In win for Cooper and Democrats, NC judges block GOP-backed elections law ahead of 2024
A panel of judges on Thursday granted Democratic Gov. Roy Cooper's request to block a new elections law before voters head to the polls in 2024.
The ruling from the three judges — two Republicans and one Democrat — was unanimous. They ruled that the law, passed by the Republican-controlled legislature last month, is likely an unconstitutional power grab. It's just a temporary ruling pending a full trial, likely to be held in early 2024.
Cooper attorney Jim Phillips argued in court Thursday that their decision was the only way to rule, based on other similar cases.
The new law — which would strip Cooper's power over the State Board of Elections and instead give that power to the legislature — is similar to another GOP-backed law that was struck down as unconstitutional by the North Carolina Supreme Court in 2018.
"This is not a close case," Phillips said, citing three Supreme Court rulings on political power grabs in recent decades that he said all back up Cooper's position. "It is clear that the legislature has given itself power that the Constitution vests in the executive branch."
Democrats in the legislature repeatedly criticized the changes as unconstitutional as the law was being debated earlier this year, and they quickly celebrated Thursday's ruling.
"The people’s faith in fair and free elections is at the very heart of a thriving democracy," top Democratic lawmakers Sen. Dan Blue and Rep. Robert Reives said In a joint statement. "We applaud the unanimous decision to block Republicans’ latest assault on our democratic process. The court’s clear rejection of the GOP’s attempted power grab is a win for voters and our state constitution."
Part of a larger push, ahead of 2024
In addition to changing who has the power to appoint election board members, the law would also make the board have an even number of seats for both parties, instead of giving a majority to whichever party holds the governor's office.
Republicans have said that's needed to improve election integrity. But critics, who include Democrats as well as professional election workers and experts, say it would lead to chaos in elections administration — and possibly even spell the end of early voting and other political issues that would presumably result in tie votes and inaction.
Martin Warf, an attorney for Republican lawmakers, tried convincing the judges not to block the law.
"We're going to allow elections to function in a way where people can say it wasn't because Democrats ran it, it wasn't because Republicans ran it," he said Thursday. "It was because they came together and found a solution."
He added that it's possible the court doesn't have the power to block the law, regardless of whether the judges believe the law to be unconstitutional. That echoes the theory behind the controversial "independent state legislature" doctrine that North Carolina Republican lawmakers argued at the U.S. Supreme Court earlier this year, claiming that legislatures should be largely immune from judicial oversight on election law issues. They lost that case in a bipartisan, 6-3 ruling.
Phillips called that theory outrageous Thursday and added that the new law is part of a larger pattern of what Cooper believes to be unconstitutional actions. The 2023 legislative session saw a flurry of controversial bills become law, after Republicans regained a veto-proof supermajority in the state legislature for the first time in five years.
Another of those new laws, SB 512, was written for the legislature to seize power from the governor over a number of other state boards and commissions. It was also judged to be likely unconstitutional earlier this year, by a judicial panel who ordered an injunction similar to the one granted Thursday.
The elections board law in court Thursday, SB 749, was one of two major changes to elections laws that Republican lawmakers passed this year over Cooper's veto. The other, SB 747, faces multiple lawsuits from voting rights activists and others.
If that law is allowed to stay in place for 2024, it would enact stricter rules for mail-in voting, and looser rules governing the behavior of partisan poll watchers, among other changes.
North Carolina is expected to be a key swing state in the 2024 presidential race, and races for governor, attorney general and other key offices could similarly come down to just a small margin of votes. That political reality is inspiring the new GOP-backed laws, as well as the Democrats' lawsuits seeking to strike them down.
A spokesperson for Senate leader Phil Berger said Republican lawmakers will keep fighting for the elections board overhaul to be implemented in time for next year's elections.
"The legislature voted to make the State Board of Elections a truly bipartisan board with an equal number of Democrats and Republicans," Berger spokeswoman Lauren Horsch said after Thursday's ruling. "Gov. Cooper sued to have it controlled by only Democrats. It’s critically important that North Carolinians trust the outcomes of the 2024 elections and legislative leadership will continue to fight to ensure that.”
NC Supreme Court could have final say
On Cooper's challenge to SB 749, Republican lawmakers have acknowledged that the previous law it's based on was ruled unconstitutional.
A similar change to the elections board was also later shot down by voters when proposed as a constitutional amendment in 2018, after every living governor — Democratic and Republican — publicly campaigned against it, as well as another similar amendment proposal, as overreaching power grabs.
A lawyer for the state government agreed with Cooper in court Thursday. Senior Deputy Attorney General Amar Majmundar said blocking it from taking effect would be "not just appropriate, but necessary."
But legislative leaders have said that since the GOP flipped control of the North Carolina Supreme Court in last year's elections, they believe they have a better chance of winning in court this time and getting the past precedent overturned.
Thursday morning before the ruling, Republican state House Speaker Tim Moore predicted an early loss for the legislature was possible, given the legal precedent declaring similar laws unconstitutional. That's why it's so important that the GOP flipped control of the Supreme Court in the 2022 midterms, he said.
"Ultimately the case has to get to the state Supreme Court, for the state Supreme Court to hopefully revisit what I would consider to be bad precedent," Moore said.
He noted that North Carolina has always had a weak governor — it was the last state to give the governor veto power, after holding out until the 1990s — and said efforts to further weaken the governor's office are in line with that political philosophy.
"We don't want that power centralized in one person," Moore said.
The new GOP majority on the Supreme Court has already issued several similar rulings in other voting rights and election law cases in the last 11 months, overturning past Supreme Court precedents to hand legal victories to the Republican-led legislature on gerrymandering and voter identification requirements.
Before the case can get to the Supreme Court, however, it must go through the trial process. After issuing their order Thursday temporarily blocking the law from going into effect, the judges told both sides to work together on a trial schedule, ideally aiming for January or February — ahead of the March primary elections.
The panel that issued Thursday's ruling, which will also oversee the trial, is made of Superior Court judges Edwin Wilson of Orange County, Lori Hamilton of Davie County and Andrew Womble of Pasqotank County. The case itself is based in Wake County Superior Court.
Hamilton and Womble are Republicans; Wilson is a Democrat. Three-judge panels in constitutional cases are chosen by Supreme Court Chief Justice Paul Newby, a Republican.
