North Carolina governor keeps control over election board in judges’ ruling against GOP lawmakers

RALEIGH, N.C. (CN) — North Carolina Governor Roy Cooper will retain the power to appoint state elections board members after a three-judge panel ruled in the governor's favor Tuesday in a dispute with legislative leaders.

The General Assembly sought to strip Cooper of his appointment and oversight authority over the Board of Elections when it passed Senate Bill 749 in October 2023. Cooper had vetoed the bill but the Republican majority in the House and Senate overturned his veto and passed the bill into law.  

After a three-panel judge halted the law from going to effect in an injunction in November, it released a final judgment that means that the board appointments will revert to the former law. Each county board will have five members, four appointed by the state Board of Elections, two Republican and two Democrats, with the final member appointed by the governor. 

Cooper argued in his lawsuit against GOP state Senator Phil Berger and Representative Tim Moore that the law violated the separation of power between the branches and infringed upon his constitutional duty to oversee the Board of Elections. The panel agreed.

“Without explicitly defining 'control,' it is still clear that the session law infringes upon the governor's constitutional duties,” the judges said in their decision. 

The now-defunct law would have given appointment power to legislative leaders and increased the number of board seats from five to eight, a move critics of the bill worried could lead to gridlock. Republicans argued it made the board more bipartisan since seats were to be split evenly between Democrats and Republicans. 

Cooper took a shot at GOP leaders in a statement following the ruling Tuesday.

“The State Board of Elections continues to uphold the highest standards of fairness and Republican leaders should stop their efforts to control the ballot box and sow chaos before the November elections. Bipartisan courts and voters have repeatedly rejected these clearly unconstitutional attempts to seize control of elections,” Cooper said.

A representative for Senator Berger’s office criticized the ruling. 

“For someone who claims to have concerns about election interference, Gov. Cooper is stopping at nothing to keep complete, single-party control of elections administration,” Lauren Horsch said. “One should question why he so vehemently opposes the creation of a bipartisan board of elections. What’s he afraid of?” 

Representatives for Speaker of the House Tim Moore did not respond to a request for comment.

Superior Court Judge Edwin Wilson, Democrat, served on the panel, as did Republican Judges Lori Hamilton and Andrew Womble. They were assigned by State Supreme Court Chief Justice Paul Newby, who selects judges in constitutional cases.

In a separate law passed in October, Republicans targeted Cooper’s appointment ability for seven different state boards, including the Board of Transportation and the Utilities Commission. Five of those challenges were upheld by a panel of judges; Cooper retained appointment power in two.

The state GOP defended its efforts following Tuesday's ruling, encouraging the legislative leaders to appeal to the Supreme Court. 

"Republicans in the legislature are within their rights to enact laws making administration of elections —  the bedrock of our system of government —  operate with more input from each parties’ leaders, not beholden to one man," said Matt Mercer, the communications director for the North Carolina Republican Party.

Republicans attempted to gain control of the Board of Elections in 2018, but lost in court. In November 2018, voters decided to require voter ID, which saw its first election in 2023 after years of legal disputes, but rejected a proposed constitutional amendment to grant lawmakers more power over the election board. 

During the long session, Republicans also passed a new election law that eliminated a three-day grace period for mail-in ballots, which is expected to impact thousands of voters in the general election.  

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