As a classic example of trying to fix something that’s not broken, look no farther than the N.C. General Assembly’s overhaul last year of the State Board of Elections and its 100 county offshoots.
The changes, as stipulated in Senate Bill 749, would tangle the boards’ lines of authority six ways from Sunday and risk turning a smoothly functioning election system into a gridlocked mess. And far from being a controversy relevant mainly to assorted policy nerds and wonks, it would have ripple effects felt by ordinary voters, many of whom could find it more difficult to cast ballots while losing confidence those ballots would be fairly counted.
In November, a panel of Superior Court judges temporarily blocked S.B. 749 from taking effect as it considered a constitutional challenge from Democratic Gov. Roy Cooper. Now the same panel has decided that the block should be permanent, issuing a summary judgment in Cooper’s favor.
The judges, two Republicans and a Democrat, faulted Republican legislators for a “stark and blatant” encroachment on the governor’s rightful powers.
Seats on the State Board of Elections would be filled not by the governor but by the legislature. And no longer would the board, with five members, draw a majority of three from the governor’s party. At both the state and county levels, election board membership would be divided equally between Republicans and Democrats.
While that may look like a welcome nod toward bipartisanship, it could lead toward partisan standoffs when key issues must be decided – perhaps on where and when to allow early voting, thus affecting access to the polls. Voting rights priorities in general could be expected to take a hit. Tie votes on the boards could even mean a failure to certify election results, bringing the courts or the legislature itself into play.
The bottom line, as the judges saw it, was that the changes would sap the governor’s authority to oversee an executive branch agency and thus to fulfill his constitutional duty to see that the laws surrounding elections are “faithfully executed.”
The law was set to take effect in January. Even at that point, a monkey wrench would have been thrust into the gears of North Carolina’s election machinery as this year’s high-stakes elections approached. With many voters’ confidence in election outcomes already having been shaken – largely due to former President Trump’s evidence-free insistence that in 2020 he was cheated out of a second term – the last thing our hard-pressed election administrators need is a nice dose of chaos.
Yet not so strangely, chaos seems to be what Tar Heel Republicans are banking on. And it has to be said that their odds look pretty favorable.
Promptly on the heels of the Superior Court’s March 11 ruling, attorneys for the legislature’s top Republicans filed notice that they’ll appeal. It must give Senate leader Phil Berger and House Speaker Tim Moore the warm fuzzies to know that if the appeal reaches the state Supreme Court, they have an ace up their collective sleeves.
Executive duties
When the Supreme Court twice in recent years dealt with similar separation-of-powers issues involving gubernatorial appointments and legislative tinkering, the governor’s defense of his turf carried the day. But Republican Justice Paul Newby, who since has become the chief justice, was firm in his dissents.
Newby asserted that the legislature had acted in line with its constitutional prerogatives to shape executive branch agencies and to control appointments to those agencies. Hence, he argued, such controversies over the legislature’s actions involve policy matters lying beyond the courts’ proper authority to intervene. In legalese, they would be “nonjusticiable.”
In one of those cases, decided in 2016, the high court blocked the Republican-controlled legislature from undercutting Republican Gov. Pat McCrory’s oversight of three environmental regulatory boards. The decision was written by then-Chief Justice Mark Martin, also a Republican. It hinged on the finding that McCrory would be hindered in carrying out his duties as governor if majorities on the boards were appointed by, and thus answerable to, the legislature.
Newby disagreed, saying that just because legislators decided who would fill the seats, that didn’t mean they would control decisions by those boards. So in his view, that meant no violation of the doctrine of separation of powers.
He took a similar position in 2018, when Cooper successfully challenged a legislative move to combine the state elections and ethics boards and to water down his appointment authority. The upshot, the court’s majority decided, would have been to deprive the governor of his rightful degree of influence over the board’s policies as head of the executive branch.
But in Newby’s dissenting view, “Because the General Assembly acted within its express constitutional power, plaintiff’s challenge presents a nonjusticiable political question. The only separation of powers violation in this case is this Court’s encroachment on the express constitutional power of the General Assembly.”
Voter-friendly – or not
Newby was elected chief justice in 2020, and two years later the high court’s 4-3 Democratic majority became a 5-2 Republican edge. He and his allies on the court moved quickly to sidetrack significant rulings meant to curb extreme partisan gerrymandering and to increase state support for public schools so they met a constitutional standard of quality.
In both of those cases, they set aside the principle that the court’s decisions shouldn’t be thrown out just because of turnover among its members, with newcomers holding different views. They simply said their predecessors got things wrong and they were going to fix ’em.
What’s more, they leaned heavily on the notion that the legislature, as one of the state’s three branches of government, is first among equals. So it’s easy to see how the high court’s Republican bloc could decide not in Cooper’s favor but in the legislature’s if it ends up taking the election board case. Perhaps the main obstacle to such a ruling, if there is one, is that it would come so deeply into the election calendar.
Republican Party hostility toward an election administration controlled by Democrats has been a constant in recent years as Democrats have sought to make voting easier while countering Republican efforts to do the opposite.
A loosening of regulations surrounding mail-in ballots during the pandemic election of 2020, intended to let people avoid crowded polling places, was a particular grievance – even though it didn’t stop Trump from narrowly carrying the state. For GOP legislators, the vow seems to have been, “Never again!”
At the same time, North Carolina Republican leaders have veered into obsession over what they claim are threats to election integrity. National party chair Michael Whatley, newly promoted from the North Carolina chairmanship at Trump’s behest, touts a range of measures ostensibly to prevent fraud while actually likely to inhibit turnout – an overarching Republican strategy given the party’s numerical disadvantage in membership.
Election boards will have an integral role in deciding whether or not voting proceeds in ways that encourage eligible citizens to have their say. An administrative regime that answers to a governor who favors strong voting rights is one that is geared to uphold small-d democratic values and especially to help protect the interests of those who might otherwise lack influence over their elected leaders.
It’s no surprise that Republican legislative chiefs view such a regime as a threat. Our highest court would do well not to become, yet again, the enabler of a legislative majority for which retaining power seems to be a paramount goal, even when the public interest suffers.
