The North Carolina Court of Appeals (Photo: nccourts.gov)
North Carolina’s five living former governors filed paperwork Tuesday in the Court of Appeals seeking leave to submit a friend-of-the-court brief supporting Gov. Roy Cooper’s legal challenge to a law that would shift the power to appoint state and county election boards to the General Assembly
Republicans Jim Martin and Pat McCrory joined Democrats Mike Easley, Bev Perdue and Jim Hunt to support the filing. This is the second time this month that the former governors have backed Cooper, who is also battling GOP legislative leaders over appointments to seven other state boards and commissions.
“The five living former Governors of North Carolina have a strong interest in this case: their interest in preserving the executive power, status, and dignity that the Constitution confers on the Office of the Governor,” lawyers for the former governors wrote in a court filing Tuesday.
In March, a three-judge panel sided unanimously with Cooper, ruling that the Republican-controlled legislature unlawfully tried to seize from the governor the power to appoint members of the state Board of Elections and shift it to the legislature.
Currently, governors appoint all five members, with three coming from the governor’s party. The new law would allow legislative leaders from both parties to appoint a board consisting of four Republicans and four Democrats. Membership on county boards of elections would shrink from five to four, with two members appointed by Republican legislators and two by Democrats.
The former governors said their interest in the case is nonpartisan.
“This case, after all, is not about partisan politics. It is about the separation of powers — a bedrock constitutional principle as old as the State of North Carolina itself. That foundational principle transcends politics.”
“[T]here 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,” the former governors’ lawyers wrote. “In short, there is no problem in need of a solution.”
The filing comes a day after Cooper and state Attorney General Josh Stein, who is running for governor, submitted briefs making similar arguments.
In 2018, the Supreme Court rejected a similar attempt by Republican legislators to remake the elections board. That year, voters also defeated a constitutional amendment that sought similar change.
In the brief filed by lawyers with the state Department of Justice, they point to the 2018 Supreme Court ruling.
“This appeal concerns whether the General Assembly can do what the Supreme Court enjoined it from doing just a few years ago: restructure boards of elections to eliminate the Governor’s constitutional authority to take care that the laws are faithfully executed,” according to a brief filed by lawyers with the state Department of Justice. “Because nothing has changed in the law since the General Assembly’s previous attempt to usurp the Governor’s authority in this way, the panel below was correct to hold no.”
In their March ruling, Superior Court Judges Edwin Wilson, Andrew Womble and Lori Hamilton wrote that the law “infringes upon the Governor’s constitutional duties” and described actions by GOP legislative leaders as “the most stark and blatant removal of appointment power from the Governor” since state Supreme Court rulings in 2016 and 2018 that favored the chief executive. Hamilton and Womble are registered Republicans, while Wilson is a Democrat.
That decision allowed the current five-member elections board, which has a 3-2 Democratic majority, to remain in place during the current election cycle.