Decision about new Election Board law now in hands of three-judge panel

Update: Three-judge panel temporarily blocks law overhauling State Board of Elections

A three-judge panel did not rule from the bench today in Wake County about whether a new law passed last month by the General Assembly would be implemented before the constitutionality of the law is decided.

The first part of Senate Bill 4 would eradicate the current State Board of Elections and State Ethics Commission and merge their powers and duties into one new Board.

Members of the new Board would consist of four Democrats and four Republicans appointed by the governor and legislative leaders, respectively. However, they won’t be appointed until July and current members of the Ethics Commission would serve on the Board until then.

Cooper is challenging law in court, arguing that it violates the separation of power clause in the North Carolina Constitution and prevents him from faithfully executing election laws because he has no real power over the new Board.

Cooper v. Berger was filed just before the new year along with the request for a preliminary injunction. Judges Jesse B. Caldwell III, L. Todd Burke and Jeffery B. Foster heard arguments today about whether the new law should be implemented before the lawsuit’s conclusion.

Jim Phillips, a Greensboro attorney who represents Cooper, said that the Constitution “plainly and clearly” does not allow for the General Assembly to take that much control from the governor.

He said that because Cooper could not appoint a super majority to the new Board, remove anyone from the Board or supervise members, he could not make sure laws would be faithfully executed — a core duty of the executive branch of government.

Noah Huffstetler III, a Raleigh attorney representing Senate Pro Tem Phil Berger and House Speaker Tim Moore, argued that the State Board of Elections was an independent agency “set up to be, as much as possible, free of influence from other officials.”

Not implementing the new law, he said, would be changing the status quo because McCrory isn’t supposed to be in control of the Board of Elections, and the new law makes sure of that.

“What the governor suggests today is a radically different view of what these Boards do and [who controls them],” Huffstetler said.

Caldwell later asked if Huffstetler’s argument was true why the General Assembly didn’t pass the law during a previous administration or during the regular session that starts later this month. The attorney said he couldn’t answer those questions because he wasn’t part of the bill-passing process.

Caldwell also posed a couple questions to Huffstetler and another attorney representing the legislators, Martin Wharf, about what the harm would be to the defendants if the law wasn’t implemented right away to prevent the confusion, time and energy putting together something that could be dismantled in the end.

Huffstetler said there would be “an unquantifiable cost” because of the message it would send to future governor’s about how much control they have over the Board of Elections.

“[It would be] a fundamental change in understanding how the State Board of Elections works,” he said.

Phillips reiterated his argument and said the new law was an effort to create a structure that will allow the General Assembly through its appointees to have more control over the enforcement of the law.

“The notion that this is a wholly independent agency … without accountability to anyone is quite frankly unfathomable,” Phillips said.

Caldwell said the judges would take their arguments under advisement and make a decision later. The temporary restraining order Judge Donald Stephens previously implemented expires Monday, but the judges and attorneys said they would email each other about whether or not to extend it.

“We are very mindful that timing is of the essence,” Caldwell said.