Courts could clarify NC government’s executive, legislative power

Don’t hold your breath waiting for North Carolina’s governor and General Assembly to agree about the limits of their respective powers.

It’s natural for leaders of the executive and legislative branches of state government to compete for control. There’s even less incentive to compromise when the governor and top lawmakers align with different political parties.

It’s up to the third branch of government to settle the disputes.

Members of that branch’s highest court recently scrutinized one legal battle between Democratic Gov. Josh Stein and Republican legislative leaders.

Stein challenges lawmakers’ decision to shift State Board of Elections appointments from the governor to the state auditor. Like top lawmakers, new Auditor Dave Boliek is a Republican.

A three-judge trial court panel split 2-1 in ruling for Stein. The majority concluded that the appointment shift impaired the governor’s constitutional duty to ensure that North Carolina’s election laws are executed faithfully.

That decision arrived on April 23, little more than a week before Boliek was scheduled to announce new elections board appointments. An unnamed three-judge state Court of Appeals panel blocked the trial judges’ decision without comment on April 30.

The state Supreme Court took no action before Boliek announced his appointments on May 1. He flipped the elections board’s 3-2 partisan split from a Democratic advantage to a Republican majority.

Three weeks later, North Carolina’s highest court broke its silence in the dispute.

In an unsigned May 23 order, the state Supreme Court rejected Stein’s request to overrule appellate judges and restore the governor’s trial court victory. The high court’s five Republican justices supported the decision. The two Democrats dissented.

Declining to “decide the substantive constitutional issue,” the court majority nonetheless criticized the trial judges. Their ruling “unambiguously misapplied this Court’s precedent,” the court majority agreed.

It is “well settled” that the North Carolina Constitution splits executive power among 10 elected members of the Council of State, including Stein and Boliek. “In other words, the Governor heads the executive branch but does not unilaterally exercise the executive power,” the order explained.

Stein’s legal team has relied on court precedents since 2016 that have favored the governor in legal disputes with legislative leaders. Yet rulings in those cases “have carefully and deliberately explained” that they did not address the Council of State’s role.

The three-judge panel “mistakenly concluded” that the precedents dictated the outcome of the current legal battle, the Supreme Court majority warned. Trial judges engaged in “plain misapplication of our caselaw.”

Justice Phil Berger Jr. shared doubts about Stein’s arguments in a separate opinion.

“Here, the intra-branch transfer of the Board of Elections to the State Auditor does not appear to delegate a core function of the office of the governor; nor does the transfer of authority disable the executive branch from functioning,” Berger wrote. “Because the mere reallocation of this authority within the Council of State is expressly contemplated in the constitution, we may lack the authority to limit the legislature’s actions here.”

Justice Richard Dietz agreed with fellow Republicans in upholding the Appeals Court’s order. Yet Dietz signaled he still has unresolved questions.

The case “presents a much closer legal question than either the Governor or the General Assembly seems to think it does,” Dietz wrote. He sees “arguments on both sides.”

The trial judges “did not grasp any of this legal complexity, or any of the constitutional doctrine that underpins it,” Dietz argued. “The trial court sided entirely with the Governor’s extreme position.”

Trial judges’ reasoning was “plainly wrong,” Dietz wrote. He warned it “could create an executive-branch earthquake that forcibly reorganizes huge portions of the administrative state.”

If appellate courts adopt the trial judges’ position, Dietz wrote, the governor could gain power over elevator inspections and the State Fair, two government functions clearly assigned to other Council of State offices.

Dissenting Democratic justices offered more support for the governor’s arguments.

“The General Assembly may not grab power over enforcement of election laws by shuttling the Board between statewide elected officials until it finds one willing to do its bidding,” Justice Anita Earls wrote.

Republican justices are “rewriting precedent” in order to “upend” 125 years of status quo for the state elections board, Justice Allison Riggs added.

The May 23 order offers no final word in the elections board fight. The Appeals Court will continue to wrestle with the case in the weeks ahead.

Still, the state Supreme Court’s majority has sent a message: Recent decisions favoring the governor offer no guarantee that he will prevail over the General Assembly in court again.

Mitch Kokai is senior political analyst for the John Locke Foundation.