If judges sign off on Republican legislation that curtails the new governor’s control over state and local elections, future balloting could be wracked with confusion, unethical politicians could go unpunished and campaign finance tricks could continue unabated, Democratic lawyers contend.
A three-judge panel of state trial judges on Thursday starts hearing arguments about whether it’s constitutional for GOP legislators to end the century-old control governors had of overseeing elections now that a rival, new Democratic Gov. Roy Cooper, is in office.
The judges are looking at a law passed in April over Cooper’s veto that takes away his authority to pick the majority of the five-member statewide elections board. That state board selects the members of the three-member local elections boards in all 100 counties.
GOP legislators now want to divide the elections boards equally between Democrats and Republicans, with Cooper picking elections board members from lists of candidates compiled by the two major parties. The new, expanded boards would also take over investigating ethics complaints against politicians and violations of lobbying and campaign finance laws.
But a Republican would head the decision-making state board in presidential election years when most people vote and ballot disputes are hottest. The current Republican executive with day-to-day control couldn’t be replaced for at least two years, perhaps indefinitely if the board devolves into partisan deadlocks as the Federal Elections Commission has done for years, Cooper’s attorneys said.
The law replaced an earlier version lawmakers passed two weeks before Cooper took office in January. The same judicial panel has blocked either law from taking effect.
Cooper’s lawyers argue the law is unconstitutional because it interferes with the governor’s duty to ensure the election and other laws are faithfully carried out. The law does that by impeding the governor’s ability to appoint, fire and supervise a team to get things done.
Democrats on state and county elections boards said in sworn statements the deadlocks could have real consequences for voters.
“Based on my experience in county election administration,” Democratic former Watauga County elections board member Stella Anderson said, the law’s effect would be that “voters would be subjected to improperly apportioned precincts and inconvenient polling places, and some voters would ultimately be kept from voting because of confusion over where to vote or unimaginable wait times at the polls.”
In Lenoir County, Republicans on the elections board decided ahead of last fall’s elections that early voting could only take place in the board’s office in Kinston during business hours, said Democratic member Courtney Patterson. They acted after North Carolina Republican Party Executive Director Dallas Woodhouse urged county elections boards — which had a 2-1 GOP majority in every county — to hold a “party line” and limit early voting to a minimum.
Patterson said that’s what Lenoir County’s elections board did. Patterson said he opposed the decision and a compromise was later reached. But a choice was made, while evenly divided elections boards are likely to face inaction due to partisan deadlock, Patterson said. That would kick a decision up to the state elections board, which likewise could be gripped by a partisan split, he said.
Lawyers for state House Speaker Tim Moore and Senate leader Phil Berger argue such predictions of doom haven’t happened and aren’t relevant.
Cooper has enough supervision of the combined board to execute the laws the General Assembly adopted, lawyers for the legislative leaders said. The Legislature has the constitutional authority to create and modify the duties of state agencies and the potential of deadlock doesn’t necessarily violate the constitutional principle of separation of powers between the governor and Legislature.
Cooper “must execute the laws as passed by the General Assembly. There is no separation of powers violation, and it is now the executive branch’s duty to implement the laws as written,” lawyers for Moore and Berger wrote in a court brief.
Besides, lawyers for the GOP leaders said, courts should presume the Legislature’s actions are constitutional and shouldn’t get involved in what amounts to a political turf war.
Cooper’s “separation of powers argument is merely a smoke screen for his true motivation — party politics,” lawyers said. “It is not for the Governor (or this Court) to attempt to restore the Democratic Party to what it could have been under prior law.”