Top legislators oppose Stein’s attempt to block election board changes

North Carolina’s top legislative leaders object to Gov. Josh Stein’s request for a restraining order and injunction that would block pending changes to the State Board of Elections. A hearing on the issue is scheduled Monday in Raleigh.

Without any court action, elections board appointments would shift from the governor to State Auditor Dave Boliek on May 1. State law also calls for Boliek to take over administrative oversight of the elections board. Stein is a Democrat. Boliek and legislative leaders are Republicans.

Superior Court Judges Edwin Wilson, Lori Hamilton, and Andrew Womble will convene Monday to hear arguments for and against Stein’s request to block the elections board changes. He seeks a court order against multiple sections of Senate Bill 382, approved last December over then-Gov. Roy Cooper’s veto.

“To claim such extraordinary relief the Governor makes an even more extraordinary claim: Despite its text, structure, and history, our Constitution actually establishes a unitary executive, rather than the plural executive model that has been a feature of this State’s government since its founding,” legislative leaders’ lawyers wrote in a court filing Thursday. “Accordingly, the Governor claims that all executive power must vest in him, and that no duties (at least not duties he wants for himself) can be assigned to any other executive officer.”

“Like all other acts of the General Assembly, Senate Bill 382 (which was passed over the Governor’s veto) is presumptively constitutional,” the court filing continued. “The North Carolina Supreme Court has made this clear, time and again. And yet the Governor seeks to push that presumption aside in order to urge the Court to enjoin Senate Bill 382 merely because he disagrees with it. But his disagreement is not enough. It is not enough to invalidate the law, nor is it enough to enjoin it.”

“The General Assembly … has the express authority to organize government and assign duties to the members of the executive branch,” legislative lawyers argued. “Accordingly, updating the Board of Elections’ structure is ‘committed to the sole discretion of the General Assembly.’ And importantly here, it has express power to assign duties (i.e., executive functions) to the other elective officers that comprise the executive branch.”

“[T]he Governor is left with an astounding ask of this Court: Enjoin a law enacted in accordance with an express constitutional provision, based on a legal claim that has never been adopted by any of our appellate courts,” the court filing added.

“The court intends to issue its ruling by May 1, 2025,” according to a March 26 order signed by Wilson.

Wilson is a Democrat. He and fellow judges Hamilton and Womble, both Republicans, have been overseeing the lawsuit since Cooper first challenged proposed election administration changes in October 2023.

Boliek filed a brief on March 12 accusing Stein of arguing that the governor should “own” the elections board. Stein filed a motion two days later seeking to block the shift of election appointments to the auditor.

“In State ex rel. McCrory v. Berger [a 2016 precedent], the Supreme Court explained that ‘[u]nder the rule that [the legislature was advancing], the General Assembly could appoint every statutory officer to every administrative body, even those with final executive authority, and could prohibit the Governor from having any power to remove those officers,’” Stein’s lawyers wrote in a follow-up brief filed on March 17. “The Court concluded that such a  ‘rule would nullify the separation of powers clause’ because it would give the General Assembly ‘the … ability to control the executive branch.’”

“The rule that the Legislative Defendants advance in this case is functionally no different,” Stein’s lawyers argued. “Instead of claiming the right to appoint directly a majority of the members of boards and commissions, Legislative Defendants now claim an unfettered right to select the appointer by splintering the executive power of the State that the Constitution vests in the Governor and transferring it among Council of State members statutorily.”

“This assertion of power is breathtaking: if the Legislative Defendants prevail, the General Assembly may, at any time, strip any disfavored official, including the Governor, of the authority to appoint and remove executive branch officials, and transfer that power to different Council of State members until they manage to secure their preferred appointees,” the governor’s lawyers added.

Both Stein and Republican legislative leaders seek summary judgment from a three-judge Superior Court panel. Summary judgment would allow judges to decide the case without a trial.

“The Governor’s insistence that our Constitution requires that he hold all executive power runs directly contrary to our Constitutional text, history, and precedent,” lawmakers’ lawyers wrote in a separate March 17 brief. “This remains true no matter how many times the Governor inserts the words ‘only,’ ‘exclusively,’ or ‘solely,’ into his brief. The drafters of our Constitution made a deliberate choice to check the accumulation of executive power by (i) establishing nine ‘other elective officers’ within the executive branch and (ii) expressly reserving the power to assign their duties for the General Assembly under Article ITI, Section 7(2).”

“Senate Bill 382 is the natural outgrowth of that choice,” legislative lawyers argued. “After years of litigation by the current Governor and his predecessor blocking efforts to establish a bipartisan board of elections, the General Assembly has now chosen to (i) transfer the Board of Elections to the Department of the State Auditor, and (11) assign the Auditor the duty to appoint the Board’s members.”

“In doing so, the General Assembly has made a policy decision the Constitution expressly authorizes it to make,” the court filing continued. “Nothing about shifting appointments to the Auditor violates the separation of powers. Indeed, the power to appoint all of the Board of Elections’ members remains with the executive branch.”

“The Governor’s claims accordingly fail as a matter of law,” lawmakers’ lawyers argued.

The case known as Stein v. Berger or Stein v. Hall is one of three current lawsuits targeting sections of SB 382. A second suit from Stein targets a provision that blocks him from appointing a new commander of the State Highway Patrol. A third suit challenges a portion of the law that would limit Stein’s choices when filling judicial vacancies and take away a gubernatorial appointment to the state Utilities Commission.

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