RALEIGH — Jim Phillips Jr. feels like Bill Murray in “Groundhog Day.” The Wake County Superior Court judges do, too.
On Monday, a panel of three judges heard the latest arguments over a contested law that would shift elections appointment power from Democratic Gov. Josh Stein to Republican State Auditor Dave Boliek.
The judges said a ruling would be issued soon, but didn’t elaborate further.
But time is of the essence. State elections board members would be appointed in May. For county members, it’s June.
Since 2016, Phillips has litigated six iterations of this same case — all involving the Republican-controlled legislature trying to shift some or all election board appointment power away from the governor.
The methods have varied. First, the General Assembly tried to siphon off half of the appointment power to themselves. That didn’t get far.
Next, they attempted to create a board with an equal number of Democrats and Republicans. The state Supreme Court wasn’t a fan, but that didn’t stop legislators from later putting a similar question to voters through a constitutional amendment. It failed by a wide margin.
Most recently, the legislature has taken a different approach — handing off the governor’s appointment power to Republican executives. In 2023, they tried to shift administrative power to the Secretary of State while granting themselves appointment power. But in the middle of court proceedings in that case, a Democrat won that office.
Shortly after the election, the legislature pivoted, passing a law that would give the newly-elected Republican state auditor appointment power.
At stake is which political party holds majorities in the state’s five-member election boards. Currently, the governor has to appoint at least two Democrats and Republicans, but can choose their preferred party for the final seat.
It’s like “whack-a-mole,” Phillips said during Monday’s court hearing.
“As the record over the past eight years shows,” he said, “the General Assembly is on a mission to both enact and execute the state’s elections.”
The Wake County Superior Court has to decide, once again, whether the state constitution allows such a power shift.
Court of public opinion
North Carolina has never been a fan of all-powerful executives. That certainly applied to governors back in colonial times and the state constitution reflects that.
“Our constitution has never placed all power in the governor,” legislative attorney Matthew Tilley said during Monday’s hearing.
He argued that there is nothing in the state constitution explicitly banning the legislature from shifting appointment powers and so they have implied permission to do it.
However, Phillips cited two sections of the constitution he believes would limit the General Assembly’s power. First, the “vesting” clause, which states: “The executive power of the state shall be vested in the governor.” Second, the “take care” clause, which states: “The governor shall take care that the laws be faithfully executed.”
Phillips argued that these sections are clear: Executive power belongs solely to the governor. If the governor loses appointment power, then they have no control over whether the people on those executive bodies, like the State Board of Elections, are faithfully executing the law, Phillips said.
Tilley, on the other hand, thinks there’s room for everybody — or, at least, the other Council of State officers. He argued that although the governor is in charge of faithfully executing their duties, that doesn’t mean they have to be given every duty.
The state constitution gives the General Assembly the power to prescribe the duties of Council of State members, he said.
‘Glaring reason’
Judge Edwin Wilson pushed back on the idea that the case doesn’t involve separation of powers issues. If the legislative branch can give a power traditionally held by the governor to an executive they favor, doesn’t the executive branch effectively serve at the pleasure of the legislative branch?
There’s a pretty “glaring reason” why the legislature chose the state auditor for this job, Judge Lori Hamilton commented. Boliek is a Republican while Secretary of State Elaine Marshall — perhaps a more natural fit for the job — is a Democrat.
But playing politics isn’t unconstitutional, Tilley countered. And politics is what would theoretically stop the legislature from shifting all executive power from Democrats to Republicans, he added. At some point, legislative leaders would have to make a political calculation.
And, maybe, placing appointment power in the auditor’s office would take off some “partisan pressure,” Tilley said.
Hamilton disagreed.
“It’s not less partisan,” she said. “It’s perhaps less public. It’s perhaps less well funded … but it’s going to start if these powers start being shifted.”
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