an email Tuesday. “We look forward to learning more about the Governor’s intentions here. This is a great example of why the General Assembly has acted quickly to reinstate a new board that answers the Supreme Court’s concerns.”

Senate leader Phil Berger also criticized the governor’s position and said the administration’s directives to elections agency staffers are unprecedented. “There was something in the Insider this morning that I thought was very telling about this and about what Gov. Cooper is trying to do, and it was the notation that Gov. Cooper’s counsel had directed the state board of ethics and elections not to take any action unless specifically authorized by the executive branch,” Berger said in a news conference Wednesday. “I think the governor’s wishes with reference to the decision by the Supreme Court are overruling his good sense, and I think it’s really unfortunate. We’ve never had a situation where the governor or the governor’s staff specifically directed the elections board to act in a certain way … That’s way outside of what has been the norm in North Carolina.”

The bill that cleared the legislature last week would add a ninth member to the merged elections and ethics board who wouldn’t be a member of either major party. The Cooper administration’s latest filing with the three-judge panel calls for the entire 2017 law to be repealed, a move that would likely restore the law in effect in 2016 that had a separate ethics commission and elections board, with the governor’s political party holding a majority of the elections board seats.