North Carolina appellate court OKs Republican lawmakers’ scheme to maintain GOP control of elections board

North Carolina’s second-highest court blessed a Republican power grab Wednesday, ruling that a 2024 law transferring control of the State Board of Elections from the Democratic governor to the Republican state auditor did not violate the state’s constitution.

The ruling means that the board will be able to continue its efforts to make it more difficult for North Carolinians — particularly minorities — to vote.  

In a 2-1 decision split along party lines, the North Carolina Court of Appeals held that the state’s GOP-dominated General Assembly was entirely within its right to take away the recently elected Democratic governor’s power to oversee the State Board of Elections. 

While an appeal to the state Supreme Court is likely, a different outcome is not: The GOP-dominated body has consistently ruled in favor of Republicans’ maneuvers to maintain power despite Tar Heel voters’ increasingly blue leanings.  

Wednesday’s ruling is the latest step in a long-running legal saga that began in 2023, when the General Assembly enacted a law stripping then-Governor Roy Cooper (D) of his appointment and administrative powers over the State Board of Elections. Cooper sued, arguing the law violated the North Carolina constitution’s “Take Care” clause, and a three-judge panel agreed. 

Shortly thereafter, North Carolina elected Josh Stein (D) to replace Cooper in the Governor’s mansion and Dave Boliek (R) to take over as state auditor. So the General Assembly then passed another law — over Cooper’s veto — taking away the governor’s authority over the State Board of Elections, this time giving it to the state auditor’s office.

Litigation resumed. Again, a three-judge panel found the law “unconstitutional beyond a reasonable doubt.”

Boliek and the legislature appealed, leading the North Carolina Court of Appeals to stay that finding while it deliberated. And then the North Carolina Supreme Court, in a 5-2 party-line decision, declined to lift that stay, allowing Boliek to fill the elections board with Republicans. 

Under GOP control, the state board has adopted restrictions on absentee ballots, repeatedly refused a request from students at the nation’s largest historically Black college for an early voting site, and made it easier to throw out votes — all on party-line votes. 

The Court of Appeals panel decided the complicated power-shifting scheme was constitutionally kosher Wednesday. Unlike the first power-transfer law, which gave the General Assembly control over the State Board of Elections, the new law shifted power within the executive branch, from governor to state auditor, and that made all the difference, the majority held. 

“[T]he three-judge panel erred by concluding it ‘makes no difference to the constitutional analysis’ that the duties at issue here were transferred from the Governor to the Auditor rather than the General Assembly,” they wrote. 

Unlike most states, North Carolina invests the powers of the executive branch across 10 elected offices that make up the Council of State, headed by the governor. The court held that giving another executive — the state auditor — power over the elections board did not prevent the governor from performing his constitutional duties as the state’s chief executive officer.  

The appellate court rejected the governor’s argument that the General Assembly was in effect still controlling the State Board of Elections by picking a willing partisan flunky within the Council of State to do its bidding. 

Despite the obvious partisanship evident on the board since Boliek filled it with Republican appointees, the majority credulously described it as “an apolitical entity.” Their opinion also suggested that the Democratic governors’ concerns about their constitutional duty to ensure the laws are faithfully executed were really just a desire to see their political preferences reflected by the State Board of Elections’ decisions. 

“Any Council of State member can effectively perform the nonexclusive executive branch duty to ‘take care that the laws be faithfully executed’ because policy preferences have no role in the administration of election laws,” the majority wrote. 

Writing in dissent, Judge John Arrowood chided his colleagues for ignoring the political realities around the case. “I am unpersuaded that the ‘apolitical’ design of the Boards is a meaningful or deciding factor that renders this legislation constitutional where a similar re-assignment would otherwise not be,” Arrowood wrote. “Despite its design as a bipartisan entity, actions taken by the newly constituted State Board… suggest a potential purpose for the change was to interject political interference into the manner in which elections are conducted, rather than to execute the election laws free from political influence and interference.” 

In North Carolina, judges are elected in partisan elections. In 2026, Democrats hope to retain three seats on the Court of Appeals, including Arrowood’s, and see Supreme Court Justice Anita Earls (D) re-elected.