By GARY D. ROBERTSON and MAKIYA SEMINERA Associated Press
RALEIGH, N.C. (AP) — North Carolina trial judges threw out on Wednesday another Republican attempt to strip the governor of his authority to appoint State Board of Elections members, declaring that a law shifting the task to the state auditor is unconstitutional.
One registered Republican judge and one Democratic judge on the three-member panel sided with Democratic Gov. Josh Stein, who with his predecessor Roy Cooper sued over the law finalized by the GOP-dominated General Assembly in December. The third judge, a Republican, dissented.
The governor picks the five board members, three of whom are traditionally members of the governor’s party. Appointments are made from candidates provided by the two major political parties.
The latest law would have given the responsibility to new GOP state Auditor Dave Boliek starting May 1, with the expectation that Republicans would assume a majority on the board.
Superior Court Judges Edwin Wilson and Lori Hamilton said the law would “interfere with the Governor’s constitutional duties.” Other elected executive officials assist the governor in executing state law, but the governor “bears the ultimate duty of faithful execution,” they wrote.
Their decision also cited rulings on previous unsuccessful attempts by the General Assembly to strip powers from the governor. Since late 2016, the Republican-dominated legislature has sought to erode or eliminate a governor’s authority to appoint the board that administers elections in the ninth-largest state.
Four previous laws targeting Cooper were blocked by courts — including a 2023 law declared unconstitutional by the same three-judge panel that ruled Wednesday. Voters in 2018 rejected a constitutional amendment that would have forced the governor to pick members recommended by legislative leaders.
Republicans have complained that a governor has too much control over elections, resulting in one-party decision-making and a lack of voter confidence. But Democrats say the laws are a GOP power grab designed to give Republicans an unfair advantage in elections in the battleground state. The board’s importance has been apparent in the still-unresolved election for a state Supreme Court seat.
Dissenting Superior Court Judge Andrew Womble argued that the General Assembly does have the constitutional authority to assign new powers to the state auditor. When it comes to allocating certain powers in the executive branch, the legislature is the “final authority,” he wrote.
Stein’s lawyer argued in court last week that the auditor’s historic role in state government has nothing to do with elections — it’s best known for issuing reports uncovering waste and fraud in state government. Upholding the law, he said, would have given the legislature the go-ahead to move other gubernatorial powers not specifically mentioned in the constitution to other statewide elected officials who would be inclined to carry out laws as GOP lawmakers wanted.
“The North Carolina Constitution puts the Governor in charge of executing the law. That’s what the voters elected me to do, so that’s what I’ll do,” Stein said in a post to X after the ruling.
Attorneys for Senate leader Phil Berger and House Speaker Destin Hall contend the constitution disperses executive-branch power in North Carolina government to many statewide elected leaders including the auditor, who can be tasked with carrying out elections and other laws. The board of elections isn’t mentioned in the constitution, which says the auditor’s duties “shall be prescribed by law.”
Boliek, who joined with GOP legislative leaders in the case, said late Wednesday that he would appeal the ruling. Republicans hold the majority of seats on both the state Court of Appeals and Supreme Court.
“We are taking immediate steps to rectify this constitutionally corrosive and misguided ruling,” Berger said in a statement. “The Board of Elections functioned in a highly partisan manner during the Cooper administration, with handpicked partisan Democrats running elections and rewriting rules. There’s no indication it will change under the Stein administration.”
Wednesday’s ruling also strikes down changes to how the 100 county elections boards are chosen, which also with Boliek’s involvement, would likely have Republican majorities, too. The county board changes would have started in June.
Stein is also suing lawmakers over additional provisions in the wide-ranging December law that weaken other powers of the governor and other Democratic officials. Cooper vetoed the bill, but Republicans completed an override.