By Jacob Comello, Civitas Intern
The govern-by-litigation craze in North Carolina is alive and kicking. In the latest chapter of the Gov. Roy Cooper vs. North Carolina General Assembly epic, on March 5th a three-judge panel from the NC Superior Court partially ruled against a Republican attempt to restructure the Board of Elections.
The Republicans’ original proposal combined the Ethics and Elections boards and expands board membership from five to eight, with four members coming from each major political party in the state. Effectively, the proposal would have created a bipartisan board with equal representation between Republicans and Democrats.
Cooper alleged that the proposed arrangement infringed on the powers of the executive branch and objected to both the board combination and the new membership provisions. The NC Supreme Court weighed in first on the matter and appeared to agree with Cooper, but for clarification the ruling was passed to the aforementioned three-judge panel, which last week invalidated the membership requirements but allowed the boards to be combined.
Between the two decisions, Republicans sponsored House Bill 90, which alters the original eight-member board plan to include a ninth unaffiliated member to break ties. That bill was approved by the General Assembly on February 13th and will likely become law without Cooper’s signature. Cooper, however, is determined to keep the Board in its former fashion and has expressed intentions to sue the legislature again.
Formerly, the Board of Elections consisted of five members, three of whom were usually from the governor’s party. Changing the structure to a four-on-four composition would, as Justice Sam Ervin wrote in the majority opinion for the NC Supreme Court, hamper Cooper’s ability “to ‘take care that the laws be faithfully executed’ because [he] is required to appoint half of the commission members from a list of nominees consisting of individuals who are, in all likelihood, not supportive of…[his] policy preferences while having limited supervisory control over the agency…”
To begin with, the governor is already required to appoint at least two members to the board who are “in all likelihood, not supportive of” his or her “policy preferences.” The only way Justice Ervin’s argument holds water is if the two opposite-party appointments were always meant to be merely token gestures for the governor as opposed to intentional attempts to inject opposing viewpoints into the important task of administering elections. That doesn’t, however, seem like a likely interpretation of the law.
The bigger problem with Justice Ervin’s argument is that the North Carolina General Statutes explicitly sever the Board from “policy preferences” in general, even those of the Executive Branch of which it is technically a part. As per GS § 163-28:
“The State Board of Elections shall be and remain an independent regulatory and quasi-judicial agency and shall not be placed within any principal administrative department. The State Board of Elections shall exercise its statutory powers, duties, functions, authority, and shall have all powers and duties conferred upon the heads of principal departments under G.S. 143B-10” (emphasis added).
The words “independent regulatory and quasi-judicial agency” say it all. The Board of Elections is meant to objectively oversee how elections are administered in the counties and act like a miniature court if any irregularities come to light. Aside from creating rules that are already consistent with relevant legislation covering the administration of elections, the Board doesn’t exercise any policy power. Thus, board members have a job that already implies bipartisanship and should rightly be separated from the “policy preferences” of any governor.
Now, I know what you might be thinking: “Aren’t Republicans just trying to force their own policy preferences on the Board of Elections, just the same as Cooper is trying to do?” Whether that’s true is anyone’s guess, but the Republicans who are tied up in this conundrum are legislators – thus able to make laws that departments like the Board of Elections and Ethics Enforcement must follow.
The governor’s supervisory controls over the Board halt at appointment. Notwithstanding that, the changes Republicans are advocating are structural changes that have no effect on the core functions of the Board. The sitting governor, whether a Republican or Democrat, will still choose all of its members and it will remain an independent regulatory agency as before. Justice Ervin’s holding actually espouses the view that the governor should play a more or less active role in the workings of the Board, such that it can execute his “policy preferences.” Cooper himself and Mark Joseph Stern of Slate expressed worries about partisan gridlock on an eight-member bipartisan board, but gridlock goes both ways: it can affect or stall the intentions of both parties.
Some, like Colin Campbell at NC Insider, have astutely pointed out that perhaps “legislators should try the [restructuring of the Board] idea as a constitutional amendment – letting voters decide in a referendum”. Recent poll data suggests that the citizens of North Carolina would unequivocally choose an “equal-representation-style” bipartisan board over the present configuration.
The Board of Elections and Ethics Enforcement should play an important role in state political procedures. Regardless of how long the litigation drags out, we should remember that it is an independent agency that should value objectivity over anything else.
Disclosure: Outgoing Civitas president Francis DeLuca was one of the nominees for the new Board.