BREAKING: 3-judge panel rules Board of Elections, Ethics Enforcement structure unconstitutional

A three-judge panel ruled the evening before early voting that Republican lawmakers unconstitutionally restructured the State Board of Elections and Ethics Enforcement after Gov. Roy Cooper was elected.

Provisions of a state law restructuring the State Board (including its executive director and chairperson) and county boards of elections violates the separation of powers clause in the Constitution by diminishing the Governor’s control over the agency, according to the 2-1 opinion released after 5 p.m. Tuesday.

Judges Jesse Caldwell III, a Democrat who presides in Gaston County and Todd Burke, a Democrat who presides in Forsyth County signed the opinion. Judge Jeffery Foster, a Republican who presides in Pitt County, wrote a dissenting opinion noting that he believed the issues were political questions and therefore nonjusticiable.

The split decision enjoins the parts of the law ruled unconstitutional but suspends that injunction until after the November election is certified so the election process can continue without interruption.

It’s not immediately clear if GOP legislative leaders will appeal the decision. There is a proposed constitutional amendment on the ballot that also restructures the State Board.

The State Board currently consists of nine members — four Democrats, four Republicans and one unaffiliated voter. The executive director is Kim Strach, who was appointed by former Republican Gov. Pat McCrory. County boards are composed of four members evenly divided by Republicans and Democrats.

The proposed constitutional amendment would eliminate the unaffiliated representation on the State Board and give the legislature more appointment power over the agency.

Read Tuesday’s full court opinion below:

3-judge panel order NCSBE by NC Policy Watch on Scribd