A panel of state judges decided Monday that a recent North Carolina Supreme Court ruling favoring Gov. Roy Cooper means only a portion of a 2017 law combining the state ethics and elections boards is now struck down.
The unanimous order by three trial court judges is a victory for Republicans at the General Assembly, who two weeks after the Jan. 26 ruling passed small changes related to the combined board’s membership and Cooper’s powers. At the time, GOP leaders said they believed that was enough to conform to the Supreme Court’s majority opinion.
Cooper’s lawyers had argued the Supreme Court ruling meant the judges should void the entire law. That would have opened the door to Cooper’s wishes. He wanted the law to revert to what it was before December 2016 — separate elections and ethics boards, and Democrats getting a majority of elections board seats.
Writing for the majority in the 4-3 decision in January, Associate Justice Sam Ervin IV said provisions concerning board membership and appointments “taken in context with the other provisions of that legislation, impermissibly interfere with the governor’s ability to faithfully execute the laws” and are unconstitutional.
The judges mentioned Ervin’s words in Monday’s judgment, writing it was their job to “follow strictly the opinion of the appellate court.”
It’s unclear whether the GOP’s legal win will be permanent. The tweaks the legislature made to the board membership don’t take effect until after March 15 because Cooper announced last month he wouldn’t sign the bill into law — meaning a 30-day delay. The alterations call for a nine-member board appointed by Cooper and composed of four Democrats, four Republicans and one person from neither major party.
Cooper’s lawyers could appeal the trial judges’ decision to the state Supreme Court. And the governor already has signaled that he will sue again over the altered law, even though it creates the ninth member and gives Cooper the power to remove any member at this pleasure. Cooper has said the board changes, when taken as a whole, eroded his authority to carry out election laws and protect voting rights.
“Quite frankly, I think there’s a likely challenge to the new law if that new law stays in place,” Cooper attorney Jim Phillips told the three-judge panel in a Feb. 23 conference call. “The changes that were made were minimal.”
Senate leader Phil Berger and House Speaker Tim Moore said they were pleased the panel preserved a bipartisan combined board they have argued will lead to better administration of elections.
“We have addressed the court’s concerns about the board’s membership in a bill Gov. Cooper has already promised to allow to become law, and we once again encourage him to abandon taxpayer-funded and self-serving lawsuits,” Berger and Moore said in a release.
Legislators have tried three times to create a combined board. The first combined board approved in late 2016 already had been struck down by the same three judges who ruled Monday — Superior Court Judges Jesse Caldwell, Todd Burke and Jeffery Foster. That caused legislators to pass a second version in April that was the subject of the recent rulings.
Cooper spokesman Ford Porter said the administration has confidence the third “will meet the same fate” and get struck down.
The litigation has meant the elections board has been vacant since last June. Staff members have been performing administrative duties, and contested elections last fall were settled in court.
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