N.C. judges hear vote-board suit

Sides argue if state constitution allows legislative appointees

RALEIGH, N.C. — A battle over how to run elections in closely divided North Carolina returned to court Thursday as state judges pondered whether Republican legislators crossed the line by removing appointment powers from the new Democratic governor just before he entered office.

Gov. Roy Cooper sued GOP legislative leaders just before his New Year’s Day swearing-in, challenging a law the General Assembly approved in a surprise special session barely a week after Republican incumbent Pat McCrory conceded to Cooper in their close race.

Effective the first of the year, the new law merged the state Board of Elections and state Ethics Commission into a new panel. Cooper and his allies called it an illegal power grab that shifts control of elections panel appointees away from the governor and toward the Legislature. GOP legislators said the law promotes bipartisanship in carrying out elections.

A three-judge panel heard more than two hours of arguments from lawyers for Cooper and legislative leaders. Cooper wants the court to extend a temporary 10-day block on enforcing the law until the full lawsuit is ruled upon. The temporary block was ordered last week by another judge.

Whoever is in charge of elections this year will set the schedule and rules for special General Assembly elections that were ordered by federal judges after they threw out nearly 30 House and Senate districts as illegal racial gerrymanders. Election board members also decide important early-voting times and locations.

“We are very mindful that time is of the essence, plainly,” said Superior Court Judge Jesse Caldwell, a panel member. He added, “I believe every member of the panel understands the urgency of this matter.”

Before the December law was enacted, the sitting governor appointed all five members of the state Board of Elections, with the members of his party holding a 3-2 majority. The challenged law creating the merged board envisions eight appointments, with four appointed by the governor and two each by the House speaker and Senate leader. While there would be an equal number of Democrats and Republicans, action couldn’t occur unless any six members agreed.

The Legislature’s job of approving laws is now interfering with the separate duties of the governor to ensure laws are faithfully executed, Cooper attorney Jim Phillips told the panel.

The new law, Phillips said, would allow legislative leaders through their appointees to “control the enforcement and the execution of the law. They get to make law — they don’t get to execute it. That is the governor’s job.”

The legislative leaders’ lawyers said the state Supreme Court has ruled it’s not unlawful for legislators to make appointments to executive branch panels as long as those appointees don’t have control over the panel.

“The question that your honors must decide is whether in this instance given all the facts and circumstances, whether the General Assembly went too far,” Noah Huffstetler, an attorney for Speaker Tim Moore and Senate leader Phil Berger. “And we simply submit that it did not.”

Republican lawmakers and Cooper already are butting heads elsewhere.

The Legislature passed another law last month requiring Cooper’s Cabinet choices to be confirmed by the state Senate. And Cooper announced Wednesday he would ask the federal government to expand Medicaid to cover hundreds of thousands of uninsured people despite laws that prevent him from seeking it unilaterally.

Whoever is in charge of elections this year will set the schedule and rules for special General Assembly elections that were ordered by federal judges after they threw out nearly 30 House and Senate districts as illegal racial gerrymanders.