Senate leader Phil Berger is defending legislation that Democrats consider a partisan power grab, as the bill passed the Senate Wednesday and heads to the governor.
The wide-ranging overhaul of executive branch power is tied to the latest bill addressing recovery needs from Helene, the storm that devastated western North Carolina in September. Republicans largely focused on the Helene measures during debate, avoiding mention of the more controversial elements.
The public was kicked out of the Senate gallery during the debate, after some protesters applauded Democrats’ speeches and Lt. Gov. Mark Robinson, presiding over the session, called for “these immature people” to be “taken out.”
In addition to stripping some power from the attorney general, lieutenant governor and superintendent of public instruction, the bill calls for the state auditor to appoint members of the State Board of Elections starting next year, effectively creating a GOP majority on the board that currently has a majority from the governor’s party. The new auditor will be Republican Dave Boliek, who defeated incumbent State Auditor Jessica Holmes.
Berger said the legislature has tried in the past to “have balance on the board that is responsible for counting votes and making decisions about elections,” and previous changes to the board have been blocked by courts.
“We felt that the auditor's office was a place that that would work, would be a place where it would function appropriately,” he said.
Berger also defended a proposed change that would require county election boards to finish counting mail-in and provisional ballots more quickly following Election Day. Democrats argued that change is impractical and would force understaffed election workers to work around the clock or risk throwing out valid ballots, but Berger questioned the integrity of this year’s process.
“We're seeing played out at this point another episode of 'count until somebody you want to win wins,'” Berger said. He did not provide any evidence or examples of ballots being counted improperly this year.
In addition to losing appointments on the elections board, Stein would also lose the ability to appoint a majority of members of the Utilities Commission, while the Energy Policy Council chaired by the lieutenant governor would be eliminated.
One of the governor’s current seats on the Utilities Commission would instead be appointed by the state treasurer, which will soon be Republican Brad Briner.
Explaining the changes, Berger cited court rulings in recent separation of powers cases that limited the legislature’s ability to give itself more seats on key boards and commissions. That led lawmakers to consider giving more appointments to executive branch positions like auditor or treasurer.
“The governor is not the only member of the executive branch that would have the authority to exercise executive authority,” Berger said. “We felt that the governor having two appointments to the Utilities Commission, the legislature having two appointments to the Utilities Commission, and the treasurer having one appointment, strikes a good balance.”
Senate Minority Leader Dan Blue argued the bill overall represents a retaliation for the recent election that saw Democrats win the governor’s office and other statewide races. He worries the changes to elections will harm the process.
“This isn't about improving elections, it's about manipulating them,” Blue said. “You're dismantling a system that has ensured fair and transparent elections for decades, and are replacing it with one designed to serve partisan interests.
“What's happening here is crystal clear: You're punishing people for voting a certain way,” Blue added.
Gov. Roy Cooper has voiced his opposition to the bill and is expected to veto. Lawmakers have now adjourned for the month but have scheduled dates in early December when they will likely return to override a veto, before a new legislature takes office in January with fewer GOP votes to overturn vetoes.
A source close to Lt. Gov. Mark Robinson told WUNC he might try to sign the bill into law while Cooper is traveling to Washington, D.C., which allows the lieutenant governor to serve as acting governor. Robinson later told reporters he did not plan to take action.
Other elements of the bill would:
- Require the governor to fill judicial vacancies from a list of recommendations provided by the political party of the departing judge, including N.C. Supreme Court and Court of Appeals. That would prevent Stein from picking a Democrat to replace a Republican judge who resigns or dies in office. Rep. Marcia Morey, D-Durham, says the bill would also eliminate judicial positions held by judges who ruled against the legislature in previous cases, although Berger denies that those judges were being singled out.
- Create new restrictions on the attorney general’s power to participate in lawsuits, namely those where action by the legislature is being challenged in court; Democrat Jeff Jackson won that office to succeed Stein, who at times declined to defend actions by the legislature he considered to be unconstitutional.
- As Democrat Mo Green takes over from Republican Catherine Truitt as superintendent of public instruction, the office would lose the power to appeal decisions made by the board overseeing charter schools, and oversight of the Center for Safer Schools would be transferred to the State Bureau of Investigation.
- Fund an additional $33.8 million to extend grants to childcare centers to make up for the loss of federal funds — money that the centers say they need to avoid closures.
- Eliminates the N.C. Courts Commission
- Transfer $227 million from the state’s rainy day fund for future Helene recovery projects. Republicans cautioned against spending too much state money now until more details of federal aid become clear.
