Yesterday, as this blog noted, Governor Cooper filed his brief in his effort to block the last-minute changes the North Carolina legislature made to abolish the existing state board of elections and replace it with a newly configured one.
The legal theory on which the Governor’s challenge is based is that this change violates North Carolina constitutional provisions regarding the State’s separation of powers. Quoting a recent North Carolina Supreme Court decision, the core of the Governor’s argument is that the new appointments process for the Board interferes with the Governor’s powers to execute the laws: “The separation of powers clause plainly and clearly does not allow the General Assembly to take this much control over the execution of the laws from the Governor and lodge it with itself.”
I wanted to flag the basis for the legal challenge because commentators frequently rush to conclude that the most likely and most effective way to challenge changes to laws that affect the voting process is to invoke the federal Voting Rights Act or federal constitutional provisions. But as this brief shows, the lawyers who litigate these cases have a greater range of legal tools available, and not infrequently conclude there are more effective ways to attempt to challenge certain types of changes to the electoral process. Of course, whether the Governor will ultimately prevail here remains to be seen.