Cooper and legislators continue court fight over Board of Elections
This story was updated at 7:05 p.m. with new developments.
The state elections board will remain in place for now.
The North Carolina State Board of Elections and Ethics Enforcement, as it’s currently constructed, has nine members, but in October a three-judge panel ruled the board unconstitutional. A stay in the ruling that allowed the board to operate as-is had been set to expire Monday. But on Friday, a new stay was granted for two weeks, a spokesman for Senate leader Phil Berger said.
Earlier Friday afternoon, legislative leaders had announced they were filing a motion to continue the stay to ensure the board could continue to operate as it is.
The legislature and the governor’s office continue to negotiate to find a solution for the elections board composition.
Earlier, before the developments, Republican Rep. David Lewis of Harnett County had said the “best possible solution” at this moment would be for the legislature and Democratic Gov. Roy Cooper to return to court and jointly ask for another two-week stay in the decision, which would allow them to work on legislation to reconstitute the board. If Cooper’s lawyers didn’t agree to a joint request, Lewis said the legislature’s attorneys would still ask for a stay on the decision “because of the chaos this will create.”
If the board were to revert back to the way it was in 2016, its lobbying arm would have to go back to the secretary of state’s office and ethics enforcement would fall under the authority of the Ethics Commission — which currently does not exist.
“I don’t think it’s a legitimate request to go back to the way things were with the boards and commissions struck down,” Lewis said. “We are really trying to get to a consensus to head off this disaster on Monday.”
Lewis said the secretary of state’s office doesn’t have the space — or IT support — to bring back the lobbying division. A spokesperson for the secretary of state’s office did not return a request for comment on any plans for the lobbying division to potentially return to its purview.
“It’s clear that when the stay dissolves, the law will revert to the former board structure and we are reviewing what the law allows,” Ford Porter, spokesman for Cooper, said Thursday night.
An opinion letter from the N.C. Department of Justice, sent out by Cooper’s press team, outlines reverting back to the five-member board, with nominees appointed by Cooper from a list of individuals supplied by the state Republican and Democratic parties.
Lewis said in an interview Thursday that Cooper believes he can issue an executive order to address the concerns. “I don’t think that there has been an unwillingness on the part of the governor to work with us, I just don’t know that they truly thought through the logistical chaos that’s going to occur on Monday, which is why we’re asking them for a little bit more time,” Lewis said.
A spokesman for the State Board of Elections and Ethics Enforcement did not respond to an inquiry Thursday about how the agency’s operations will be affected next week.
At the end of Friday’s board meeting, chairman Andy Penry thanked the board members for their service.
“I have enjoyed serving with all of you. Thank you for your cooperation and hard work during the time we’ve served together,” Penry said.
“The only legal assurance that our elections administration can continue to function past Monday comes from a lawyer’s letter, citing just one case on the point, and that case says that ‘usually’ a void law’s repeal of a previous statute will not be given effect,” Sen. Dan Bishop, a Mecklenburg County Republican, said in a press release Friday. “With a Congressional race tied up in controversy and voter ID implementation set to begin, now is no time for uncertainty over whether the Board of Elections and Ethics Enforcement exists.”
In the press release, Bishop said it’s unclear if employees who show up to work on Monday will be paid or “whether their service during this period would count toward their pensions.”
Also on Friday, U.S. Rep.-elect Mark Harris filed a similar motion asking for the stay to be continued after concerns of voter fraud have prompted the elections board to not certify the election results in North Carolina’s 9th Congressional District.
“Make no mistake, I support any efforts to investigate allegations of irregularities and/or voter fraud, as long as it is fair and focuses on all political parties,” Harris said in a press release Friday. “But to date, there is absolutely no public evidence that there are enough ballots in question to affect the outcome of (the 9th Congressional District) race.”