On March 5, 2018, a three-judge panel of Wake County Superior Court judges entered a final order in Cooper v. Berger, Gov. Roy Cooper’s challenge to Session Law 2017-6, which merges the former State Board of Elections, the former N.C. State Ethics Commission and the Lobbying Compliance Division of the N.C. Secretary of State’s office.
On Jan. 26, 2018, the N.C. Supreme Court held that provisions of that law regarding membership and appointment of the State Board of Elections & Ethics Enforcement, when taken in context with other provisions of the legislation, violated the separation of powers clause under the N.C. Constitution. The Supreme Court returned the case to the three-judge panel to issue an order consistent with its decision.
The panel ordered that G.S. § 163A-2, which deals with membership and appointment of the State Board, is void and therefore permanently enjoined. As such, there is currently no mechanism in state law to appoint members to the State Board, which has been vacant since June 2017.
But the three-judge panel’s order did not void any other parts of the law. As such, all other provisions of Session Law 2017-6, including the changes to the structure and appointment of county boards of elections, remain in effect, and lobbying compliance is now merged with the elections and ethics divisions of the State Board.
On March 6, 2018, the governor’s counsel asked the Supreme Court to review the lower court’s order and strike down Session Law 2017-6 in its entirety.
Meanwhile, on March 16, 2018, House Bill 90 will become law if it is not vetoed or signed by Gov. Cooper before then. The bill, which was passed by the General Assembly and sent to the governor on Feb. 13, would create a nine-member State Board, including four members each from the Democratic and Republican parties and one member who is not affiliated with either of those parties. The governor would select the ninth member from a list of two nominees selected by the other eight State Board members. The governor would have authority to remove members at the governor’s discretion.
Despite the legal uncertainty, the State Board office and county board offices continue to perform tasks necessary to administer elections, including the May 8 primary elections. Until a State Board is seated and able to appoint county board members, and unless other relief is granted by the courts, county boards with fewer than three members cannot meet as of March 5, 2018.