Headshots of State Senate Leader Phil Berger, Gov. Roy Cooper, and House Speaker Tim Moore. Source: Carolina Journal

By Carolina Journal Staff

A three-judge panel will hold a hearing Thursday morning in Raleigh in Gov. Roy Cooper’s challenge of a new state law changing state and county elections board appointments.

Superior Court Judges Edwin Wilson, Lori Hamilton, and Andrew Womble are scheduled to oversee the case titled Cooper v. Berger. They will meet 10 a.m. Thursday at the Wake County Courthouse.

Hamilton and Womble are Republicans. Wilson is a Democrat. The General Assembly unanimously voted to confirm Wilson to a special Superior Court judge’s job this year after Cooper nominated him for the job.

State Supreme Court Chief Justice Paul Newby appoints three-judge panels to hear facial constitutional challenges like the one Cooper filed against Senate Bill 749.

The General Assembly enacted the measure into law in October over Cooper’s veto. It replaces the current five-member State Board of Elections, with a 3-2 Democratic majority. The new eight-member board would be split evenly between Republicans and Democrats. Legislative leaders from both parties would appoint the board members. Under the old board, Cooper appointed members based on recommendations from the state party leaders.

The new board is scheduled to take effect on Jan. 1. That’s also the date for new county elections boards split evenly between the two major parties.

A Wake County judge issued an order on Nov. 8 shifting the Cooper v. Berger case to a three-judge panel.

“N.C. Gen. Stat. § 1-267.1 and N.C. Gen. Stat. § 1-1A, Rule 42(b)(4) of the North Carolina Rules of Civil Procedure require that any action that is a facial challenge to the validity of an act of the General Assembly be transferred to a three-judge panel in the Superior Court of Wake County,” wrote Superior Court Judge Vince Rozier.

Cooper’s lawsuit against a new state elections board “raises a facial challenge to the validity of acts of the General Assembly. There are no other pending issues in this case which can be addressed at this time without resolving the facial challenges,” Rozier wrote.

Rozier’s order didn’t mention Cooper’s request for a temporary restraining order against the new elections board.

“These changes will cause immediate and irreparable injury, loss, or damage to the Governor if allowed to take effect,” Cooper’s lawyers argued in a motion.

Cooper asked for his restraining order request to be addressed before the case headed to a three-judge panel. His lawyers argued, “This Court has jurisdiction to resolve this motion.”

Cooper and Rozier are both Democrats. Newby is a Republican.

It was the second time in less than a month that a Cooper lawsuit moved from a single Wake County Superior Court judge to a three-judge panel. In the other case, also called Cooper v. Berger, the governor challenges changes in appointment authority for seven state boards and commissions.

In that case, the governor filed an Oct. 19 objection when the case was transferred to a three-judge panel without consideration of Cooper’s request for a temporary restraining order. The three-judge panel later granted the governor an injunction blocking changes to three of the seven challenged boards.

In the elections board lawsuit, filed on Oct. 17, Cooper challenges Senate Bill 749.

The governor argues the new eight-member board created by that bill “would gridlock North Carolina elections and violate the separation of powers,” according to a news release from Cooper’s office.

Local elections boards also would be split evenly between the two major parties. Under current law, the governor’s party holds a majority of seats on state and county elections boards.

“The deadlocks that will be created on these new Boards of Elections at the state and local levels likely will reduce early voting and create longer lines at the polls,” Cooper said in the news release. “It will also undermine fair elections and faith in our democracy by sending disputes to our highly partisan legislature and courts. Both the Courts and the people have rejected this bad idea and the meaning of our Constitution doesn’t change just because the Supreme Court has new Justices. The Supreme Court should accept the clear precedent and the clear voice of the people and reject the Legislature’s latest attempt to control the election process.”

The state Supreme Court rejected lawmakers’ previous attempt to create a bipartisan elections board in 2018. Voters defeated a constitutional amendment that year addressing the same issue.

Cooper’s complaint targets Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland. The suit says legislative leaders ignored state Supreme Court decisions that “reaffirmed the separation of powers as a foundational principle of our state government.”

“Showing flagrant disregard for these constitutional principles, the North Carolina General Assembly takes direct aim at established precedents and once again seeks to significantly interfere with the Governor’s constitutionally assigned executive branch duty of election law enforcement and to take much of that power for itself,” Cooper’s lawyers wrote.

“Like Gollum reaching for the One Ring, Legislative Defendants are possessed by the power it brings,” the complaint continued. “When it comes to seizing control of the enforcement of the State’s election laws, neither the clear rulings of the Supreme Court, nor the overwhelming vote of the people, will deter them.”

“To be clear, nothing has changed since the last time Legislative Defendants tried — and failed — to cripple the State Board of Elections, except, of course, the composition of the Supreme Court,” Cooper’s lawyers wrote. “But Defendants Berger and Moore hope that is enough — that the new Court will discard the principle of stare decisis to give Legislative Defendants what they so desperately want.”

Democrats held a 4-3 majority on the state Supreme Court in 2018. After building that majority to 6-1 in 2019, Republican sweeps of statewide judicial races in the last two election cycles have produced a 5-2 GOP majority on the state’s highest court