By: Margaret Lowry

In North Carolina, a partisan struggle over control of the State Board of Elections has led to a complete reshuffling of the state’s election code – not once, but twice.

In 2010, Republicans won a legislative majority in North Carolina’s General Assembly for the first time since 1898, and gained control over the executive branch two years later – giving the party complete control over the state government. The complete victory was short-lived. In 2016, the Republican incumbent was defeated by Democrat Roy Cooper.

Facing the prospect of losing their hard-won control, Republican lawmakers pushed through several pieces of legislation at a special session, including Session Law 2017-6 (originally Senate Bill 68). (It should be noted, the Republican party is certainly not alone in making last minute bids to retain control North Carolina, Democrats have also made partisan power grabs within the state.)

The crux of the bill was the creation of a State Board of Elections and Ethic Enforcement to replace the existing State Board of Elections. Under the previous system, the governor appointed five members to the board – three from his party and two from the opposing party. The new board structure consists of four members from each party, chosen from lists prepared by the party leaders, and a governor-appointed ninth member. Democrats were overwhelmingly against the new format, arguing that control of state elections would shift away from the governor. Governor Cooper warned that the new Board would result in deadlock over vital decisions in North Carolina’s elections, such as early voting.

But the bill didn’t just establish the new bipartisan board. The legislation prompted a rewrite of related sections of North Carolina’s general statutes, including the state’s election code. In order to bring together lobbying, campaign finance, ethics, and elections under the responsibility of the new State Board of Elections and Ethics Enforcement, SL 2017-6 merged related sections of the code into a single chapter, Chapter 163A: Elections and Ethics Enforcement Act.

The changes to North Carolina’s election code did not stop there. Initially, a three judge panel struck down the law, but the legislature made adjustments to the language and once again voted to create the new Board. Governor Cooper vetoed the bill, only to have the legislature override the veto. Then, the Governor filed suit.

After a drawn-out legal battle over the validity of SL 2017-6, the North Carolina Supreme Court found in Cooper v. Berger that portions of the legislation, including the section calling for a rewrite of the state’s election statutes, were invalid under North Carolina’s constitution. The court held that the new structure of the Board interfered with the Governor’s ability to faithfully execute the laws of the state. As a result, North Carolina once again had to reformat their election code.

The General Assembly reverted the structure of the state’s election code in Session Law 2018-146, which called for the Revisor of Statutes to “re-recodify Chapter 163A of the General Statutes back into Chapters 163, 138A, and 120C of the General Statutes. In preparing the re-recodified chapters, the Revisor of Statutes shall revert the changes made by the Revisor pursuant to Section 3 of S.L. 2017-6.” North Carolina’s Election code once again stood apart from the state’s ethics code.

An annotated version of North Carolina’s reverted code can be found online as part of the Election Law Program’s state election law eBenchbook.

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