RALEIGH, N.C. -- North Carolina Gov.-elect Roy Cooper filed a lawsuit Friday challenging the state Legislature's special-session measure that revamps the state election board.
Cooper's attorneys asked a Wake County Superior Court judge to block the law from taking effect while the lawsuit pends. Judge Donald Stephens granted the request after a hearing Friday afternoon.
The law was to take effect Sunday, the first day of 2017, when North Carolina's Board of Elections would officially have ceased to exist. That change will be delayed for at least a week, as Stephens set another hearing on the case for Thursday.
The law would merge the election board with the state Ethics Commission, which administers ethics laws governing lobbyists, elected officials and government employees. The merger bill was approved by the Republican-led Legislature during a special session earlier this month, and it was signed by Republican Gov. Pat McCrory. It was one of several changes to limit the power of Cooper.
Though the new body created by the law is described as independent, a lawyer representing Senate leader Phil Berger and House Speaker Tim Moore -- both Republicans -- admitted that legislators would exert the greatest control on the combined election and ethics board.
"That's what I thought the answer was," Stephens said during an emergency hearing Friday.
Cooper's attorneys argue in the lawsuit that the change violates the state's constitution.
"The General Assembly passed a bill that, among other things, radically changes the structure and composition of the executive agency responsible for administrating our state's election laws," the lawsuit says. "Those changes are unconstitutional because they violate the separation of powers provisions enshrined in the North Carolina Constitution by shifting control over that agency away from the governor to the General Assembly."
To bolster that argument, the attorneys cited a case decided by the state Supreme Court earlier this year in which the justices found that the legislators had overstepped their authority in trying to establish a commission to regulate coal ash. McCrory successfully sued to block that commission.
Before the special-session law, Cooper would have had the power to appoint three of the five Board of Elections members. Under the new configuration, he would get to appoint four of the board's eight members -- and two of them must be Republicans. Legislative leaders would appoint the other four members, and the entire board must split evenly between Democrats and Republicans.
Those appointees would not start until July 1. Until then, the current state Ethics Commission members would hold the seats -- a group that doesn't have much experience with election law. The state Board of Elections members who presided over 2016's contentious early voting and postelection complaints were set to end their service today; Stephens' ruling means they'll stay in charge for now.
On Friday, Berger issued a statement defending the election-board overhaul and criticizing Cooper's decision to sue.
"Given the recent weekslong uncertainty surrounding his own election, the governor-elect should understand better than anyone why North Carolinians deserve a system they can trust will settle election outcomes fairly and without the taint of partisanship," Berger said, adding that the lawsuit "may serve [Cooper's] desire to preserve his own political power, but it does not serve the best interests of our state."
Jurisdiction questioned
Noah Huffstetler, an attorney representing the state lawmakers, argued that Stephens did not have authority to temporarily block the law.
Several years ago, the Republican-led Legislature changed the process for challenging laws that are alleged to have violated the state constitution.
In such cases, the chief justice of the North Carolina Supreme Court, currently a Republican, appoints three judges to preside over the challenge. The attorneys representing state lawmakers argued that any request to halt the law while the lawsuit made its way through court should go before that three-judge panel, not Stephens.
Stephens challenged that assumption, questioning how someone could stop lawmakers who had adopted a law that might be unconstitutional and might quickly be put into effect. Stephens said he plans to inform Supreme Court Chief Justice Mark Martin about this challenge and others that Cooper plans to add to the case.
Under the new law, the election and ethics board wouldn't be able to take action with a simple majority -- six of eight members must vote in favor. If the board deadlocked, then matters could be appealed to a Wake County Superior Court judge.
Cooper's lawsuit argues that the supermajority requirement means the new board is "likely to be consistently deadlocked and unable to act" and therefore "will not be able to execute the election laws."
The lawsuit also notes that if the board can't get bipartisan agreement on early-voting schedules -- and courts decline to intervene -- then the schedules would default to the minimum number of hours allowed by law: a single site open only during weekday business hours and the Saturday before the election.
Cooper referenced that scenario in a news release Friday afternoon. "A tie on a partisan vote would accomplish what many Republicans want: making it harder for North Carolinians to vote," he said. "It will result in elections with longer lines, reduced early voting, fewer voting places, little enforcement of campaign finance laws, indecision by officials and mass confusion."
Special sessions
North Carolina lawmakers held two special General Assembly sessions this month, passing a package of laws limiting Cooper's power in several ways.
One of those laws requires Cabinet choices to be confirmed by legislators. The state constitution gives the Senate the ability to "advise and consent" to the governor's appointees by a majority vote, but that provision hadn't been used in at least several decades.
Cooper attorney Jim Phillips Jr. told Stephens that legal challenges are planned for next week against the laws diminishing the incoming governor's powers.
In one of the special sessions, legislators had planned to come together to repeal the law known as the "the bathroom bill." The legislation directs transgender people to use public bathrooms that correspond with the gender on their birth certificates and limits other protections for gay, bisexual and transgender people. But the deal to repeal it was thwarted.
Lawmakers will face elections in 2017 after a panel of federal judges ruled that Republicans unlawfully clustered black voters when drawing legislative districts, in an attempt to diminish their influence. The judges ordered North Carolina lawmakers to redraw districts by March 15 and to hold elections in November.
Cooper won the November election against McCrory by about 10,000 votes out of 4.7 million. McCrory didn't concede until a month after the election because of a protracted debate over vote-counting.
The state Republican Party and its allies filed dozens of formal complaints about alleged voter fraud. Almost all of the protests were dismissed or sidelined by election boards on which Republicans held the majority.
Separately Friday, McCrory said in an interview that he had a cordial meeting with Cooper a day earlier and showed him around the governor's mansion. The outgoing governor also complained that his administration had to work through the holidays to prepare for a handover because of Cooper's decision to be sworn in minutes after midnight Jan. 1.
Information for this article was contributed by Anne Blythe and Colin Campbell of The News & Observer and by Emery P. Dalesio and Jonathan Drew of The Associated Press.
A Section on 12/31/2016