In the days before Christmas, incoming Gov. Josh Stein & then Gov. Roy Cooper filed their second lawsuit, asking the courts to block appointment changes made to the State Board of Elections (SBE) under SB 382. The bill moves the appointment of the members of the SBE and the chairs of the county boards of elections from the governor to the office of the state auditor.
Stein and Cooper noticeably did not challenge the transfer of the SBE department from a strictly independent agency to one financially under the auditor’s office. Section 3A.2.(a) of SB 382 made clear that the board would still be considered an independent agency, and the auditor would not manage the SBE. The auditor’s office would have budgetary authority, and the SBE would continue to exercise its statutory powers independent of the state auditor.
Unlike the governor’s first lawsuit, against removing his appointment authority to the State Highway Patrol, Stein and Cooper’s argument is very weak and relies on the political theory that “that the executive power is solely vested in the governor” (page 18).
The theory is that North Carolina, despite having 10 elected members of the executive branch (not to mention other executive authorities such as the UNC Board of Governors and the State Board of Community Colleges), somehow has a unitary executive is a massive stretch by the governor and his attorneys. This novel legal theory relies on the quilting of two separate constitutional provisions:
- Article III Section 1, “The executive power of the State shall be vested in the Governor.”
- Article III Section 5 (4), “Execution of laws. The Governor shall take care that the laws be faithfully executed.”
This idea that executive authority runs solely through the governor seems to run counter to North Carolina’s history of distrust in executive power, as was evident in the limited authority granted to the governor under the state’s original constitution, which required he get approval from other members of the Council of State for any action he took. This sentiment has carried through in the modern day, with North Carolina’s governor being considered one of the weakest among the governors of the United States based on institutional powers.
This is not the first time Gov. Cooper has attempted to expand the governor’s authority under a broad reading of these two provisions. In 2020, Cooper argued that these constitutional provisions gave him authority over federal block grants rather than the General Assembly, the body in which the power of the purse resides. That was rejected by the Democratic majority on the state supreme court, with the sole descent coming from Judge Anita Earls.
The first time the idea of the governor having sole or unitary executive powers in the state seems to come from Cooper’s lawsuit on SB 512 and HB 488, both of which moved appointment authorities away from the governor. Similar to the governor’s lawsuit on the changes to the SBE, central to the governor’s lawsuit is the fact that many of the changes to the appointment authority are moved from the governor to other members of the executive. The John Locke Foundation and the North Carolina Institute for Constitutional Law filed an amicus brief in that case. Many of the points in that brief appear relevant to the governor’s challenge to the changes made to the SBE. The most pertinent argument is against the governor’s claim for unitary/ sole executive authority:
The Governor’s across-the-board challenge to SB 512 and HB 488 hinges on a theory that the General Assembly may not deprive a governor of any power or jurisdiction of the executive branch. Not only is that notion inconsistent with the General Assembly’s power to assign the duties of most executive branch constitutional officers, but it is also unsupported by the language of the Executive Vesting Clause, which, unlike the judiciary’s vesting language, contains no express restriction on the General Assembly.
The constitution clearly outlines the legislature’s authority to distribute power to the executive offices that comprise the Council of State (article III Section 7 (2) of the North Carolina Constitution) and to modify and change the authority and powers of various agencies (article III Section 5(10) of the North Carolina Constitution), even those under the governor. The idea that the Governor has broad authority over all appointments and holds sole executive authority in the state runs counter to the state’s current constitution and the conception that each Council of State member has autonomy as part of the executive.
The dispute about the governor’s ability to interfere with the autonomy of different executive members can be seen in even the 1990s, when the North Carolina Department of Justice found that the governor usurped the authority of other statewide executives attempting to mandate the filing of financial disclosure for appointments assigned to other members of the Council of State.
Going Against North Carolina Historical Precedent
The governor’s argument that the SBE must be under the governor rests heavily on a broad application of McCrory v. Berger, which was used in the Cooper v. Berger 2018 case. These cases appear strictly focused on the separation of powers between the Legislature and the governor controlling appointments.
This is best highlighted in footnote 5 of the McCrory v. Berger case, which gives insight into the opinion’s discussion of the faithful execution clause in Article III Section 5 (4) into the provision on which the governor relies heavily. The justices make clear that when discussing this provision, they are not weighing in on the separation of powers as applies to other members of the Council of State. The justices highlight that the agencies in question are principal agencies that fall under specific cabinet agencies that the governor oversees. It does not weigh in on agencies that fall under other members of the Council of State. This seems to imply that the McCrory case does not weigh in on moving authorities or independent agencies to other executive members and likely requires either an expansion of the interpretation of McCrory when discussing the faithful execution clause or a broader view of the governor’s appointment authorities than as applied in that case.
As a part of the court’s findings, justices determined that the interpretation of the governor’s constitutional appointment authority has not been modified since the changes made in 1876. The SBE was not created till 1901. During the period between 1876 and 1901, the authorities we typically associate with the SBE were distributed widely (chapter 16: Elections Regulations) amongst local county commissions, county canvassers, sheriffs, the state legislature, the secretary of state, and the governor.
Little power was assigned to the governor, and the only authorities vested in him were to call for special elections and be a signatory to verify federal elections. The secretary of state was the record keeper of registered voters and election results. Still, the authority of the official recognition and verification of the winners of statewide elections fell to the legislature. This provision was found in Article III, section III of the 1868 constitution, remnants of which can be found in the state’s current constitution that still provides for the Legislature to oversee disputes of statewide elections.
While the governor was a member of the board of state canvassers alongside the secretary of state, the attorney general, and two members of the state legislature, the board seemed only to aggregate the vote totals sent to them from local authorities. It did not have actual power over the election, as Section 2730 shows:
The board of state canvassers shall estimate the votes cast for officers of the executive department, from the abstracts forwarded to the secretary of state, and shall publish a statement of the result of such calculation, but this statement shall be for information of the public only, and shall not have the effect to determine what candidates have been elected to such offices. Their election shall be ascertained and declared according to section three, article three, of the constitution.
Local county commissioners were proscribed the authority to assign registers and judges of county elections; the election of local officials and state legislators would be certified by the sheriffs of their respective counties. Local county canvassers would see to the counting of all precinct votes. These numbers were given to the sheriff, the clerk of the superior court, and the secretary of state.
The governor’s authority over the election process in North Carolina seems to have come about with the invention of the SBE. Under this new board, the statute assigned the governor the authority to appoint the state committee members while the SBE would be in charge of appointing members of local boards of elections. This removed local authority over the overseeing of elections.
Given the integration into the statute and time frame of the creation of the SBE, which was just after the state enacted the literacy test and poll taxes, this removal of local autonomy was likely purposeful.
Ultimately, the governor’s argument that we have a unitary executive and thus he must control the appointments to the SBE requires a much broader interpretation of the execution of law clause than is given under McCrory, one which gives the governor authority over the agencies underneath other executive offices. This requires the court to state that, though its findings in McCrory stated that the appointment authorities of the governor have not changed since 1876, the way the state handled elections back then was unconstitutional due to not giving enough power to the governor. Given these facts, I cannot see the court finding in favor of the governor’s argument that the North Carolina State Board of Elections must be under his appointment authority.
