North Carolina judges consider GOP law shifting election board picks from governor to auditor

RALEIGH, N.C. (AP) — North Carolina trial judges heard arguments Monday from attorneys for Republican legislative leaders who insist their latest method to attempt to wrest control of the State Board of Elections from a Democratic governor is lawful — this time giving the job of appointing members to the GOP state auditor.

But lawyers for Democratic Gov. Josh Stein, who sued to stop the changes approved late last year by the General Assembly and begin in earnest next month, contend the alteration suffers constitutional flaws similar to those that caused courts to strike down previous GOP attempts.

“The General Assembly is on a mission to both enact and execute the state’s elections,” Stein attorney Jim Phillips said while urging Superior Court Judges Edwin Wilson, Andrew Womble and Lori Hamilton to strike down the latest law. The judges didn’t immediately rule after a 2 1/2-hour hearing but have signaled they would act before the chief change starts May 1.

For nearly a decade, the Republican-dominated legislature has sought to erode or eliminate a governor's authority to appoint the board that administers elections. It's a practice set in state law over a century ago and results in members of the governor's party holding three of the five seats. Appointments are made from options provided by the two major political parties.

Republicans have complained that a governor has too much control over elections in the ninth-largest state, resulting in one-party decision-making and a lack of voter confidence. Democrats say the laws are a GOP power grab designed to give Republicans an unfair advantage in elections in the battleground state. The board's importance has been apparent in the still-unresolved election for a state Supreme Court seat.

Judges have blocked at least four alterations to the board’s composition approved by GOP lawmakers since 2016 and successfully challenged by Stein's predecessor, fellow Democrat Roy Cooper. Voters also rejected a 2018 constitutional amendment that would have forced the governor to appoint members recommended by legislative leaders from both parties. In March 2024, the same three judges — two registered Republicans and a Democrat — struck down the 2023 version of the law that would have moved board appointment authority from the governor to the General Assembly itself.

The fifth attempt to change the law — the subject of Monday's hearing — moves appointment duties to Republican Dave Boliek, who defeated a Democrat in November to become auditor. The auditor's position has had nothing to do with elections — it's best known for issuing reports uncovering waste and fraud in state government.

Stein’s attorneys said the latest law also should be struck down because it interferes with the governor’s ability to carry out his responsibility in the North Carolina Constitution to “take care" that laws are “faithfully executed” through an executive-branch agency like the board.

But an attorney for Senate leader Phil Berger and House Speaker Destin Hall said shifting the job to a comparatively low-key position like auditor is different. The entire board will continue to be appointed by an executive branch official, and the state constitution says the auditor’s duties are determined by the General Assembly, the legislators' attorneys wrote in a legal memorandum.

“The people’s representatives have made the policy call,” Matthew Tilley, a lawyer for the legislators, said of shifting the duty to the auditor. “That may result in more fair elections. It may take some of the partisan pressure off the Board of Elections." Hamilton, a Republican, said under the lawmakers' arguments, all gubernatorial powers not specifically named in the constitution could be moved by the General Assembly to other officials.

“If it's not just a barefaced power grab, why now? Why is this necessary? ” she asked Tilley. “If the General Assembly starts stacking up powers and duties under the auditor’s umbrella, it’s going to become very, very public and very, very contested very, very quickly.”

Cooper and Stein sued GOP legislative leaders in late December over the new law, which also includes changes to how the 100 county elections boards are chosen, which also with Boliek's involvement, would likely have Republican majorities, too. The county board changes begin in June. Cooper left office at the start of this year.

Boliek, who previously said he didn’t seek the election board appointment duties, joined the lawsuit and sided with GOP lawmakers. His attorneys also argued in court Monday. The judges' decision will assuredly be appealed.

Stein, the former attorney general, is also suing lawmakers over additional provisions in the wide-ranging law that weaken more powers of the governor and other Democratic officials.