With the actions of the North Carolina Court of Appeals this week, the appointment authority of the state board of elections moves from the governor to the state auditor as prescribed in last year’s Senate Bill 382 (SB 382). Although there has been plenty of news coverage on the matter, much of it conflates appointment authority with oversight of the North Carolina State Board of Elections (NCSBE) and fails to address the concerning notions found within last week’s superior court ruling.
Contrary to what some media outlets are saying, the state auditor has no more power over the board of elections than the governor previously did. That is to say, although the board of elections is now housed under the auditor’s office, it still remains an independent agency. The auditor’s authority over the elections board is simply that of appointments and finances from the state budget.
Adding to the confusion, comments from both Gov. Josh Stein and the state Democratic Party chair promote misconceptions about what the changes to the board affect.
Although the new board can make decisions that will likely be different from those of the prior board, the cure process is currently being halted by the Fourth Circuit while the case is currently before U.S. District Court Judge Myers. This, alongside the request to the court of appeals for clarity on its original ruling, means this case is likely to be settled not by the decisions of a new board but by the courts. With the case having Riggs and a plethora of other intervenors in her favor, it’s not the case that the new board can simply concede to Griffin’s challenge.
Additionally, Section 3A.2.(b) of SB 382 prevents the NCSBE from invalidating decisions of the prior board. Stein’s attempt to attach his argument of a “sole unitary executive” to the Griffin case appears to be little more than an attempt to attach this unconstitutional expansion of the governor’s authority to the unpopular Griffin case.
As I broke down last week, this ruling accepts the North Carolina governor as the “sole unitary executive” over the state, while other elected members of the Council of State are simply advisory. Even though the concept is antithetical to North Carolina’s founding principles (as can be seen from how the state is considered to have the weakest governor), the court misapplied Cooper I and the vesting clause to expand the governor’s powers greatly.
While I’ve written a full breakdown of why the governor’s argument doesn’t hold water both from a legal and historical standpoint, the question of him being a sole unitary executive has already been rejected by the Democratic supreme court back in 2020.
Media miss the NCSBE staff implications
Though the debate on the Griffin case has attracted considerable news coverage, most media outlets have missed the glaring impact of staff appointments that will be happening over the next month.
Because of how SB 382 overrides parts of SB 749, the executive director of the NCSBE would be up for appointment on May 15. If the court of appeals had not taken action prior to this date, the executive director would have been locked in place for a term of two years by a Democratic-majority board. Little could have been done to remove the executive director since that person would be locked into a two-year term and could have been removed only for cause.
Because the executive director also oversees the choices of staffing, Karen Brinson Bell or another executive director of the Democratic majority board would have authority over staff attorneys and other critical employees of the board. Even if the board appointments eventually transferred to the state auditor, the staff would still be from the Democratic-majority board.
This could also impact the directors of the county boards of elections. The statute specifies that if a county board is unable to agree on a person to recommend for the director position, the NCSBE director may choose an appointee.
In addition, if a decision is not made by June 24, the county boards of elections would also be affected. This is the date by which the NCSBE must appoint new county board members. Although the NCSBE chooses four members of each county board of elections, the appointing authority for the NCSBE chooses one additional member to be the chair of each county board.
It’s unclear if a decision of the court could remove these county-level appointments after appointments had been made.
While the governor and the press seem to want to focus on the Griffin case, they have missed the critical impact a delayed decision would have on key positions on the NCSBE. By ignoring this, many members of the press have missed the more impactful story, instead focusing on something unlikely to be impacted by the change in appointment authority.
