As part of the latest hurricane-recovery relief package, the legislature has embedded several policy changes into the bill that change various agencies, appointments, and powers issued to Council of State positions.
Ignoring for the time being the questionable practice of adding policy changes to a funding bill (especially when the vehicle used is a unamendable conference report), there are notable changes made to the structure of the State Board of Elections that will likely moot the Cooper v. Berger (2023) case pending before the North Carolina Court of Appeals regarding policy changes in Senate Bill 749 (SB 749), the “No Partisan Advantage in Elections” bill.
SB 749 made several major changes to the Board of Elections, some of the most notable being:
- Moving the Board of Elections structurally under the Secretary of State’s office
- Moving the appointments of the State Board of Elections and local boards of elections from the governor to the state legislature
- Ensuring that no one party has an advantage on boards by requiring that both of the state’s largest parties have even representation on both the State Board of Elections and county boards of elections
This law was destined to go before the court due to the conflicts it held with prior court rulings of McCrory v. Berger (2016) and Cooper v. Berger (2018). McCrory outlined the separation of powers issue with the legislature controlling the appointments of boards and commissions that deal in the execution of law and said that this authority must be maintained within the executive branch. Cooper v. Berger (2018) ruled that a bipartisan board of elections was unconstitutional because the appointing authority must maintain a majority of the board to implement the “Governor’s policy preferences.”
While I disagree with the North Carolina Supreme Court’s decision in Cooper v. Berger (2018) because I share the opinion of former Chief Justice Mark Martin that the case distorted the McCrory decision it cited as the basis of its decision, I wrote that the current court should reject the idea that a bipartisan board of elections was unconstitutional but maintain that the appointment authority be maintained in the executive branch.
The legislature conference report does appear to return the authority back to the executive branch. However, it is moving the appointment authority to the State Auditor’s office and repealing the bipartisan Board of Elections appointments. While I believe that moving the appointments to the State Auditor’s office is legal, as the North Carolina State Constitution does not online that the administration of elections is something specific to the governor, the legislature should have retained the bipartisan Board of Elections provision present in SB 749.
While the current proposal does appear to be a response to the ongoing Cooper v. Berger lawsuit, it does not mean that it is good governance to just switch the appointing authority so that the other party gets an advantage on the Board of Elections. The proposal also moves the Board of Elections from being housed under the office of the Secretary of State to being under that of the State Auditor. Republicans are soon to take control of the Auditor’s office since their nominee, Dave Boliek, recently won the seat against Democrat Jessica Holmes.
The changes in the bill invert the good and the bad of SB 749. While it’s good that the separation of powers is being properly adhered to, the composition of the Board of Elections will continue to be problematic. Under an unevenly divided board, we have seen questionable decisions from the board, from the sue and settle plan with Democratic operative Mark Elias under a Democratic majority to questionable recounts under Republicans. The administration of elections should be neutral with no one party having an inherent advantage.
