North Carolina S.B. 749 and S.B. 382 Challenge

Cooper v. Berger

Filed: October 17, 2023

Lawsuit filed on behalf of Gov. Roy Cooper (D) against President Pro Tempore of the North Carolina Senate Phillip Berger (R), House Speaker Timothy Moore (R) and North Carolina challenging two power grab laws, Senate Bill 749 and Senate Bill 382.

S.B. 749

S.B. 749 is a 2023 law that removes the governor’s power to appoint members to the state board of elections, granting it to the North Carolina Legislature instead. Additionally, the law requires the state board of elections to have an even number of Democrats and Republicans, departing from the current system that allows the party that holds the governor’s office (currently Democrats) to appoint a majority of state board members. The law also changes the composition of the state’s 100 county election boards to be four-member bipartisan boards appointed by lawmakers, making stalemates in decision-making more likely. The complaint argues that the new law prevents the governor from exercising his constitutional duty “to ensure that the laws are faithfully executed” as the law deprives the governor of his ability to appoint members to the state board of elections. The governor alleges that the new law violates the Separation of Powers Clause and the Faithful Execution Clause of the North Carolina Constitution and requests that the court block the implementation of the law.

On Nov. 30, 2023, a North Carolina trial court temporarily blocked multiple parts of S.B. 749 challenged by Cooper. On March 11, 2024, the court granted the governor’s motion for summary judgment and declared the law unconstitutional. On March 12, the legislative defendants appealed the decision. On Dec. 23, the North Carolina Court of Appeals granted the legislative defendants’ motion to dismiss their appeal as moot, in light of a new law that replaced S.B. 749.

S.B. 382

On Dec. 23, 2024, the governor filed a motion for leave to file a supplemental complaint challenging S.B. 382. On Dec. 11, the state legislature passed S.B. 382 — which again removes the governor’s power to appoint members to the state board of elections and transfers the authority to the elected state auditor, among other provisions. The governor claims the law acts as a replacement for S.B. 749 and similarly violates the North Carolina Constitution. He asks the court to block the implementation of the law.

STATUS: S.B. 749 remains blocked for violating the state constitution. The North Carolina governor’s motion for leave to file a supplemental complaint challenging S.B. 382 is in progress before the superior court.