Court Blocks Most of North Carolina GOP's Legislative Coup, Including Election-Board Power Grab

By Mark Joseph Stern, Slate

19 March 17

n Friday, a North Carolina state court ruled that most of the Republican-dominated legislature’s December power grab—which stripped authority from the incoming Democratic governor—violated the state constitution. The three-judge panel found that the legislature’s attempt to deny Gov. Roy Cooper control over the state election board violated the constitutional separation of powers, as did efforts to stack his administration with holdovers appointed by former Republican Gov. Pat McCrory. Presuming Republicans appeal, they face long odds at the liberal-leaning state Supreme Court, which previously blocked the election-board takeover.

The court’s decision was fairly predictable given the North Carolina Constitution’s stringent separation-of-powers requirements. Article I of the state constitution declares that legislative and executive power “shall be forever separate and distinct from each other,” while Article III vests all of “the executive power … in the Governor” and commands that he or she must “take care that the laws be faithfully executed.”

In reshaping the state election board, Republicans ran afoul of these decrees. As the court noted, the state board—which creates and enforces rules regarding voting and appoints members to the state’s 100 county election boards—is “housed in the executive branch.” The board’s composition reflects that fact. Traditionally, the state board consisted of five members—all appointed by the governor—with three from the governor’s party and two from the minority party. In turn, each county election board consisted of three members, with two from the governor’s party and one from the minority party. The structure of the board, in other words, ensured that the governor had a say in the state’s voting procedures. (And under GOP control, Republicans slashed early voting and purged thousands of minority voters from the rolls.)

In December, after McCrory conceded defeat, Republicans attempted to overhaul the boards to prevent Cooper from taking control over them. They passed a law merging the state election board with the State Ethics Commission, creating a “New State Board” with eight members. Under their law, the governor and legislature would each select four members, and the board would require a supermajority of six votes to take any action. A Republican would chair the board in election years, and a Democrat would chair it in off-years. Each county board would be comprised of four members, two Democrats and two Republicans, and would require three votes to act.

Republicans, in other words, ensured that the state and county boards would be perpetually gridlocked. And this, the court explained on Friday, violates the Separation of Powers Clause. Because the board is “primarily executive in nature,” the court held unanimously, the governor “must have enough control over [the appointees] to perform his constitutional duty” to “faithfully executive the laws.” By creating constant deadlock, Republicans ensured that the governor “will have inadequate control” over the board, blocking him “from ensuring faithful execution of the laws.” Thus, the court struck down the law creating a new board, allowing Cooper to appoint Democrats who will reverse Republican-instituted voter suppression.

By a 2-1 vote, the court also blocked a provision of the GOP legislative coup that would’ve filled Cooper’s administration with McCrory-appointed holdovers. This amendment gave McCrory authority to convert temporary political jobs into permanent positions, preventing Cooper from choosing personnel for his own administration. Sure enough, McCrory spent his last two weeks in office converting nearly a thousand political positions into permanent ones. So when Cooper entered office, the executive agencies typically controlled by the governor were filled with hostile Republicans who could not easily be replaced. The court once again found that this measure violated separation of powers by curbing Cooper’s ability to take care “that the laws are faithfully executed.”

Finally, by another 2-1 vote, the court upheld a new law requiring the governor to submit his Cabinet appointments to a state Senate vote. Before Cooper took office, governors appointed Cabinet secretaries without legislative interference, but Republicans abolished that practice in December, granting themselves the opportunity to provide “advice and consent.” The court had previously issued a temporary injunction halting this law on the theory that, because Cabinet secretaries oversee executive agencies, the legislature’s attempt to exert control over the secretary selection process infringed on the governor’s “executive power.”

But on Friday, the court concluded that the state Senate is constitutionally empowered to provide its “advice and consent” in Cabinet appointments. It seemed encouraged by the fact that the Senate has already approved three of Cooper’s appointments and set hearings for others. Cooper, the majority noted, “has made no evidentiary showing that the Advice and Consent provision will result in a violation” of separation of powers. Put differently, the new law might pose a constitutional threat if the legislature used it to blockade Cooper’s appointments—but right now, it appears to be functioning benignly.

Cooper’s office has suggested he will appeal the decision regarding Cabinet appointments. A spokeswoman for Senate leader Phil Berger, the Republican who helped to mastermind the legislative coup, said the senator is “reviewing the judges’ ruling to determine whether any appeals would be made.” Both parties must know that this litigation is destined for the state Supreme Court, where progressives hold a 4-3 majority. This matter isn’t settled yet. But it is increasingly obvious that Republicans’ power grab simply cannot survive judicial scrutiny.