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Court sides with Gov. Cooper on control of state Board of Elections


A student picks up a voting sticker after casting their vote at the Chapel of the Cross church at 304 E. Franklin Street on Oct. 23, 2018. The Chapel of the Cross serves as an early voter location close to the University of North Carolina at Chapel Hill's campus. 

A North Carolina Court has ruled against a law giving the N.C. General Assembly control over the state Board of Elections, but a constitutional amendment on the ballot this November might make that ruling obsolete.

A three-judge panel ruled 2-1 in favor of Gov. Roy Cooper, who has argued that the General Assembly’s actions are unconstitutional.

The court agreed with Cooper, but its decision will not take effect until the election is complete.

“I think it’s a practical matter,” said Rob Schofield, director of NC Policy Watch. “If the court throws out the current Board of Elections and Ethics Enforcement, then there’s nobody there to run the election, then you could be precipitating a crisis of sorts.”

However, the court’s decision could be made irrelevant if North Carolinians vote in favor of a proposed constitutional amendment this election season.

The current Board of Elections is composed of four Democrats, four Republicans and one unaffiliated member to help break ties. The amendment would remove that ninth member and give the legislature most of the say in who sits on that board.

“The wild card in all this is what happens if this constitutional amendment passes,” Schofield said. “Then we’ll have to see how the interplay between the court ruling and the new amendment would play out.”

Some, such as N.C. Rep. David Lewis, R-Harnett, support the amendment and say it will help depoliticize the Board of Elections.

“Right now, we have a solely Governor-controlled Board of Elections and Ethics, filled with his hand-picked choices that routinely ignore the other party,” Lewis said in an email. “Voters deserve an elections board that investigates crimes and implements the law without favoritism toward any party or political agenda.”

Others, such as Gerry Cohen, former special counsel to the General Assembly, have expressed concerns about the implementation of the amendment if it were to pass. 

“We don’t know a lot of the details,” Cohen said. “In the past 35 years, the legislature has put 15 constitutional amendments on the ballot and in 14 of the cases, they passed the implementing legislation before the referendum, showing a lot of the details. This year, none of the six amendments have implementing language.”

Cohen also said the amendment poses a potential threat to early voting across North Carolina.

“If the county boards of elections deadlock on early voting and the state Board of Elections deadlocks on early voting sites, then each county will have one early voting site open business hours only at the Board of Elections office,” he said. “I think it’s a potential disaster and I don’t think it’s well thought through.”

Rachel Raper, Orange County’s director of elections, said that reduced early voting hours could be a possibility if the amendment passes.

“If there’s a deadlock, then early voting goes back to office hours,” she said. “It’s just kind of wait and see right now.”

Raper also emphasized that nothing has been set in stone yet.

“The legal road has not ended,” she said. “I’m sure each side will exhaust every legal option they have until eventually it goes to the Supreme Court.”

Cohen said he believes that the potential for reduced early voting may be serving as motivation for some legislators to push for this amendment.

“I think it would be an intended consequence,” he said. “I think that under our current scheme, if it is evenly divided between the two parties, given the increased rancor in North Carolina between the parties, that it could easily wind up deadlocking state election administration with four-to-four partisan votes.”

For now, both Cooper and the General Assembly will wait to see the results of the vote on the amendment in November.


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