Cooper, Stein Challenge Latest NC Elections Board Changes In Court

By Carolina Journal Staff

• Outgoing Gov. Roy Cooper and Governor-elect Josh Stein are challenging North Carolina legislative leaders’ latest plan for shifting control of appointments to the State Board of Elections. Cooper and Stein filed court documents Monday to fight provisions of Senate Bill 382.

• Court documents filed Monday seek to amend the 2023 Cooper v. Berger lawsuit. Cooper and Stein challenge provisions of the recently enacted Senate Bill 382.

• That bill would move oversight of the North Carolina State Board of Elections and control over board appointments to incoming State Auditor Dave Boliek, a Republican.

Outgoing Gov. Roy Cooper and Governor-elect Josh Stein are challenging North Carolina legislative leaders’ latest plan for shifting control of appointments to the State Board of Elections. Cooper and Stein filed court documents Monday to fight provisions of Senate Bill 382.It’s the second time Cooper and Stein, both Democrats, have gone to court to oppose a section of SB 382 endorsed by the Republican-led General Assembly. A lawsuit filed on Dec. 12 targets a plan to shift control over the appointment of the State Highway Patrol commander.

Now Cooper and Stein seek to amend Cooper’s 2023 lawsuit opposing a law to restructure state and local elections boards. The case sits in the North Carolina Court of Appeals. Legislative leaders filed paperwork Friday to end their appeal of a March ruling favoring Cooper.

That’s because SB 382 changed the targeted law. Rather than replace the existing five-member state eiections board with an eight-member group and shift board appointments to the legislature, the new arrangement would move oversight of the existing board and its appointments to the incoming state auditor, Republican Dave Boliek.

“We have had the same structure for our state board of elections for nearly a century, and it has served North Carolina well, with fair and secure elections across our state through every cycle,” Cooper said in a news release announcing the latest legal action. “These blatantly partisan efforts to give control over elections boards to a newly elected Republican will create distrust in our elections process and serve no legitimate purpose.”

“In recent years, these legislative leaders have repeatedly tried and failed to seize control of the State Board of Elections for their own partisan gain,” Stein added in the same news release. “This latest move insults the voters who rejected their power grab, violates our constitution, and must not stand.”

The proposed supplemental complaint in the existing Cooper v. Berger elections case spells out more details.

“In December 2024, while Legislative Defendants’ appeal of their trial court loss in this case was pending, Legislative Defendants tried, for the sixth time in eight years, to wrest executive authority over the State Board of Elections away from the Governor,” Cooper and Stein’s lawyers wrote.

“This time, they are trying to change a structure of gubernatorial authority that has existed for nearly 100 years by transferring the power to appoint every member of the State Board to the newly elected State Auditor of North Carolina, a Republican. They have done so not because the State Auditor has any expertise or knowledge of election law or election administration,” the court filing continued.

“Indeed, the State Auditor has never had any role in North Carolina elections; it appears that North Carolina is the only state that commits elections administration to the State Auditor,” Cooper and Stein’s complaint argued. “The State Auditor’s only qualification for this newly assigned role is obvious — he’s a Republican with demonstrated fealty to Legislative Defendants.”

“This blatantly partisan restructuring of the State Board is — once again — unconstitutional. It will undermine confidence in elections, and it contravenes the democratic principles on which our State government rests. It cannot stand,” the governor and governor-elect added.

The state Court of Appeals was slated to hear arguments in the Cooper v. Berger elections board case before lawmakers filed a motion to drop their appeal. A unanimous three-judge Superior Court panel ruled in Cooper’s favor in March. All five living former North Carolina governors filed a brief in October supporting Cooper.

Now lawmakers argue that the case no longer needs to proceed at the state’s second-highest court. SB 382, approved on Dec. 11 over Cooper’s veto, shifts authority for the elections board to Boliek, who won the auditor’s job in the November election.

SB 382 repealed the portion of the 2023 state law that prompted the original Cooper v. Berger lawsuit. The repeal “moots further review of the litigation concerning that Session Law’s constitutionality,” according to a motion legislative leaders filed Friday. “Based on mootness, Defendants seek leave to withdraw their appeal or otherwise have it dismissed.”