North Carolina Gov. Josh Stein should retain control over several boards Republican state lawmakers tried seizing for themselves, the state Court of Appeals ruled Wednesday.
It was only a partial victory for Stein, however, as the ruling — from an all-Republican panel — allowed several other changes targeting the governor’s power to stand.
North Carolina has long had among the weakest governor’s offices in the nation; until 1996 it was the only state in the country that didn’t allow vetoes. And since Republicans took control of the state legislature in 2011 they’ve sought to weaken the governor’s office even further, since during most of the time since then the governor has been a Democrat.
But even former Republican Gov. Pat McCrory tussled with fellow conservatives in the legislature. One of the most important state court rulings to help judges determine which power grabs are unconstitutional or not is called McCrory v. Berger, named after the former governor and longtime state Senate leader Phil Berger, R-Rockingham.
Wednesday’s ruling dealt with seven state boards Republicans had tried giving their party power over in 2023, by taking away power from then-Gov. Roy Cooper, a Democrat, who began this lawsuit. It has continued under his Democratic predecessor in Stein.
The case deals with two laws that, combined, took away the governor’s power over seven state boards dealing with topic ranging from roads to economic development to the environment.
The judges ruled that in cases where the legislature had given itself the power over those boards, they acted unconstitutionally by violating the separation of powers. But in cases where they shifted control to a different executive branch office held by a Republican, instead of the Democratic governor, that didn’t violate the separation of powers and could be allowed to remain in place.
In the end, Wednesday’s ruling gives Stein back his control over the Board of Transportation, the Commission for Public Health and the Economic Investment Committee, a group that determines the state’s economic development strategy and which companies to try luring to North Carolina with taxpayer-funded incentives.
But the ruling allowed Republicans holding other executive branch offices to take power on the Environmental Management Commission, the Coastal Resources Commission, the Wildlife Resources Commission and the Building Code Council.
The judges’ ruling explains their logic in allowing the GOP control of those final four boards to stand. Although the state constitution says that the “Governor shall take care that the laws be faithfully executed,” they wrote that they read that to mean that any executive branch official can undertake those duties, not just the governor.
Spokespeople for Stein and Republican legislative leaders didn’t immediately respond to requests for comment on the ruling. It could still be appealed by either side to the state Supreme Court, since neither won a full victory in Wednesday’s ruling.
Elections board struggle separate
This lawsuit was separate from a different power-grab lawsuit that deals exclusively with the State Board of Elections.
Republican lawmakers have tried multiple times since 2011 to take away the governor’s power over elections. Two attempts were struck down as violations of the state constitution, so the legislature then asked voters to change the constitution. But their proposed amendment was shot down at the ballot box in a landslide 62-38 defeat in 2018 after every living governor, Democratic and Republican, banded together to urge voters to oppose it.
However, Republicans have so far succeeded in their latest effort to seize control of the elections board by taking power from Stein and giving it to Republican State Auditor Dave Boliek, a fellow executive branch official.
Stein won at trial, with a judge in Wake County ruling the scheme appeared to violate the state constitution just as prior attempts also had. The case then went to the N.C. Court of Appeals. That court still hasn’t issued a ruling on whether the new setup violates the constitution or not. But that Republican-majority panel allowed Republicans to go ahead and take over while the lawsuit remains pending, despite the trial court ruling that it appeared unconstitutional.
In the meantime the new GOP leadership of the elections board under Boliek quickly ousted former elections director Karen Brinson Bell, a veteran election administrator appointed by Cooper, and replaced her with Sam Hayes, a top lawyer for Republican state legislators. Boliek also created a new job to train and report on all 100 counties’ election board members, a role he hired former NCGOP boss Dallas Woodhouse to fill.
The board’s new leadership has also cleared the way for counties to eliminate Sunday early voting hours, a years-long priority of Republicans, which was previously ruled to be unconstitutional due to intentional racial discrimination, since Black voters use Sunday voting disproportionately.
