A unanimous three-judge North Carolina state court, in a 43-page decision here, held that North Carolina’s attempt to change the nature of election boards in the state to help favor Republicans violates the state constitution. (The judges were not unanimous on other challenged laws.) It is a big win for voting rights.
There is little question that the Republican North Carolina legislature, facing a new Democratic governor, attempted to change the election laws for partisan reason. Under the existing law, the governor would have been able to have a majority on both the state election board and county boards. These boards have broken down on party lines on issues such as how much early voting to set (as noted in the court’s opinion). The new plan would have taken the Elections Board, broken it up into a separate elections and ethics board, given the legislature the power to appoint a number of the members, required that the members be equally divided among parties, given Republicans control of the boards in even-numbered (presidential and congressional) election years, and required that it would take a majority to do anything on the board. In the event of a partisan deadlock, default rules would kick in that would benefit Republicans, such as one early voting site per county, and only during business hours.
The court held that this power grab violated three provisions of the North Carolina state constitution (the separation of powers clause, the executive powers clause, and the faithful execution clause. The unanimous court relied heavily on an earlier case involving taking powers away from the former Governor, Pat McCrory.
The case can be appealed, but note that the state Supreme Court has a new Democratic majority, to the extent this issue breaks on party lines (it well may not break along these lines). I’ll have to leave to others who know NC state constitutional law better than I do to handicap what will happen further on appeal.
Another question is whether the Legislature, with a veto-proof majority, could make other changes to election rules which could undermine the governor or the Elections Board’s powers without running afoul of the state constitution.
One thing the legislature could do is something like cutting back directly on early voting through a state statute, something which would not require the action of the Elections Board. Sure the legislature could try that, but it would immediately be challenged in federal court as a Voting Rights Act and U.S. constitutional violation. And given the earlier findings in the NC voting case that the North Carolina legislature acted with racially discriminatory intent (a ruling that the Supreme Court will soon decide whether to take up), it seems like a risky move. Indeed it is a move that could put North Carolina back under federal supervision of its voting rules.
[This post has been updated.]