Voters in Charlotte check in with elections officials on Election Day in the primary elections on March 5. (Photo by Grant Baldwin/Getty Images)
The law, passed last year by the Republican-controlled legislature, would have stripped Gov. Roy Cooper of appointment power to the state’s elections boards.
An elections law passed by the Republican-controlled General Assembly last year would likely gridlock the state’s elections boards, potentially limit early voting times, and most definitely strip Gov. Roy Cooper, a Democrat, of appointment power.
It is also unconstitutional, a state court panel ruled on Tuesday.
The panel, consisting of three Superior Court judges – two Republican and a Democrat – struck down the law, calling it “the most stark and blatant removal of appointment power” in recent memory.
Republicans are likely to appeal the ruling, which was not much of a surprise. The judges temporarily blocked the law in December ahead of the trial, ruling that the law was likely unconstitutional.
What would the law have done?
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.
Senate Bill 749 would have stripped all current board members of their positions and increased 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.
What did the judges say?
The judges did not comment on any potential harmful consequences of the law, the gridlock or constrained voter access, they instead focused only on the question of what does and does not count as an executive function.
The state constitution, the panel reminded everyone, gives the governor control “over commissions or boards that ‘are primarily administrative or executive in character to perform his [or her] constitutional duty,’”
The state and county boards of election, the panel ruled, were clearly executive in character.
And the metrics of the control the constitution affords to the governor on these boards, the judges wrote, “depends on the ability to appoint members, supervise their activities, and remove them from office.”
The court ruled that because the General Assembly took appointment power from the governor and gave it to themselves, it denied the governor’s constitutional power to remove state and county board members, since in any deadlock, the legislature would get to be the deciding vote.
As a result, the judges wrote, “it is … clear that the [law] infringes upon the Governor’s constitutional duties.”
The law’s larger threats
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.
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 board decisions, like appointments, the legislature and its Republican supermajority would be the tie-breaker, giving them the final say over some stalemates on the state and county boards.
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