All-GOP Appeals Court panel ruled against Stein in elections board dispute

Three Republican members of the North Carolina Court of Appeals issued the April order that blocked a lower court ruling favoring Democratic Gov. Josh Stein in a dispute over state elections board appointments.

Appeals Court rules blocked release of the names of participating judges for 90 days. Now the court has revealed that Judges Julee Flood, Michael Stading, and Tom Murry issued the April 30 order.

All three are Republicans. Republicans outnumber Democrats, 12-3, on the state’s second-highest court.

The Appeals Court’s action paved the way for State Auditor Dave Boliek to make new appointments to state and county elections boards. The state Supreme Court later split, 5-2, in upholding appellate judges’ decision.

Boliek is a Republican. His appointments shifted elections board majorities from 3-2 in Democrats’ favor to 3-2 Republican majorities. Among the state board’s first actions was to replace executive director Karen Brinson Bell with Sam Hayes.

The legal dispute remains with the state Appeals Court.

The state Supreme Court decision split justices along party lines. The five Republicans made up the majority. The two Democrats dissented.

The governor had argued that the shift of elections board appointments from his office to Boliek’s office violated the North Carolina Constitution.

Appellate judges had issued an order in April called a writ of supersedeas. It blocked a three-judge trial court panel’s ruling favoring Stein. The trial court would have invalidated the portions of 2024’s Senate Bill 382 that shifted elections board appointments from Stein to Boliek.

“Importantly, the Governor’s filings do not ask this Court to decide the substantive constitutional issue, nor do we decide it here,” according to the Supreme Court’s May 23 order. No justice is listed as its author. “Instead, we must weigh the likelihood that the Court of Appeals made some error of law when it blocked enforcement of the three-judge panel’s order.”

Stein failed to show that the Appeals Court abused its discretion when blocking the trial judges’ ruling, the Supreme Court order explained.

“The Governor’s filings fail at the first step,” according to the order. “There are multiple grounds upon which the Court of Appeals could have made a reasoned decision to stay the three-judge panel order here.”

The panel “unambiguously misapplied this Court’s precedent,” the court majority agreed.

“It is well settled that the state constitution apportions executive power among the ten individually elected officers of the Council of State, led by the Governor,” the order explained. “In other words, the Governor heads the executive branch but does not unilaterally exercise the executive power.”

Previous Supreme Court rulings pitting the governor against state legislative leaders “have carefully and deliberately explained” that they did not address how the state constitution’s Separation of Powers clause applies to Council of State members like Boliek.

The three-judge panel “mistakenly concluded” that the earlier cases controlled the outcome of the current legal battle. “Having noted the three-judge panel’s plain misapplication of our caselaw, we cannot conclude that the Court of Appeals abused its discretion by temporarily staying the order pending full appellate review,” the court majority agreed.

“Although some executive functions, powers, and duties are exclusive to one of the ten Council of State members, others could plausibly be assigned to several, or even all, of the ten,” the court order added.

The dispute over SB 382’s provisions “remains vigorously contested” at the state Appeals Court.

Two Republican justices who supported the decision wrote concurring opinions.

“Executive power in North Carolina is not concentrated in one individual or office,” Justice Phil Berger Jr. wrote. “The governor does indeed wield the bulk of what is considered executive authority. But unlike the federal system, our constitutional structure is designed to scatter executive power amongst the governor and nine other statewide elected officials, collectively known as the Council of State. Thus, the intent of the people as expressed in the constitution was and is the diffusion of power in the Executive Branch.”

“Here, the intra-branch transfer of the Board of Elections to the State Auditor does not appear to delegate a core function of the office of the governor; nor does the transfer of authority disable the executive branch from functioning,” Berger added. “Because the mere reallocation of this authority within the Council of State is expressly contemplated in the constitution, we may lack the authority to limit the legislature’s actions here.”

“But the weighty constitutional questions are for another day,” Berger wrote.

Justice Richard Dietz wrote that “this case presents a much closer legal question than either the Governor or the General Assembly seems to think it does.”

When evaluating the shift of elections oversight to the state auditor, Dietz sees “arguments on both sides.”

“Unfortunately, the trial court’s order did not grasp any of this legal complexity, or any of the constitutional doctrine that underpins it,” Dietz wrote. “The trial court sided entirely with the Governor’s extreme position, reasoning that it ‘makes no difference to the constitutional analysis’ that the challenged law ‘transfers the Governor’s authority to the Auditor, rather than the General Assembly.’”

Trial judges determined that only the governor had the authority to ensure that state election laws are faithfully executed. “This reasoning is plainly wrong; all Council of State members have a constitutional duty to ensure that the laws for which they are responsible are faithfully executed,” Dietz responded.

“[T]he trial court’s reasoning could create an executive-branch earthquake that forcibly reorganizes huge portions of the administrative state,” he warned. “If the Governor were truly the only constitutional officer who can ensure that laws passed by the General Assembly are faithfully executed, it could upend everything from the Commissioner of Labor overseeing elevator inspections to the Commissioner of Agriculture presiding over the State Fair.”

Despite his concerns, Dietz disagreed with the Appeals Court issuing its order without explanation. That order allowed Boliek to move forward with his appointments. “It would create quite a mess to try to unring that bell through our own extraordinary writ,” he wrote.

Dietz urged appellate judges “to expeditiously decide the case on the merits.”

Both of the high court’s Democrats wrote dissents.

Justice Anita Earls accused the majority of engaging in a “disingenuous act of double-speak, also known as gaslighting.”

“I disagree with the majority’s new and destabilizing constitutional rules which threaten public accountability over our state government, and with its mistreatment of the litigants in this case who have been denied the opportunity to argue their case before our Court prejudges the merits,” Earls wrote. “If the voters of North Carolina wanted a Republican official to control the State Board of Elections, they could have elected a Republican Governor. If they wanted David Boliek (the Auditor) in particular to run our elections, they could have elected him Governor.”

“The voters did not. They hired Joshua Stein and David Boliek to do specific jobs, and the General Assembly is without the power to thwart the voters’ will by restructuring those jobs after the election,” Earls added.

“The General Assembly may not grab power over enforcement of election laws by shuttling the Board between statewide elected officials until it finds one willing to do its bidding,” Earls wrote.

Justice Allison Riggs noted her colleagues’ “almost month-long delay” in addressing Stein’s request. The majority’s order allows SB 382’s challenged provisions — “that a panel of superior court judges found to be unconstitutional beyond a reasonable doubt” — to take effect.

“The majority frames this as allowing a law to ‘remain intact,’” Riggs wrote. “Instead, the majority is rewriting precedent and creating an explanation for an unexplained Court of Appeals order in an effort to upend 125- years status quo for the North Carolina State Board of Elections while this case winds its way through the courts. The decision to allow this statute found to be unconstitutional to go into effect runs contrary to this Court’s precedent and threatens to erode the integrity of the judicial branch.”

Stein asked the state Supreme Court to step into the case. He sought a court order before May 1, when SB 382 called for Boliek to make new state elections board appointments.

Stein’s petition criticized the Court of Appeals for allowing the challenged election shift to move forward, “despite the judgment of a duly constituted three-judge panel that those provisions are unconstitutional beyond a reasonable doubt.” 

“The Court of Appeals apparently concluded that the statute’s empowerment of the State Auditor to appoint members to the State Board starting May 1 presented sufficient exigency to justify permitting the unconstitutional provisions to take effect pending appeal,” Stein’s lawyers wrote. “But May 1 has no practical significance. The next statewide elections are far off. There will be plenty of time for the Auditor’s appointments down the road, should the courts ultimately resolve Legislative Defendants’ appeal in their favor.”

The trial court’s decision favoring Stein would have preserved the status quo during the legal battle, the governor’s lawyers argued.

“By contrast, the Court of Appeals’ Order upends the status quo entirely,” his petition explained. “If this Court allows that Order to stand, it will immediately end the terms of the State Board’s current members and empower the State Auditor, for the first time in our state’s history, to appoint an entirely new slate of executive actors. And if the panel’s decision is ultimately upheld on appeal, the need to unwind the changes wrought by letting the bill go into effect would cause even further disruption.”

Legislative leaders urged the state Supreme Court to reject Stein’s arguments.

“Despite the Governor’s hyperbole, it is the trial court’s order, not the Court of Appeals’ writ of supersedeas, that is unprecedented,” legislative lawyers wrote. “Although the Governor contends ‘[t]he COA Order represents a remarkable departure from the established practices of our appellate courts[,]’ it does nothing of the sort. Instead, Senate Bill 382 represents a legitimate exercise of the General Assembly’s plenary and express authority to (i) reorganize executive agencies and (ii) assign duties to the ‘other elective officers’ in addition to the Governor who serve as members of the executive branch.”

“The trial court rested its order on a radical theory that finds no support in our State’s constitutional text, history, or precedent — i.e., that our Constitution requires all executive authority to be vested in the Governor and the Governor ‘alone,’” lawmakers’ court filing continued. “But, as this Court has recognized, our State Constitution, unlike its federal counterpart, has never consolidated power in one man. Instead, it has always diffused power across a multi-member executive branch.”

Boliek also urged the high court to keep the Appeals Court’s order in place.

“The Governor tries to label the Court of Appeals’ Stay Order as some egregious departure from established court practices, but this label does not stick,” Boliek’s lawyers wrote. “It is an absurd contention. The Stay Order is right in line with what a writ of supersedeas exists to do.”

“The Stay Order maintains the status quo that has existed since Senate Bill 382 became law in December,” the auditor’s court filing added. “For months, the Auditor has operated in the framework the General Assembly established. In the months since Senate Bill 382 became law and the Auditor took office in January, he has made necessary arrangements to fulfill his new statutory obligations on the timeline set by the General Assembly.”

“Some of those obligations have now been fulfilled,” Boliek’s lawyers wrote. “Disrupting that process during the pending appeals would unsettle established expectations and undermine the orderly execution of the law. The Court of Appeals’ Stay Order avoids that outcome.”

“The Court of Appeals’ Stay Order also avoided throwing the executive branch into a state of uncertainty by virtue of the trial court’s order creating a fractured structure,” the auditor’s court filing continued. “The trial court enjoined only part of Senate Bill 382 — blocking the provisions shifting appointment power over State and County Board members to the Auditor — while leaving untouched the section transferring the State Board itself to the Auditor’s Office.”

“If the trial court’s order had not been stayed by the Court of Appeals’ Stay Order, the State would have operated under a regime the General Assembly never authorized or envisioned,” Boliek’s lawyers wrote.

“As the member of the Council of State specifically charged with ensuring government efficiency and transparency, the Auditor has a strong interest in seeing the Board of Elections function properly and lawfully. The General Assembly has given him that responsibility,” the court filing added.

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