North Carolina governor blasts law stripping election board appointment ability

RALEIGH, N.C. (CN) — A three-judge panel heard discussions Monday over legislation that removed the North Carolina governor’s power to fill seats on the state's Board of Elections.

The change was included in a measure passed during last year’s lame-duck session, which was disguised as disaster relief but stripped abilities from incoming Democrats after Republicans learned they had lost their supermajority in the 2024 election. 

The law, which was vetoed by former Governor Roy Cooper and then successfully passed before Republicans lost the seat necessary to override vetoes, rescinded the governor’s ability to fill seats on the state Board of Elections and instead granted that privilege to new Republican auditor Dave Boliek. Boliek also gained the ability to appoint members to county election boards and appoint the board chair.

Both Cooper and new Democratic Governor Josh Stein challenged the change in a lawsuit filed in December, claiming that it violates the separation of powers in the state constitution and keeps the governor from ensuring laws be faithfully executed. Republican leadership has a history of attempting to wrest authority over the state Board of Elections away from the governor, they argued, and previous challenges to the changes are still pending in court. 

Republican lawmakers are attempting to create a situation in which the governor’s oversight is nullified, and he is unable to remove statutory officers appointed by the General Assembly, attorney Jim Phillips Jr. for Stein said Monday morning. 

“There is no limiting principle to the power the General Assembly claims,” said Phillips. “They claim to be able to assign any executive duty to any Council of State member at any time. That view cannot be reconciled with our constitution, which clearly limits the General Assembly authority to assign executive duties.”

Stein must have oversight ability in order to perform his duties under law, Phillips said. But the panel appeared skeptical. 

What would prevent the General Assembly from moving the election board to another Council of State member if Raleigh court takes it away from Boliek, North Carolina Superior Court Judge Lori Hamilton asked. She also floated concerns that the General Assembly could feasibly remove all powers from the governor that aren’t constitutionally outlined, and give them away.  

“I’m hoping we’re not going to hopscotch around all nine members of the Council of State until we find one that would be appropriate to supervise the Board of Elections,” she said. 

Special Superior Court Judge Edwin Wilson Jr. also raised a similar concern that if the auditor retained control of the board, then resigned and was replaced with a Democrat, that the Republican-led General Assembly would just shift the election board to a Republican Council of State member — one of 10 elected officials in North Carolina's executive branch. 

“If the legislative branch can take this power from the governor and then give it to the auditor… isn’t that executive branch really serving at the absolute devotion to the legislature?” Wilson asked.  

Counsel for Republican leaders contended that the governor isn’t intended to have exclusive power. The change may take some “partisan pressure” off the election board and result in fewer data errors like the ones referenced in recent litigation over an unresolved election, attorney Mattew Tilley said. 

“To suggest that this is just an unchecked power grab really misses the point,” said Tilley. “The people are speaking.” 

Counsel for Boliek emphasized that the legislature has the ability to shift around or remove unenumerated Council of State responsibilities. The auditor’s office is less partisan, Boliek’s attorney W. Ellis Boyle said, and the auditor is “the right shepherd for this problematic flock that needs some tending to.”

“Governors do not appoint every member of every executive board or commission and that is perfectly legal and constitutional,” Boyle said.  

“A bad idea is a bad idea. That doesn’t make it unconstitutional,” mulled Superior Court Judge Judge R. Andrew Womble. 

Previous governors do not support the change, regardless of political affiliation, Phillips pointed out Monday morning. All former living governors filed an amicus brief in support of Cooper in a separate, ongoing appeal over an attempt to eliminate the governor’s power to appoint and supervise the election board. They contend that the change not only erodes the constitution’s separation-of-powers guarantee, but impedes on executive branch functioning. 

“There is no legitimate justification — nor has the General Assembly identified one — for eliminating the Governor’s executive power to appoint and supervise the Board of Elections,” they wrote. “In short, there is no problem in need of a solution here. Rather, for nearly 125 years, the Board of Elections has faithfully ensured that our elections are lawful and accurate.”

The issue of a bipartisan election board has been put to North Carolina voters before. In 2018, voters rejected a constitutional amendment that would have reduced the number of appointees on the board to four seats and restricted the number of appointees by the governor to two. Arguments against the measure emphasized the potential for an even number of members to gridlock. 

The panel declined to rule from the bench, but told the courtroom it expects to issue an order soon. 

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