The North Carolina Supreme Court ruled in favor of Gov. Roy Cooper on Friday and against Republican legislative leaders, declaring the law creating a bipartisan board over elections and ethics is unconstitutional.
The 4-3 ruling fell along party lines with Democrat judges saying the law creating the eight member board, evenly spread between the two largest political parties in the state, was unconstitutional, while the three Republican judges dissented.
The majority opinion, penned by Justice Sam Ervin, says that the lower court erred when it dismissed Cooper’s claim saying that Cooper does have standing to bring the case, and ruled that, in line with a past case former Gov. Pat McCrory brought against the legislature, the governor is entitled to control a majority interest in boards with executive functions.
The majority opinion in the case reads, “In [State ex rel. McCrory v. Berger], in which we determined that the General Assembly had exerted excessive control over certain executive agencies by depriving the Governor of ‘control over the views and priorities of a majority of the members of the commissions at issue in the litigation.’”
The court ruled that under that interpretation, Cooper could not be required to appoint a sufficient number of appointees from outside of his “policy preferences” to block or deadlock his preferred policy initiatives.
The Supreme Court remanded the case to the appellate court to untangle the issue of separating the state bodies over ethics, lobbying and elections.
Chief Justice Mark Martin, joined by Justice Barbara Jackson, wrote one dissenting opinion, while Justice Paul Newby wrote his own dissenting opinion saying that the question should not have even been before the court, but he also agreed with Martin’s findings.
Martin broke with the majority over the ruling, which he said constrains the General Assembly’s constitutional authority to determine the size and structure of state administrative bodies.
Martin said that the standard applied from McCrory is not appropriate because in that case the legislature gave itself a majority of appointments on three state commissions that exercised executive functions whereas the unified elections board was to be fully appointed by the governor and included equal numbers of the two ruling parties in the state.
According to Martin’s opinion, “McCrory therefore clarified that the Governor must have ‘enough control’ over a body with final executive authority, such as by an appropriate combination of appointment and removal powers, to ensure that the laws are faithfully executed. Contrary to what the majority suggests, however, McCrory did not mandate that the Governor be able to appoint a majority of voting members who share his views and priorities to every executive branch board or commission.”
Martin said that the decision in McCrory essentially said that the governor could not be saddled with a minority of appointments, not that the governor was required to have the majority of appointments.
To require that would be a de facto ban on bipartisan executive bodies in the state.
Martin said that the ruling would be tantamount to ruling the Federal Elections Commission, which is a six member bipartisan body, unconstitutional.
The majority opinion also took issue with the legislation requiring some form of wrongdoing to remove board members, but Martin said that being able to remove members at will opens the board further to political influence.
Martin asked in his dissent if his Democratic counterparts on the court really believed that the state constitution prohibited neutral, bipartisan election boards.
Martin argued that by giving the governor appointment and removal powers, as well as having half of the appointments being from the governor’s own party, satisfied the requirements established in the state constitution.
Martin said that the court, in its majority decision, was overstepping its authority in its judgment that the legislative branch had overstepped saying, “By doing so, this Court has encroached on the General Assembly’s constitutional authority and placed the courts in the position of micromanaging the organization and reorganization of state government. Our decision in McCrory does not compel this result, and the prudential exercise of our limited role counsels against it. Just as the legislative and executive branches of government are expected to operate within their constitutionally defined spheres, so must the courts.”
Newby, in his dissent, wrote that the court lacked the authority to intervene and that the issue presented a nonjusticiable question and that for the court to take it up “violates the very separation-of-powers principle it claims to protect.”
Newby also said that the majority decision from the court “strips the General Assembly of its historic, constitutionally prescribed authority to make the laws and creates a novel and sweeping constitutional power in the office of Governor—the authority to implement personal policy preferences.”
At the end of his dissent Newby said, “The only separation of powers violation in this case is this Court’s encroachment on the express constitutional power of the General Assembly. Accordingly, I dissent.”