By: Hannah Littlefield
Senate Bill 68 (“SB 68”) is arguably the most interesting election law issue in North Carolina. SB 68 merged the North Carolina Board of Elections and the State Ethics Commission, forming the State Board of Elections and Ethics Enforcement. The boards merged in June 2017; however, Governor Roy Cooper has yet to appoint members to the new board.
What is SB 68? SB 68 is a revision of Senate Bill 4—a bill created by the Republican-led General Assembly—that was struck down by a three-judge panel. The three-judge panel originally ruled that the merger was unconstitutional. Republican lawmakers revised Senate Bill 4, now SB 68, and passed the new bill on April 25, 2017. What is so interesting about SB 68? Three things: (1) SB 68 was created without a severability clause; (2) Governor Cooper filed a lawsuit against the legislative leaders arguing that SB 68 violates the Separation of Powers clause, interferes with the Governor’s ability to “faithfully execute the laws,” and violates the “non-delegation doctrine;” and (3) the press has not really caught on to the importance of the issues surrounding SB 68.
Governor Cooper sued the legislative leaders over SB 68, stating that the changes mandated by the bill were “unconstitutional because they violate the separation of powers provisions enshrined in the North Carolina constitution by shifting control” over the Board of Elections from the Governor to the General Assembly. Prior to SB 68, the “State Board of Elections consisted of five members appointed by the governor, with no more than three members from one political party.” After SB 68 passed through the Republican-led General Assembly and the merger between the agencies took place, the new board is set to consist of four Republicans and four Democrats. Even though Governor Cooper still has the power to appoint all of the board members, Cooper must select the new members from names assembled by the majority parties. Additionally, one of Cooper’s attorneys, Jim Phillips, stated that a major problem with the new board is that “to take any action, there must be a 5-member quorum, which won’t happen if members vote on party lines.” Without a quorum, the board will not be able to act.
The composition of the new board is particularly important since the board is in charge of appointing the Director of the Board. Initially, the General Assembly will select the new Director of the Board, who will serve through 2019, and then the board will be in charge of selecting the next Director. However, if the new board is unable to agree on a new Director, the current Director will continue to serve, possibly indefinitely. Moreover, Governor Cooper has no say in the process of hiring or removing the director. Phillips also noted that according to SB 68, the chair of the board will be a Republican every presidential election year. Noah Huffstetler III, the attorney for the Republican legislative leaders, stated that the “Governor’s power per SB 68 are on par with his current authority—he can appoint all eight members of the new board and remove them.”
Throughout all of the litigation between Governor Cooper and the legislative leaders, the state’s election process has been in an “ambiguous state at a time when municipal elections in Raleigh and other places are several months away.” Because the state board appoints county boards, and because Governor Cooper has not appointed a new board, some counties have been unable to make decisions. In North Carolina, counties have to phase out their old DRE machines for new machines; however, any new machine must be certified by the board. Without a board to certify new voting systems, some counties are left to rent out, or buy, one of the only certified, ADA-accessible voting machines in North Carolina at this time.
North Carolina is a hot spot for election law issues. Since April 2017, SB 68 passed the Republican-led General Assembly, SB 68 merged two distinct agencies and created the State Board of Elections and Ethics Enforcement, and Governor Cooper has yet to pick a new board. Even though the media has not really caught on to these issues yet, stay tuned, as Part II of this blog series will discuss whether the media has stepped up and started to report on the issues surrounding SB68.