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Should the governor or lawmakers have control of election boards? NC court to decide

With less than a week until the primary election, judges on Wednesday heard a case that could allow drastic changes to the composition of election boards, stripping the governor of all of his appointments and giving them to lawmakers.

The case deals with a law enacted in October as Senate Bill 749, which overhauls the structure of state and local election boards, splitting each of them equally between Republicans and Democrats and giving all appointments to legislative leaders.

Democratic Gov. Roy Cooper, the plaintiff in the case, argues that this law unconstitutionally strips power from the executive branch. Republican leaders say the change is a policy decision wholly within the legislature’s powers.

A panel of three Superior Court judges, two Republicans and one Democrat, temporarily blocked the law from taking effect in November.

That same panel — Edwin Wilson, Lori Hamilton and Andrew Womble — heard arguments for summary judgment in a Wake County courtroom on Wednesday, saying they’d likely have a ruling by March 8.

The case could eventually be heard by the state Supreme Court, which may be more likely to rule in favor of GOP leaders after Republicans won a majority on the court in 2022.

Lawyers debate whether election board appointments are under governor’s authority

Cooper’s lawyer, Jim Phillips, argued that SB 749 unconstitutionally grants executive power to the legislature and creates boards that are “almost ensured to deadlock.”

“Our Supreme Court has recognized on multiple occasions that separation of powers is a cornerstone of our state government and that it preserves liberty and protects against tyranny,” Phillips said. “Senate Bill 749 violates the separation of powers guaranteed to the people by the Constitution because it authorizes the General Assembly to both enact and execute the law.”

Phillips also noted that the legislature has made several attempts in the past to restructure election boards, all of which were struck down by courts or voters.

In 2018, Republicans put forward changes similar to SB 749 as a constitutional amendment. Over 61% of voters rejected it.

Under current law, election boards are structured to have three members of the governor’s party and two from the minority party.

Martin Warf, the attorney for Republican leaders, argued that the new board structure would insulate it from political decision-making.

“What they have tried to do is find a way to make that particular board independent of political influence, because it’s an area of law that applies to all three branches of government,” Warf said.

But whether that’s the best structure, he argued represents a “political question” that is outside the court’s jurisdiction. he said.

Judges on the panel appeared skeptical of this argument, pointing to a previous case in which the state Supreme Court held that similar election board changes “impermissibly interfere with the governor’s ability to faithfully execute the laws.”

North Carolina’s primary election is on March 5. Any potential changes out of this case are unlikely to go into effect by then, but could affect the general election in November.