AP Explains: Why is election board fight still unsettled?
By GARY D. ROBERTSON
Feb. 17, 2018
RALEIGH, N.C. (AP) — Democratic Gov. Roy Cooper won a big legal decision over Republican legislative leaders last month when the North Carolina Supreme Court sided with him in his lawsuit seeking to nullify a new GOP-backed elections and ethics enforcement board structure.
Since then GOP lawmakers decided to pass the third piece of legislation in 15 months altering the board's makeup. Cooper railed against those latest changes but announced he'll let them become law anyway.
The litigation isn't over, and candidate filing this year began last week still without any seated board members.
HOW DID THIS HAPPEN?
In December 2016, two weeks before Cooper was sworn in, the GOP-dominated General Assembly passed legislation combining the separate State Board of Elections and State Ethics Commission into one panel.
Cooper sued because the law removed his power to appoint a majority from his party to the elections board, which he argued eroded his authority to carry out election laws and protect voting rights. Republicans said requiring equal numbers of Democrats and Republicans on the panel and other changes promoted bipartisan action.
A three-judge panel ruled the law violated the state constitution. Republicans passed an updated measure last April to address some objections, but it still called for a panel comprised of four members each from the two major parties. Cooper vetoed it and lawmakers overrode him.
Cooper also sued over the updated board. The trial judges upheld that law, but Cooper appealed, and in a 4-3 decision Supreme Court justices ruled Jan. 26 in Cooper's favor, saying the law went too far.
WHAT DID THE RULING SAY?
Justice Sam Ervin IV's majority opinion said provisions concerning the board membership and appointments "taken in context with the other provisions of that legislation, impermissibly interfere with the governor's ability to faithfully execute the laws" and are unconstitutional.
Ervin highlighted provisions in which Cooper would have to choose half of the board members from a state GOP list and limits on how the board could supervise agency activities and Cooper removing members.
WHY ISN'T THE CASE OVER?
The court majority sent the case last Thursday to the same three-judge panel "for further proceedings" and to issue a final judgment "not inconsistent" with its opinion. That's led to maneuvering by Cooper and the legislature.
Cooper and his attorneys believe the judges should overturn the entire law. They filed a proposed order citing portions of the opinion evaluating the "unified whole" and the "totality of limitations" placed upon the governor. Cooper said the previous laws — with separate boards and Democrats holding a majority of elections board positions — should be restored.
It's unclear what the judges specifically will do next.
WHAT DO REPUBLICANS WANT?
GOP legislators argue the Supreme Court ruling is narrower, and only tweaks to the board's membership and Cooper's powers are required.
The General Assembly decided not to wait for the judges, passing legislation last week that creates a ninth member of the combined board, registered with neither major party. The bill also allows Cooper to remove board members for whatever reason.
WHY IS COOPER LETTING THE BILL BECOME LAW?
Cooper was in a bind because board alterations were attached to other legislation that he wanted, addressing public school class sizes and preschool funding.
By declining to sign the bill or veto it, Cooper may put himself in a better position before the judges or if he challenges the board's latest iteration. The bill also becomes law without his signature March 15, giving him more time to persuade a court to agree with him.
WHY DOES THIS ALL MATTER?
North Carolina state elections and ethics workers ensure candidates can file and elections run smoothly, investigate campaign finance violations and examine potential conflicts of interest for elected officials.
Ethics and elections staff still do their jobs during the ongoing litigation. However, with the board being vacant since June, decisions on statewide election policy and investigation outcomes have been delayed. Election controversies last fall also were settled in court instead.
The final outcome also will complete a round in the continued power struggle between Cooper and the legislature.