The North Carolina Court of Appeals has blocked a lower court ruling favoring Gov. Josh Stein in his legal battle with state legislative leaders and Auditor Dave Boliek over elections board appointments.
The governor says the decision “poses a threat to our democracy and the rule of law.” The “only plausible explanation” for the Appeals Court’s action is to try to help overturn the results of last fall’s disputed state Supreme Court election, Stein argued on X/Twitter.
An order Wednesday afternoon from a unanimous unnamed three-judge Appeals Court panel could pave the way for Boliek to make new appointments to the State Board of Elections Thursday. State law also calls for Boliek to take over administration of the elections board.
Stein is challenging the law that shifts state election administration under Boliek’s office. Stein is a Democrat. Boliek and legislative leaders are Republicans.
The Appeals Court issued an order called a writ of supersedeas blocking a three-judge panel’s April 23 decision in the legal dispute. The panel split 2-1 in ruling that the election administration changes spelled out in Senate Bill 382 violated the North Carolina Constitution. The trial court panel ruled that elections board appointments should remain with Stein.
That decision “is hereby stayed pending disposition of defendant-appellants’ appeal or until further order of this Court,” according to the latest Appeals Court order.
Stein responded on X/Twitter within minutes of the Appeals Court’s decision. He referenced Republican state Supreme Court candidate Jefferson Griffin’s ongoing effort to challenge results in his 2024 race against appointed incumbent Justice Allison Riggs, the Democratic candidate.
“Jefferson Griffin lost,” Stein posted. “When you lose, you work harder the next time to win. You do not try to change the rules after the election is over. Today’s Court of Appeals decision about the Board of Elections poses a threat to our democracy and the rule of law. The Supreme Court should not allow it to stand.”
“I fear that this decision is the latest step in the partisan effort to steal a seat on the Supreme Court,” Stein added. “No emergency exists that can justify the Court of Appeals’ decision to interject itself at this point. The only plausible explanation is to permit the Republican State Auditor to appoint a new State Board of Elections that will try to overturn the results of the Supreme Court race.”
Top legislative leaders, supported by Boliek, asked the Appeals Court to put the trial court’s ruling on hold. Stein’s lawyers had submitted paperwork earlier Wednesday objecting to the request.
“Legislative Defendants’ Petition leaves the central question that it presents entirely unanswered: what is the ‘exigency’ that would justify this Court — without full briefing or argument — overturning more than a century of historical precedent and practice, numerous binding Supreme Court decisions, and last week’s presumptively correct ruling by a three-judge panel of the Superior Court holding Senate Bill 382 (Session Law 2024-57) unconstitutional beyond a reasonable doubt?” Stein’s lawyers wrote.
The “status quo is undeniably left in place” if the Appeals Court allows the trial judges’ ruling to stand during the course of the appeal, the governor’s lawyers added. Stein would continue to maintain control over elections board appointments.
“The next statewide elections are far off,” Stein’s lawyers argued. “There will be plenty of time for the Auditor’s appointments down the road, should the courts ultimately resolve Legislative Defendants’ appeal in their favor. If this Court’s intervention is critical at this juncture, it is Legislative Defendants’ burden to explain why. They have utterly failed to do so.”
“Legislative Defendants’ request would upend the status quo entirely,” the governor’s court filing continued. “Legislative Defendants effectively ask the Court to immediately end the terms of the State Board’s current members and empower the State Auditor, for the first time in our state’s history, to appoint an entirely new slate of executive actors. And if the panel’s decision is ultimately upheld on appeal, the need to unwind the changes wrought by letting the bill go into effect would cause even further disruption.”
Stein’s response arrived the day after Boliek filed his own brief supporting legislators’ request. The auditor critiqued the three-judge panel’s approach to executive power.
“The Panel’s order radically expands gubernatorial power,” Boliek’s lawyers wrote. “In its order, the Panel determined that all North Carolina Council of State members are subordinate to the Governor, which is an interpretation our Constitution does not support.”
Boliek and other members of the Council of State “answer to the people, not to the Governor alone,” the court filing continued.
“The Panel’s order also jettisons Article III, Section 7(2) of our Constitution that provides for the General Assembly to assign duties to the ‘other elective officers’ who serve as independently-elected members of the Council of State,” Boliek’s lawyers wrote. “By doing so, the Panel’s order again sidelines the vote of the people, who separately elect members of the Council of State to fulfill their General Assembly-prescribed duties, not to serve as assistants to ‘aid’ the Governor, as the Panel held.”
“The State Auditor’s Office is a constitutional office of the State of North Carolina,” Boliek said in a prepared statement released Tuesday. “My office fulfills its statutory obligations as prescribed by law, including the General Assembly’s decision to transfer election board appointments to the State Auditor.”
“I am prepared to take on the transfer,” Boliek added. “State Board of Elections leadership has been shifting blame away from their own inability to effectively manage. I will appoint election board members who uphold the law and put their focus toward counting legal votes, efficient tabulation, and consistency across counties.”
“There is even more at stake than election board appointments in this case,” the statement continued. “Gov. Josh Stein’s legal team is arguing that his office controls the nine other independently elected statewide officials that sit on the Council of State. I stand firmly against his power grab and will continue battling in the courts.”
Stein sued state legislative leaders over the provisions in Senate Bill 382 last year that shifted elections board appointments and oversight to Boliek. The auditor intervened in the lawsuit as a defendant. He filed his own notice of appeal in the case Friday.
The trial court panel split 2-1 on April 23 in ruling for Stein in the elections board dispute. The Superior Court judges granted summary judgment to the governor. That effectively ended the case without a trial.
Legislative leaders filed a petition Friday with the Appeals Court. They seek eventually to reverse the trial judges’ decision.
“The panel’s decision below represents a radical break from the multi-member executive branch that has been a feature of this State’s government since its founding, and replaces it with a regime that requires all power vest in the Governor ‘alone,’” lawmakers’ lawyers wrote.
Lawmakers emphasized the “plural executive” set out in the North Carolina Constitution. “Thus, in addition to the Governor, our Constitution provides that the executive branch shall include nine ‘other elective officers’ who serve as members of the Council of State, and then grants the General Assembly power to assign their duties, stating ‘their respective duties shall be prescribed by law,’” according to the court filing. “This reflects a deliberate decision by our founders, who intended it as a check against the consolidation of power in one man.”
The three-judge panel “helped the Governor effectively write these provisions out the Constitution,” lawmakers’ lawyers argued. The two-judge majority misinterpreted rulings from previous legal battles between the governor and General Assembly, the petition added.
“In short, the panel below ignored the text of the Constitution and relied on precedent the Supreme Court itself has said is inapplicable to block legislation enacted to eliminate the Governor’s stranglehold over the Board of Elections,” lawmakers’ lawyers wrote. “That is an abuse of judicial review.”
Upholding the trial court’s ruling “would permit judges to usurp the People’s power to decide how statutory duties should be allocated within the executive branch,” according to the court filing.
Superior Court Judges Edwin Wilson and Lori Hamilton made up the majority that ruled for Stein. Judge Andrew Womble dissented. Wilson is a Democrat. Hamilton and Womble are Republicans.
Stein’s lawsuit challenged provisions in SB 382, approved last December over then-Gov. Roy Cooper’s veto.
“Senate Bill 382 interferes with the Governor’s constitutional duties,” Wilson and Hamilton agreed. “All appointment powers for the State Board have been removed from the Governor and given to the State Auditor. And the Governor has no power to fill vacancies or remove members of the State Board, whether for lack of attendance or for cause. Likewise, with respect to the county boards, Senate Bill 382 takes from the Governor and transfers to the Auditor the power to appoint the chair of each board.”
“Thus, Senate Bill 382’s changes violate the Constitution,” the majority added.
“Because the duty to faithfully execute the laws has been exclusively assigned to the Governor, Senate Bill 382 cannot reassign that duty to the Auditor without violating the Constitution,” Wilson and Hamilton wrote.
“With respect to Senate Bill 382, the Constitution prevents the legislature from unreasonably disturbing the vesting of ‘the executive power’ in the Governor or the Governor’s obligation to take care that the laws are faithfully executed,” the court order added. “Moreover, the General Assembly’s power to prescribe duties to the Council of State is constrained by the people’s understanding of the purpose of those offices when they were created.”
The majority cited the governor’s “supreme executive power.” “Council of State members aid the Governor in executing the laws, but the Governor alone wields the State’s executive authority and bears the ultimate duty of faithful execution.”
“[B]eyond reasonable doubt, Senate Bill 382 contravenes the plain text of the Constitution, constitutional history and context, and binding Supreme Court precedent by assigning to the State Auditor the sole power to supervise the administration of our state’s election laws. Senate Bill 382’s changes to those boards are thus unconstitutional and must be permanently enjoined,” the majority concluded.
Womble would have upheld the election changes spelled out in SB 382.
“The General Assembly in Senate Bill 382 reassigns the duties of the auditor, while keeping the appointment power within the Executive Branch, which is still subject to the supervision and direction of the Governor,” he wrote. “The plain text of the constitution establishes the Auditor as a member of the executive branch and authorizes the General Assembly to assign his duties.” “Thus, the decision to assign the duty of appointment of members to the Board of Elections to the Auditor is one the General Assembly was expressly authorized to make,” the dissent concluded. “As a result, the Governor cannot show that Senate Bill 382 neither [sic] impedes his ability to take care that the laws will be faithfully executed nor violates the separation of powers clause.”
The post NC Appeals Court blocks lower court ruling favoring Stein in elections dispute first appeared on Carolina Journal.