The law, SB 749, would overhaul the state’s elections boards and strip the governor’s power to appoint members.
A bipartisan three-judge panel last week temporarily blocked a law passed by North Carolina Republicans that would restructure the state’s award-winning elections boards, likely ensure election gridlock, and threaten the state’s constitutional separation of powers.
The judges, two Republicans and a Democrat, unanimously ruled that Senate Bill 749 was likely unconstitutional and prevented it from going into effect until the lawsuit surrounding the legislation is resolved.
Gov. Roy Cooper sued the legislature soon after the law was passed, arguing that it unlawfully took his power to appoint state election board officials and gave it to the legislature.
The judges ruled that Cooper “has shown a likelihood of success on the merits of his case.”
The trial could come as early as next month. North Carolina’s 2024 primary elections are on March 5.
The law was set to go into effect on Jan. 1.
What is SB 749?
Republicans passed the law in September and overrode Cooper’s veto the following month. Previously, the state board of elections held five seats. The governor appointed them all, but the board had to have a mix of Democrats and Republicans, with the majority going to the governor’s party.
The state board then appointed four of the five seats of each county board, evenly splitting them among the parties. The governor appointed the final member, the chair of each county board.
SB 749 would strip all current board members of their positions and increase the number of seats on the state board to eight, with half of the members appointed by Republicans in the legislature and the other half by the body’s Democrats. The legislature would also appoint the county boards. Under the new law, the governor would no longer appoint any members.
Cooper’s lawsuit is focused on these provisions that dilute the power of the governor’s office.
“These changes will cause immediate and irreparable injury, loss, or damage to the Governor if allowed to take effect,” the lawsuit states.
But the biggest damage of SB 749 will fall on elections, and voters, themselves.
Likely gridlock and limited early voting
Republicans said the bill, which they named “No Partisan Advantage in Elections,” would ensure cooperation and restore voter trust in elections.
But with an even split on the state and county levels, a 4-4 tie is likely on crucial decisions, leaving officials with no clear way forward.
While the state and county boards make all sorts of important decisions that would be severely disrupted by gridlock, the two biggest consequences could have to do with early voting and the certification of the elections themselves.
Republicans, who have been trying to limit early voting for years, have created a backdoor way to restrict it in SB 749.
Early voting is the most popular voting method in the state. More than 3.6 million people cast their ballots during the early voting period in 2020, and more than 2 million people did so in 2022. That was more than the number of voters who voted on Election Day in either year.
County boards decide the number of early voting sites. Under SB 749, if a given county can’t agree on the number, it would default to one. One site may be fine in smaller counties, but early voting is the most widely used form of voting in North Carolina, and one site would mean chaos in larger counties like Wake and Mecklenburg.
In other specific decisions, the legislature and its Republican supermajority would be the tie-breaker, giving them the final say over any stalemates on the state and county boards.
‘The heart of a thriving democracy’
Democrats praised the injunction last week.
“The people’s faith in fair and free elections is at the very heart of a thriving democracy,” the top Democrats in the state legislature, House Democratic Leader Robert Reives and Senate Democratic Leader Dan Blue said in a joint statement after the ruling.
“We applaud the unanimous decision to block Republicans’ latest assault on our democratic process. The court’s clear rejection of the GOP’s attempted power grab is a win for voters and our state constitution.”
Cooper, of course, agreed.
“Administering fair, secure elections is critical for our democracy and the courts have repeatedly found that partisan legislative attempts to take over the State Board of Elections are unconstitutional,” he wrote on social media.
The NC Supreme Court ruled in 2018 that similar efforts to overhaul the state and county boards of elections were unconstitutional, and later that year, voters resoundingly rejected a constitutional amendment to do the same.
This year, however, the state’s highest court is controlled by Republicans. The case is likely to come again before the court, and this time the result could be much different.
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