RALEIGH, N.C. (CN) - A 2024 law stripping the North Carolina governor of the long-held role of appointing members to the state board of elections violates the separation of powers, Governor Josh Stein argued before a panel of appeals judges Tuesday.
State Republicans passed the law, originally advertised as disaster relief, in the 2024 lame duck session. It removed the Democratic governor's ability to fill seats on the North Carolina State Board of Elections, instead administratively transferring the board to the Republican state auditor's office. This granted Auditor Dave Boliek the task of appointing members and filling vacancies.
A lower court initially sided with Stein, but a panel on the state Court of Appeals stayed the ruling and allowed Boliek to take over the elections board. Legislative defendants Senate President Pro Tempore Phil Berger and Speaker of the House Destin Hall maintain there is no separation of powers issue with the law.
"Under his [Stein's] understanding, the legislature could set policy at that time, yes. But there will still be a separation of power between that execution. Choosing who executes isn't even still going so far as to control execution," Matthew Tilley, counsel for the legislative defendants, said Tuesday.
Tilley told Court of Appeals Judges Valerie Zachary, John Arrowood, and Judge April Wood that the General Assembly's decision to reassign election administration does not mean that the legislature controls how Boliek will handle that process. The administration of elections is a policy decision, the defendants argue, and the court should decline to intervene, or overturn the lower court's decision.
"It's a policy decision that belongs to the General Assembly to determine which council of state members gets which statutory duty," Tilley added.
The law exceeds the legislature's authority, Stein argues, and the legislature is not allowed to reassign executive responsibilities at will. Eric Fletcher, counsel for Stein, said the change very clearly violates the separation of powers.
"If the members of the council of state are actually fungible and can be assigned any duty, then there is no separation of powers," he said. "The legislature can assign to the members of the council of state any duty that it wants until it achieves the outcome that it wants."
Stein hold that the auditor's assigned responsibilities must be limited to reviewing government operations and the state's financial matters. If the legislature is able to decide who is tasked with administering elections, it can "effectively control" elections administration, Stein added, which the state constitution forbids.
"At the time of the 2024 general election, the governor had been appointing all members of the state board of elections for more than a century. The auditor had never had any role in elections. No voter in the 2024 elections could have reasonably expected that the auditor they elected would become responsible for appointing and supervising our state's elections," Fletcher said.
He added that if the voters decided to replace Boliek in the next election cycle, the legislature could "effectively ignore" the election results and reassign the oversight to a council of state member of their choosing.
"Politics aside, the case raises fundamental questions about the structure of our state government," he said. "Does our constitution permit the General Assembly to assign any executive duty to any member of the council of state, at any time, for any reason, or for no reason at all? Or does our constitution impose limits on this legislative path?"
Stein's assessment that the members of council of state have core duties is completely unmanageable, said Alex Dale, counsel for Boliek.
"Are we to litigate every duty assigned to a member of the council of state?" Dale asked. "Of course not. And what this really shows is a non-judiciable question. It's a policy decision."
Boliek has asked the court to factor in a recent ruling, in which Stein was unable to regain the ability to select new judges to fill vacancies in the state's Court of Appeals and Supreme Court.
In that case, Stein had sued over changes to his appointment ability on the North Carolina Utilities Commission and Building Code Council. A Court of Appeals panel found that the power to confirm statutory officers, like those upon the utilities commission, is not vested in either the executive or legislative branch, and that the legislature has the right to reorganize the functions, powers and duties of state departments.
Stein and the former Governor Roy Cooper first filed suit in 2024, and a panel of Raleigh judges quickly agreed that the provision was facially unconstitutional, before Berger and Hall promptly asked the state Court of Appeals to step in.
The law does not interfere with the governor's constitutional powers, Hall and Berger argued in their brief. While the auditor may not have historically been tasked with elections administration, the state constitution does not require that the governor appoint election officials either.
"Just because the 1901 General Assembly gave the governor authority to appoint the board of elections' members does not mean that a later General Assembly cannot assign that authority to someone else," the defendants wrote.
After a separate panel of North Carolina Court of Appeals judges stayed the lower court's ruling and allowing the auditor to gain control over appointments until the appeal is resolved or the court issues another decision, Boliek promptly flipped the majority on the state board of elections from Democratic to Republican and replaced the board's executive director with the former general counsel for the speaker of the house.
In addition to the state board of elections, Boliek also gained the ability to appoint members to county election boards, and choose the board chair. Prior to the change, the governor had appointed members to the state board since 1901.
The state GOP has tried several times since 2016 to secure control over the state board of elections, which operates voting sites, maintains voter registration lists and handles election administration.
Source: Courthouse News Service
