NORTH CAROLINA — Gov. Roy Cooper and Attorney General Josh Stein — the latter of whom will take over from Cooper as governor on Jan. 1 — sued legislative leaders regarding a bill that switches appointments power of the state and county boards of elections.
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Cooper and Stein have filed a lawsuit against Speaker of the House Tim Moore and Senate President Pro Tempore Phil Berger. The filing claims certain sections of S.B. 382 are in violation of North Carolina Constitution’s separation of powers.
In mid-November, S.B. 382 passed in a secretive and last-minute effort ahead of the Republican supermajority’s dissolution in January 2025. Dubbed a hurricane relief bill, S.B. 382 transfers $227 million from the state’s savings reserve to its Helene fund, but it notes resources shall remain unspent until further review by the General Assembly.
It also includes numerous other provisions in its 131 pages — including but not limited to restructuring state departments, prohibiting the governor from increasing unemployment insurance during emergencies and allowing industrial hog waste producers to receive renewable energy credits for creating biogas facilities. It also modifies election laws.
The governor and governor elect’s recent lawsuit takes issue with the restructuring of elections boards. It calls the bill’s provisions — passed only a week after a new Democratic governor was elected — a blatant misuse of power to “curtail” the incoming top state leader’s authority.
S.B. 382 transfers appointments on the North Carolina State Board of Elections from the governor to the state auditor. Republican Dave Boliek will take over appointing the board on May 1, 2025. He also will appoint 100 board chairs in counties statewide.
Currently, the governor elects all state board members. To fill out the county boards, the state board elects two people from each party and the governor elects the board chairs.
“We have had the same structure for our state board of elections for nearly a century and it has served North Carolina well, with fair and secure elections across our state through every cycle,” Governor Cooper said in a release. “These blatantly partisan efforts to give control over elections boards to a newly elected Republican will create distrust in our elections process and serve no legitimate purpose.”
Cooper vetoed S.B. 382 at the end of November, calling it a “sham” and a “power grab.” The veto was overridden on Dec. 11.
The lawsuit further clarifies the state auditor does not have “expertise or any knowledge of election law or election administration,” nor is he vested with authority under the Constitution like the governor is. Rather, the only qualification Boliek has is being a Republican, “with demonstrated fealty to Legislative Defendants,” the lawsuit claims.
North Carolina would be the only state nationwide that allows its elections administration to be overseen by a state auditor, according to the filing.
It points out another suit that three Superior Court judges struck down earlier this year as evidence of going against the state’s founding documents. Cooper filed a lawsuit against Moore and Berger in October 2023, regarding S.B. 749, also attempting to change the State Board of Elections’ structure. It warranted the current five-member Democratic-leaning elections board to become eight board members, split down party lines. It also switched appointment power from Cooper to General Assembly leaders.
Cooper originally vetoed S.B. 749, also overridden by the supermajority, before requesting it go before the courts. Two Republicans and one Democratic judge found the bill’s provision presented a “stark and blatant removal of the appointment power” that violated the state Constitution.
“In recent years, these legislative leaders have repeatedly tried and failed to seize control of the State Board of Elections for their own partisan gain,” Governor-Elect Josh Stein said in a release.
The lawsuit details six attempts in total.
The first began in 2016 when Cooper narrowly won against then-Republican Gov. Pat McCrory. After losing the election, lame-duck politics played out when McCrory called a special legislative session to address Hurricane Matthew recovery efforts but also suggested it cover other matters as needed. The result was S.B. 4, including an attempt to strip the governor of the State Board of Elections appointment power and increase board member makeup, but the courts ruled it violated the Constitution.
The measure even went before voters in 2018. While the voter ID law passed, two other Constitutional amendments failed, including Legislative Appointments to Elections Board and Judicial Selection for Midterm Vacancies.
When the House went to vote on S.B. 382 earlier this month, once again including state board elections changes, the chamber filled with protestors calling it a suppression of the will of the voters.
CATCH UP: ‘Destroys the will of the voters’: Protesters react to NC Senate’s override of SB 382 veto
Governor-Elect Josh Stein agrees: “This latest move insults the voters who rejected their power grab, violates our Constitution, and must not stand.”
Cooper and Stein note the appointment powers “undermine confidence in elections, and it contravenes the Democratic principles on which our state government rests.” More so, the lawsuit states the bill’s provision was included because the Republicans’ “preferred candidate” lost the gubernatorial election and therefore the bill “directly conflicts with the people’s selection of Governor as the State’s chief executive with the authority granted to him by our Constitution.”
“Provisions of the North Carolina Constitution prevent the General Assembly from restructuring executive agencies to deprive the Governor of constitutionally sufficient control,” the lawsuit states. “Mere statutes cannot override or rewrite the North Carolina Constitution.”
It is the second lawsuit Cooper and Stein have filed on S.B. 382. Another provision in the bill strips the governor from choosing his commander of the State Highway Patrol, a department currently part of the Department of Public Safety. S.B. 382 made it independent, though it remains Cabinet-level, with the top leader nominated to a five-year term by the governor, but subject to General Assembly confirmation.
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