Grabier than “Gollum reaching for the One Ring”
Filing for the 2024 elections in North Carolina opens in four weeks: at noon on Monday, Dec. 4.
Democrats are already in court fighting the usual tricksy maneuvers from the Republican legislature. State Republicans roll their eyes and complain bitterly that Democrats filing lawsuits is more of the same tiresome resistance to their gerrymandered majorities. Naturally, Democrats would not be expending campaign resources on court so often if the GOP was not so routinely engaged in voter disenfranchisement and power grabs.
Their latest is a doozy.
After Democrat Roy Cooper defeated incumbent Pat McCrory (of HB2 “bathroom bill” fame) in the 2016 election for governor, Republicans called a lame-duck session ostensibly to address hurricane relief. What they really had in mind was changing the composition of election boards and stripping the incoming governor of appointment powers before he could take office.
The New York Times Editorial Board called it a brazen power grab:
… Republican lawmakers introduced bills to, among other things, require State Senate confirmation of cabinet appointments; slash the number of employees who report to the governor to 300 from 1,500; and give Republicans greater clout on the Board of Elections, the body that sets the rules for North Carolina’s notoriously burdensome balloting.
The graboids are back, bigger and badder than ever now that they have supermajorities in both chambers thanks to Rep. Tricia Cotham. This time they hope to change the rules ahead of the 2024 election with bills the GOP passed over Cooper’s vetoes.
Senate Bill 512, said Cooper’s Oct. 10 press release, “takes away the Governor’s majority of appointees on important boards and commissions, including the Board of Transportation, the Commission for Public Health, and the Environmental Management Commission among others.” It clearly violates “the separation of powers established in the North Carolina Constitution.”
Cooper’s Oct 17 press release describes the second, Senate Bill 749 (the doozy), as another violation of the separation of powers:
The bill, which Governor Cooper vetoed, would establish an eight-member State Board and four-member county boards, with all members appointed by the General Assembly and an even partisan split. The current State Board has five members appointed by the Governor, with at least two members from each major political party, and has successfully implemented fair elections in each cycle.
NC Senate President Pro Tempore Phil Berger and House Speaker Tim Moore legislated an end to that “fair” nonsense. This time they hope the GOP majority won last year on the state Supreme Court will have their backs.
In 2018, the North Carolina Supreme Court rejected the attempt by legislative Republicans to create an eight-member, evenly divided State Board of Elections. Following that loss, Republicans tried to amend the Constitution to do the same thing, however it was rejected soundly by the voters with 61% of the vote.
“The deadlocks that will be created on these new Boards of Elections at the state and local levels likely will reduce early voting and create longer lines at the polls. It will also undermine fair elections and faith in our democracy by sending disputes to our highly partisan legislature and courts,” said Governor Cooper. “Both the Courts and the people have rejected this bad idea and the meaning of our Constitution doesn’t change just because the Supreme Court has new Justices.
Cooper’s court filing challenging Berger and Moore’s attempt to eviscerate the separation of powers does not use “power grab,” but it does get colorful (emphasis mine)
- Showing flagrant disregard for these constitutional principles, the North Carolina General Assembly takes direct aim at established precedents and once again seeks to significantly interfere with the Governor’s constitutionally assigned executive branch duty of election law enforcement and to take much of that power for itself.
- Like Gollum reaching for the One Ring, Legislative Defendants are possessed by the power it brings. When it comes to seizing control of the enforcement of the State’s election laws, neither the clear rulings of the Supreme Court, nor the overwhelming vote of the people, will deter them.
- To be clear, nothing has changed since the last time Legislative Defendants tried—and failed—to cripple the State Board of Elections, except, of course, the composition of the Supreme Court. But Defendants Berger and Moore hope that is enough—that the new Court will discard the principle of stare decisis to give Legislative Defendants what they so desperately want.
What the NC GOP wants is to devolve all power over elections administration to Berger and Moore (or to Moore’s replacement as speaker; he’s expected to run for Congress in a district he just drew for himself). They’re counting on deadlocks in election boards the GOP-dominated legislature will appoint the way Trump means to pack executive branch agencies with loyalists if he wins the presidency. Cooper’s filing makes this clear. Senate Bill 749 (Session Law 2023-139) is a “Where’s Waldo” of graboids Berger and Moore.
If “for any reason”—including deadlock,” the eight-member state Board fails to elect a chair within 30 days of appointment, “either the President Pro Tempore of the Senate or the Speaker of the House of Representatives (depending on the year)” will. Berger or Moore.
“If for any reason”—including deadlock—“the position of Executive Director is not filled within 30 days . . . the position may be filled by legislative appointment.” Guess who?
If an Executive Director is not selected by January 10, 2024, Section 8.3 of Session Law 2023-139 permits the President Pro Tempore of the Senate to make the appointment. Berger again.
The same will hold in 100 counties. Three-and-two boards presently appointed by the governor, two members from each major party with the fifth matching the party of the incumbent governor, become two and two. The new law cuts the governor out of the loop: one each appointed by President Pro Tempore of the Senate, the Speaker of the House of Representatives, the minority leader of the Senate, and the minority leader of the
House of Representatives. Berger or Moore and two Democrats.
And should these four-four county Boards not elect a chair within 15 days of their first meeting or within 30 days of a vacancy, the position of chair may be filled by either the President Pro Tempore of the Senate or the Speaker of the House of Representatives, depending on the year. Berger or Moore again.
Section 8.2 of Session Law 2023-139 permits the President Pro Tempore of the Senate to fill the office of the chair of any county board of election that does not select a chair by January 10, 2024. By who else? Graboid Berger.
S 749 also sets up the potential for long lines for early voting, as Cooper explains in his August 24 statement:
Under Senate Bill 749, if the State Board were to deadlock on a county’s early voting plan – which is likely under a 4-4 split – then the plan reverts to just one early voting site in that county. That will result in long waits for the increasing number of North Carolinians who vote early.
Over 100,000 voted early here in 2020 at 16 early voting sites. Our early voting plan for the March 5 primary (11 sites) has already been approved by the local elections Board. I told a gathering last week that if the GOP tried that single-site business in my county next October-November, there would be a riot.
Then again, chaos is the plan.
Cooper’s filing reads like a slam-dunk case. Then again, who knows how far a stacked state Supreme Court will go to deliver for graboids Berger and Moore.