North Carolina’s misconception of the State Board of Elections’ history

The organization of the North Carolina Board of Elections (NCSBE) has come under intense scrutiny after the Republican supermajority in the North Carolina General Assembly passed a bill that, among other things, moved appointment power and administrative authority over the NCSBE from the governor to the state auditor. 

Although there is little agreement about the normative and legal aspects of the move, the historical fact that the NCSBE was created in 1901 and the power of appointment has rested with the governor since then is universally accepted. Legal filings reference them, and even the general statutes themselves claim that.  

As we recently discovered, however, even this is wrong.

The original NCSBE was created in 1899, not 1901, and the legislature, not the governor, appointed the board’s members.

How the creation of the NCSBE in 1899 changed elections

While elections have always been constitutionally required, the North Carolina constitution has never explicitly spelled out how they must be conducted. Before the advent of the NCSBE, elections were predominantly administered under local authority.

County commissioners oversaw the appointment of registers and judges for county elections, with the sheriff acting as the certifying agent for the vote count and local races. Though the state had some direct power over elections (oversight was limited to multicounty districts and statewide elections), the state’s role in elections was spread out between the legislative and executive branches. 

Though still limited, the secretary of state took on most of the executive’s role in election administration. The secretary of state acted as both the public record keeper of election results and the keeper of county voter rolls, retaining registration records between elections and redistributing the books to the counties once a new election was called.

The secretary of state, governor, attorney general, and two legislative members acted as the ‘Board of State Canvassers’. Their duties included simply tallying the votes sent to them by county officials before both state legislative houses. The governor was only the signatory of federal elections and held the power to call for a special election.

The legislature was granted the power to oversee contested elections, which can still be found in the state’s constitution for executive elections today. An example of this was seen in 2005 in the state superintendent of public instruction race.

It is arguable how much locals had control over the administration of elections after the 1876 constitutional changes that made county commissioners appointed by “justices of the peace” (who themselves were appointees of the legislature). The right of counties to elect their commissioners was eventually restored in 1895, following the fusionist movement taking control of the state legislature from 1894 to 1898. Eventually, all 100 counties returned to direct elections of county commissioners in 1905.

The creation of the board of elections in 1899 reestablished indirect control of elections under the legislature. The original NCSBE consisted of seven members of the board who were elected by General Assembly. While not defined in statute, the composition consisted of five Democrats, one Republican, and one Populist.

The passage of the 1899 election law that created the board of elections (alongside other changes to the state’s administration of elections) spurred the ire of at least one of the state’s political parties.

The populist party rejected the creation of the then-Democratic legislature’s new board of elections for “political and partisan purposes,” alongside other election law changes the legislature made that year. However, their rejection of such election law changes like the literacy test and the grandfather clause was for less than noble reasons, as their concerns were only about the law’s impact on illiterate white voters.

Political gamesmanship and Racial discrimination tied into the NCSBE’s creation

1899 is noted for other changes in North Carolina election law, most notably the suffrage act, which instilled poll taxes, literacy tests, and the grandfather clause in the state constitution. Provisions for the enforcement of the literacy tests and poll taxes by the Board of Elections were a part of the 1899 bill creating the state and county boards of elections (starting on page 659).

The actions taken in this era of North Carolina history were not subtle but rather overt in their intent and impacts, especially when it came to the purpose of the suffrage act. Newspapers and politicians made clear why they were pushing for such laws to disenfranchise black voters.

Between the Wilmington massacre in 1898 and the overt calls for the disfranchisement of black voters from party leaders like North Carolina Gov. Charles Aycock, it’s difficult to picture the reestablishment of election authority back under the state instead of locals as something coincidental. While the “justice of the peace” could no longer act as a proxy of the state to control local administration, the creation of this new body allowed it.

The control of the board being moved to the governor may be even more evidence that the change was political and had racist implications, as Charles Aycock was the first to receive authority over the board in 1901 when he became governor. Before this, the Democratic legislature held the authority of appointments while Republican Daniel Russell was governor of the state.

Why does it matter that the records are wrong?

Why does two years and a different appointing authority matter at all? The history of North Carolina elections and the battles over election administration overlap heavily with our current debate on the subject. Fights over the partisan composition of the board, state vs. local autonomy, and other modern contentions seem to have historical parallels to this period.

The Board of Elections’ creation appears to stem from a desire for a political party to control the administration of elections. While the Legislature has the right to establish how elections should be overseen, the body’s composition has been in contest since its very inception—a fight that has continued to this day with Cooper v. Berger (2018) and other challenges to the ownership of election administration.

By missing the two additional years the board of elections existed, we miss the context of why it was brought into existence and the lessons we should learn from it. While there are always flaws with any system, the administration of elections should not favor one party over the other. The Cooper v. Berger (2018) decision should be overturned to allow for equal representation from both major political parties on the board, mirroring the Federal Elections Commission’s (FEC) structure.

While this model may sometimes lead to gridlock, it also prevents one party from having disproportionate control of election administration.

The post North Carolina’s misconception of the State Board of Elections’ history first appeared on John Locke Foundation.