NC Governor Squares Off With Legislature In Lawsuit

Jan 5, 2017
Originally published on January 6, 2017 8:52 am

A three-judge panel in Raleigh will hear arguments Thursday between North Carolina's new Democratic governor and its entrenched Republican legislature over the separation of powers. Governor Roy Cooper is suing lawmakers over a bill they passed in special session after he had won but before he took office. Senate Bill 4 changes the partisan makeup of the State Board of Elections, and gives lawmakers more control over it. WFAE's Michael Tomsic joined Marshall Terry for analysis.

Why did Republican lawmakers say Senate Bill 4 was necessary?

They say the state board should be bipartisan, and they want to bring elections, ethics and lobbying laws under one roof. For decades, the elections board has been set up so the governor's party gets to sway close votes. But lawmakers added members so it'd be evenly divided between Republicans and Democrats.

While that does technically make it bipartisan, it also strips Cooper's Democratic Party from having the tie-breaking power the governor's party traditionally gets.

Is that why Cooper sued?

Partly, but the legal argument is more focused on who gets to appoint and remove board members. The governor used to appoint everyone. After all, the board is part of the executive branch.

But under the new law, the governor couldn't appoint or remove anyone for the next six months. In other words, lawmakers have sole authority to fill the new board.

What happens after that time frame?

As of July, the governor can appoint four of the eight members. But the board would need six members to agree to take any action.

In an order last week, Wake County Judge Donald Stephens said all that prevents the governor from exercising control over what's supposed to be an executive board, so he put the law on hold until Thursday's hearing. In Judge Stephens' order, he said Cooper is likely to succeed with his argument that the new board violates the separation of powers clause in the state constitution.

That one judge presided over the initial hearing. But why does the case now go before a three-judge panel?

In 2014, Republican lawmakers set up a new system for lawsuits challenging whether something is constitutional. In those cases, the chief justice of the North Carolina Supreme Court picks three judges to preside. Judge Stephens will not be one of them in this case. 

We're still at an early stage of this lawsuit. Thursday's hearing is about whether to put the law on hold while the full case plays out. In legalese, that's called a preliminary injunction.

This three-judge panel system has already resulted in one high-profile ruling on separation of powers. It involved the Coal Ash Commission set up in the wake of Duke Energy's massive spill into the Dan River. How might that case factor in?

That three-judge panel ruled about two years ago the legislature took too much appointment power from then-Governor Pat McCrory. The state Supreme Court mostly upheld that ruling, writing that the separation of powers is "fundamental to our form of government."

Judge Stephens cited that case in his initial order on the Board of Elections. Exactly how it compares to this case will likely be key to Thursday's arguments. 

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