Governor Josh Stein argued before the North Carolina Court of Appeals Tuesday that a 2024 law stripping his office of the authority to appoint members to the state board of elections violates constitutional separation of powers principles.
State Republicans passed the controversial law during the 2024 lame duck session, originally advertising it as disaster relief legislation. The measure removed the Democratic governor's long-held ability to fill seats on the North Carolina State Board of Elections, instead administratively transferring the board to the Republican state auditor's office. This change granted Auditor Dave Boliek the task of appointing members and filling vacancies.
The legal battle has created uncertainty over who controls North Carolina's election administration. A lower court initially sided with Stein, ruling in his favor. However, a panel on the state Court of Appeals stayed that ruling and allowed Boliek to take over the elections board while the appeal proceeds.
Legislative defendants Senate President Pro Tempore Phil Berger and Speaker of the House Destin Hall maintain there is no separation of powers issue with the law. Their counsel, Matthew Tilley, told the three-judge panel that the General Assembly's decision to reassign election administration does not mean the legislature controls how Boliek will handle that process.
"Under his [Stein's] understanding, the legislature could set policy at that time, yes. But there will still be a separation of power between that execution. Choosing who executes isn't even still going so far as to control execution," Tilley said Tuesday before Court of Appeals Judges Valerie Zachary, John Arrowood, and April Wood.
Tilley argued that the administration of elections is a policy decision, and the court should decline to intervene or overturn the lower court's decision. "It's a policy decision that belongs to the General Assembly to determine which council of state members gets which statutory duty," he added.
Steins's legal team counters that the law exceeds the legislature's authority and that the legislature is not allowed to reassign executive responsibilities at will. Eric Fletcher, counsel for Stein, said the change very clearly violates the separation of powers doctrine.
"If the members of the council of state are actually fungible and can be assigned any duty, then there is no separation of powers," Fletcher argued. "The legislature can assign to the members of the council of state any duty that it wants until it achieves the outcome that it wants."
Steins's position holds that the auditor's assigned responsibilities must be limited to reviewing government operations and the state's financial matters. The governor argues that if the legislature is able to freely reassign executive duties among different state officials, it undermines the constitutional framework that separates governmental powers.
The dispute highlights broader tensions over election administration and political control in North Carolina, where Republicans have sought to limit Democratic governors' authority through various legislative measures. The timing of the law's passage during a lame duck session, when outgoing legislators may pass measures before newly elected officials take office, adds another layer of political controversy to the constitutional questions at stake.
The case centers on fundamental questions about how state government operates under North Carolina's constitution. The separation of powers doctrine typically requires that executive, legislative, and judicial functions remain distinct, with each branch maintaining its designated responsibilities.
The practical implications of the dispute extend beyond constitutional theory. Control over the state elections board affects how North Carolina conducts elections, from setting policies on voting procedures to overseeing county election boards. The board plays a crucial role in election administration, including oversight of voting equipment, ballot design, and election security measures.
The Court of Appeals panel will need to weigh whether the legislature's reassignment of election board authority crosses constitutional lines or falls within its legitimate policy-making authority. The case could set important precedent for how North Carolina structures its election administration and the limits on legislative power to reorganize executive functions.
The appeals court's decision will likely face further review, regardless of the outcome, given the constitutional questions involved and the political stakes surrounding election administration. The case represents part of ongoing national debates over election governance and the respective roles of different government branches in overseeing democratic processes.