by The Carolina Journal

State Auditor Dave Boliek and top Republican legislative leaders argue in new court filings that recent rulings bolster their defense of a state law shifting North Carolina elections board appointments.
Gov. Josh Stein challenges the law that shifted appointments from his office to the auditor.
A three-judge trial court panel ruled for Stein in the dispute, but a state Appeals Court order blocked that ruling. The North Carolina Supreme Court later upheld appellate judges' decision.

State Auditor Dave Boliek and Republican legislative leaders argue in new court filings that recent rulings boost their defense of a state law shifting control of North Carolina’s elections board appointments.

Gov. Josh Stein, a Democrat, is challenging the portion of 2024’s Senate Bill 382 that shifted elections appointments from his office to Boliek, a Republican.

A three-judge trial court panel ruled in favor of Stein, but the North Carolina Court of Appeals blocked that ruling in April. An Appeals Court order allowed Boliek to take over elections board appointments in May.

Stein, Boliek, and legislative leaders continue to pursue the dispute at the state’s second-highest court.

Boliek’s latest brief Thursday cited the Appeals Court’s Oct. 15 ruling in another case pitting Stein against Republican lawmakers. Boliek’s brief labels the case “Stein Commissions,” though its formal title is Stein v. Berger. It deals with changes to appointments of seven state boards and commissions.

“This Court found no constitutional infringement with changing appointment powers as long as executive officers, not legislative officials, retained the majority appointment power,” Boliek’s lawyers wrote. “Here, the appointment power for the Boards of Elections remains fully within the executive branch. Stein Commissions is controlling, and this Court is bound by its own prior decision.”

“The text of our Constitution resolves this case,” Boliek’s lawyers added. “Intra-branch transfers of powers and duties within the executive branch are contemplated by, and authorized in, Article III of the North Carolina Constitution. The Constitution’s Reorganization Clause gives the General Assembly the power to ‘prescribe’ and ‘alter’ the ‘functions, powers, and duties’ of executive officers.”

“Consistent with Article III’s express terms, Senate Bill 382 transferred appointment power for the State and County Boards of Elections from one executive official to another, all within the same branch,” the brief continued. “This intra-branch transfer does not implicate separation-of-powers concerns, does not violate the Take Care Clause, and is not barred by the Vesting Clause. Nor does Article III, Section 11 impose any substantive constraint on the General Assembly’s intra-branch transfers.”

“The Governor misconceives his place within our plural executive, minimizing the constitutional stature of the other Council of State officers,” Boliek’s lawyers argued.

A separate court filing from top state lawmakers also referenced the “Stein Commissions” case, along with an earlier state Supreme Court order in the elections appointment dispute.

Those cases “pose an insurmountable problem for the Governor,” legislators’ lawyers wrote. “He no longer can rely on his original arguments to defend the trial court’s decision. Instead, he must find a new reason why assigning the Auditor the duty to appoint the State Board of Elections is supposedly unconstitutional. The trial court’s justifications no longer do.”

“[B]oth the Supreme Court and this Court have now rejected the Governor’s theory that ‘[t]he Constitution affords executive power to the Governor al one,’” lawmakers’ brief continued. “Instead, our Constitution establishes a plural executive and vests executive power in a multi-member executive branch that includes the Auditor.”

Stein’s lawyers wrote on Oct. 8 that the elections appointment shift “divests the Governor of authority to supervise the administration of North Carolina election law. For the first time in the State’s history, the General Assembly assigned complete authority to appoint, supervise, and remove members of the State Board of Elections and the chairs of all 100 county boards of election to the State Auditor, an official whose constitutional authority, unlike that of the Governor, has never been understood to encompass election administration.”

“Appellants’ short-sighted arguments neglect the actual text of our Constitution and the history and controlling precedent behind it,” the governor’s brief added. “More troubling, if the courts acquiesce to the General Assembly’s ‘shift-the-power’ strategy, the General Assembly can effectively control the executive branch, no matter who the people elect to be Governor or to the Council of State.”

“Fundamentally, the General Assembly here claims a power to — on its whim — transfer any executive duty or power from the Governor to any other executive official that it favors more at any time,” Stein’s lawyers argued. “The Constitution, however, does not allow the legislature to exert that ‘degree of control … over the execution of the laws.’”

An all-Republican three-judge appellate panel issued an order on April 30 allowing elections board appointments to move from the governor to the auditor.

The Republican-majority state Supreme Court split, 5-2, along party lines in upholding the appellate decision in May. Rulings against Stein paved the way for Boliek to make appointments that shifted state and county elections boards from 3-2 Democratic majorities to 3-2 boards favoring the GOP.

Now the Appeals Court must deal with the merits of Stein’s arguments against SB 382. The governor contends that the elections board changes encroach on his constitutional authority.

Appellate Judges Julee Flood, Michael Stading, and Tom Murry issued an order in April called a writ of supersedeas. It blocked the three-judge trial court panel’s ruling favoring Stein. The trial court would have invalidated portions of SB 382 that shifted elections board appointments from Stein to Boliek.

The state Supreme Court’s 5-2 decision upheld the appellate ruling nearly a month later.

“Importantly, the Governor’s filings do not ask this Court to decide the substantive constitutional issue, nor do we decide it here,” according to the Supreme Court’s May 23 order. No justice is listed as its author. “Instead, we must weigh the likelihood that the Court of Appeals made some error of law when it blocked enforcement of the three-judge panel’s order.”

Stein failed to show that the Appeals Court abused its discretion when blocking the trial judges’ ruling, the Supreme Court order explained.

“The Governor’s filings fail at the first step,” according to the order. “There are multiple grounds upon which the Court of Appeals could have made a reasoned decision to stay the three-judge panel order here.”

The panel “unambiguously misapplied this Court’s precedent,” the court majority agreed.

“It is well settled that the state constitution apportions executive power among the ten individually elected officers of the Council of State, led by the Governor,” the order explained. “In other words, the Governor heads the executive branch but does not unilaterally exercise the executive power.”

Previous Supreme Court rulings pitting the governor against state legislative leaders “have carefully and deliberately explained” that they did not address how the state constitution’s Separation of Powers clause applies to Council of State members like Boliek.

The three-judge panel “mistakenly concluded” that the earlier cases controlled the outcome of the current legal battle. “Having noted the three-judge panel’s plain misapplication of our caselaw, we cannot conclude that the Court of Appeals abused its discretion by temporarily staying the order pending full appellate review,” the court majority agreed.

“Although some executive functions, powers, and duties are exclusive to one of the ten Council of State members, others could plausibly be assigned to several, or even all, of the ten,” the court order added.

The dispute over SB 382’s provisions “remains vigorously contested” at the state Appeals Court.

Two Republican justices who supported the decision wrote concurring opinions.

“Executive power in North Carolina is not concentrated in one individual or office,” Justice Phil Berger Jr. wrote. “The governor does indeed wield the bulk of what is considered executive authority. But unlike the federal system, our constitutional structure is designed to scatter executive power amongst the governor and nine other statewide elected officials, collectively known as the Council of State. Thus, the intent of the people as expressed in the constitution was and is the diffusion of power in the Executive Branch.”

“Here, the intra-branch transfer of the Board of Elections to the State Auditor does not appear to delegate a core function of the office of the governor; nor does the transfer of authority disable the executive branch from functioning,” Berger added. “Because the mere reallocation of this authority within the Council of State is expressly contemplated in the constitution, we may lack the authority to limit the legislature’s actions here.”

“But the weighty constitutional questions are for another day,” Berger wrote.

Justice Richard Dietz wrote that “this case presents a much closer legal question than either the Governor or the General Assembly seems to think it does.”

When evaluating the shift of elections oversight to the state auditor, Dietz sees “arguments on both sides.”

“Unfortunately, the trial court’s order did not grasp any of this legal complexity, or any of the constitutional doctrine that underpins it,” Dietz wrote. “The trial court sided entirely with the Governor’s extreme position, reasoning that it ‘makes no difference to the constitutional analysis’ that the challenged law ‘transfers the Governor’s authority to the Auditor, rather than the General Assembly.’”

Trial judges determined that only the governor had the authority to ensure that state election laws are faithfully executed. “This reasoning is plainly wrong; all Council of State members have a constitutional duty to ensure that the laws for which they are responsible are faithfully executed,” Dietz responded.

“[T]he trial court’s reasoning could create an executive-branch earthquake that forcibly reorganizes huge portions of the administrative state,” he warned. “If the Governor were truly the only constitutional officer who can ensure that laws passed by the General Assembly are faithfully executed, it could upend everything from the Commissioner of Labor overseeing elevator inspections to the Commissioner of Agriculture presiding over the State Fair.”

Despite his concerns, Dietz disagreed with the Appeals Court issuing its order without explanation. That order allowed Boliek to move forward with his appointments. “It would create quite a mess to try to unring that bell through our own extraordinary writ,” he wrote.

Both of the high court’s Democrats wrote dissents.

Justice Anita Earls accused the majority of engaging in a “disingenuous act of double-speak, also known as gaslighting.”

“I disagree with the majority’s new and destabilizing constitutional rules which threaten public accountability over our state government, and with its mistreatment of the litigants in this case who have been denied the opportunity to argue their case before our Court prejudges the merits,” Earls wrote. “If the voters of North Carolina wanted a Republican official to control the State Board of Elections, they could have elected a Republican Governor. If they wanted David Boliek (the Auditor) in particular to run our elections, they could have elected him Governor.”

“The voters did not. They hired Joshua Stein and David Boliek to do specific jobs, and the General Assembly is without the power to thwart the voters’ will by restructuring those jobs after the election,” Earls added.

“The General Assembly may not grab power over enforcement of election laws by shuttling the Board between statewide elected officials until it finds one willing to do its bidding,” Earls wrote.

Justice Allison Riggs noted her colleagues’ “almost month-long delay” in addressing Stein’s request. The majority’s order allowed SB 382’s challenged provisions — “that a panel of superior court judges found to be unconstitutional beyond a reasonable doubt” — to take effect.

“The majority frames this as allowing a law to ‘remain intact,’” Riggs wrote. “Instead, the majority is rewriting precedent and creating an explanation for an unexplained Court of Appeals order in an effort to upend 125- years status quo for the North Carolina State Board of Elections while this case winds its way through the courts. The decision to allow this statute found to be unconstitutional to go into effect runs contrary to this Court’s precedent and threatens to erode the integrity of the judicial branch.”

Link to Original Article - https://www.carolinajournal.com/boliek-lawmakers-argue-recent-rulings-help-their-elections-board-case

Boliek, lawmakers argue recent rulings help their elections board case

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