Gov. Stein and Roy Cooper challenge GOP leaders over election board appointment power

Former Gov. Roy Cooper and Gov. Josh Stein sued Republican legislative leaders, N.C. Rep. Tim Moore (D-14) and Sen. Phil Berger (D-26), in December for recent changes to the State Board of Elections and County Boards of Elections made through N.C. Senate Bill 382. 

Cooper vetoed Senate Bill 382, but the legislature overrode the veto. The lawsuit claims that these changes are partisan efforts that violate the separation of powers outlined by the North Carolina Constitution and create distrust in election processes.

The lawsuit mentions six sections of SB 382, which transfer the power of appointment to the SBE from the governor to the state auditor. The provisions also remove the governor’s appointment power of each County Board of Elections’ chair member and grants it to the auditor. 

As SB 382 states, the SBE operates independently, but its budgeting functions are directed and supervised by the newly appointed Republican State Auditor, Dave Boliek.

UNC history professor Benjamin Waterhouse said Cooper and Stein’s complaints are aimed at non-partisan elections. Granting the auditor political appointment power further politicizes the process of elections, he said.

The motion states that the state auditor has never had any role in North Carolina elections, and that North Carolina is now the only state that grants the state auditor election administration power.

The motion argues that Republican legislators are unconstitutionally aiming to restructure the SBE to gain control over local elections, and that this is the Republican legislators’ sixth attempt to take away the Governor’s control of the SBE in the past eight years.

Prior efforts have been rejected by the courts and, in 2018, directly by North Carolina voters.  

In 2018, the N.C. General Assembly proposed a constitutional amendment that would create a new SBE under a new board structure that Cooper denied. The proposed SBE would consist of eight members appointed by the governor, four of which would be recommended by the N.C. Senate. The other four would be recommended by the N.C. House of Representatives. 

North Carolina voters ultimately rejected the amendment in a vote of 2,199,787 (62 percent) against and 1,371,446 (38 percent) for the new structure.  

Orange County Commissioner and legal historian Sally Greene said this is not the first time a conservative majority has attempted to gain complete partisan control over local elections. 

Greene said the SBE was established in 1899 by the same legislators that wrote the Suffrage Amendment in 1901, an amendment that disenfranchised Black voters. Those legislators swept into office in November 1989 and used poll taxes, literacy tests and the grandfather clause to deny Black men the right to vote. 

“So the SBE’s job was to control local elections and to make sure that these new laws have the intended effect of ensuring one-party white rule,” Greene said. 

Waterhouse said the Republican Party has taken control of the state legislature since 2010, but since 2016, North Carolina has had, and will continue to have, a Democratic governor.

This pattern is a result of the governor being elected on a statewide basis and the legislature being elected on a district basis, where the districts have been increasingly gerrymandered in favor of Republicans, Waterhouse said. 

Waterhouse said the gerrymandered districts cause the Democratic Party to maintain less power and control in the legislature and do not allow Democratic governors to exert their legislative authority.

Waterhouse also said that when decisions about elections are made by someone who is likely to be excessively partisan, such as the Republican state auditor in this case, the imbalance of power is exacerbated. 

“For the last 15 years, we have been in a place where a party has had a numerical majority in the legislature but not necessarily a popular majority among the electorate and no control over the executive branch for much of that time, and the result has been a fairly consistent battle for authority and power,” Waterhouse said. 

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