The Docket: If the Lawsuit Fits

This election year has created some unusual coalitions–especially in the presidential campaigns. As Ezra Klein, an opinion columnist for The New York Times, described it, the race has pitted “guardians” of traditional American institutions against “counterrevolutionaries” trying to tear them apart.

Here in North Carolina, a lawsuit over control of state and county election boards has united a bipartisan coalition of former governors.

Last week, former Democratic Govs. Jim Hunt, Mike Easley, and Beverly Perdue joined former Republican Govs. Jim Martin and Pat McCrory on an amicus brief in the state Court of Appeals supporting a lawsuit from Gov. Roy Cooper challenging the Republican-led General Assembly’s 2023 law dismantling an election board structure that had been in place since 1901.

The former governors described it as the legislature’s “latest unconstitutional power grab.”

“Although the former Governors’ affiliation is bipartisan …  their interest is nonpartisan,” the governors contend in the brief. “This case, after all, is not about partisan politics. It is about the separation of powers—a bedrock constitutional principle as old as the State of North Carolina itself. That foundational principle transcends politics.”

A bit of history:

• Shortly after Cooper’s election in 2016, the General Assembly enacted a law to strip him of executive branch powers before he was even sworn in to office. Among those was the longstanding state constitutional authority to appoint and supervise the state and county boards of elections. The state Supreme Court struck down that law in 2018 as unconstitutional.
• Seven months later, the General Assembly put a referendum to voters for a constitutional amendment that would have taken away the governor’s power to oversee the boards. That failed overwhelmingly in the 2018 election, with nearly 62 percent of voters rejecting the idea.
• In 2023, after state Rep. Tricia Cotham switched parties and gave Republicans supermajorities in both legislative chambers, the General Assembly voted once again to restructure the election boards. Cooper vetoed the bill, but Republicans had enough votes to override the veto.

Cooper filed his lawsuit in state court days later. A three-judge panel unanimously sided with Cooper in March, saying the appointment process in the 2023 law would interfere with a governor’s constitutional duty to ensure that elections and voting laws are “faithfully executed.” Two of the Superior Court judges on the panel, Lori Hamilton and Andrew Womble, are registered Republicans. Edwin Wilson was the sole registered Democrat.

In their brief supporting Cooper, the former governors call the General Assembly’s “passage of Senate Bill 749 is about as ‘stark’ and ‘blatant’ an attempt to violate the Constitution as North Carolina has seen in some time.”

Currently, the state board of elections is composed of three Democrats and two Republicans, all appointed by the governor from a list of nominees that the state party chairs submit. No more than three members of the board can be from the same party.

The election boards in the state’s 100 counties also have five members, and they must be registered voters in the counties where they serve. The state board appoints four—two Democrats and two Republicans–while the governor appoints the board chair in each county.

The 2023 change would expand the state board to eight members and transfer authority to lawmakers to appoint members evenly split among the parties. County boards would be two Democrats and two Republicans.

Although Republican lawmakers tout the revamp as a model meant to foster bipartisan support on elections issues, critics describe it as a recipe for deadlock on such key questions as whether to certify election results, launch an investigation into voter fraud or other misconduct, or to determine where early voting sites should be located.

“The real motivation… is the General Assembly’s desire to try, yet again, to seize the Governor’s executive power to appoint and supervise the Board of Elections—an attempt that comes after the Supreme Court rejected it the first time and the people of North Carolina overwhelmingly rejected it the second time,” the former governors contend. “The Court should recognize Senate Bill 749 for what it really is: the legislature’s most recent attempt at an unconstitutional power grab.”

—Anne Blythe

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If the Suit Fits

There was also news last week about another lawsuit challenging electoral processes.

The Republican National Committee and state GOP sued the state Board of Elections in late August over voter registration procedures, trying to force a purging of 225,000 voters from the rolls.

Their lawsuit contended the state board violated the federal Help America Vote Act when it “allowed over 225,000 people to register to vote with registration forms that failed to collect certain required identification information before the forms were processed.”

They asked the court to order the state board to remove those registrants or require those who had not provided a driver’s license or submit the last four digits of their Social Security numbers to be forced to file provisional ballots.

U.S. District Judge Richard E. Myers II, a Donald Trump appointee, issued a ruling October 17 dismissing part of the case and sending part of the case to state court to consider issues related to the North Carolina constitution.

The state elections board appealed, contending the lawsuit dealt with questions of federal law, not state law.

Last week, the U.S. Fourth Circuit Court of Appeals ruled in favor of the elections board, keeping the case in federal court.

“The court rightly rejected this dangerous attempt by plaintiffs to sidestep federal prohibitions against baseless voter purges on the eve of an election,” wrote several organizations and two voters that have sought to intervene in the case in a joint statement last week. “This decision casts serious doubts on plaintiffs’ remaining claim and we look forward to the trial court putting this issue to bed so North Carolina elections can be decided as they should be–by the voters themselves.”

—Anne Blythe

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Not a Prayer

The Winston-Salem/Forsyth County School Board recently ended the practice of beginning its meetings with non-secular prayers. 

The board had decided to stop in July but did so without a formal vote during a closed session because school board members feared possible litigation over the issue. In April, the Freedom from Religion Foundation sent a letter to board chair Deanna Kaplan challenging the constitutionality of the board’s practice. The Wisconsin-based nonprofit got involved after an unnamed parent made a complaint. 

But school board member Robert Barr asked Kaplan to put the issue on the October 22 meeting agenda for a public vote and allow people to express their opinions about the change before formally approving the change with a 6-3 vote, the Winston-Salem Journal reported.

First, the school board got an earful. 

“You can seek God’s light or you can seek a path of darkness,” Robert Jordan told the board, according to the Journal. “You can pray for God’s wisdom or decide your wisdom is greater than God’s wisdom. This is your decision, but know this: God will hold you accountable.” 

Michael Spangler told the board that he learned many things within Winston-Salem’s public schools that “poisoned his mind,” including about feminism and “anti-white hatred.” Spangler urged the board to return to leading with Christian prayer and to repent of prayerlessness and godlessness. 

Freedom from Religious Foundation attorney Chris Line had written that the school board’s prayers were “coercive, insensitive and intimidating,” and that they forced nonreligious people to choose between openly not praying or showing “deference to a religious sentiment in which they do not believe.” 

—Michael Hewlett

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