By Mitch Kokai
Roy Cooper will leave the North Carolina governor’s office in little more than two months. But it’s likely that two legal battles pitting the Democratic governor against Republican legislative leaders will continue after Cooper exits the state’s Executive Mansion.
Those battles could shift the balance of power between future governors and leaders of North Carolina’s General Assembly.
Both conflicts are tied to lawsuits titled Cooper v. Berger. The governor serves as plaintiff. Senate Leader Phil Berger, R-Rockingham, is named as lead defendant.
One suit involves the General Assembly’s plan to shift appointment authority for seven state boards and commissions. The second focuses on lawmakers’ attempt to remake the State Board of Elections.
Rather than continue with a five-member board dominated by members of the governor’s party, lawmakers want a board split evenly between the two major parties. Legislative leaders from both parties would appoint board members. The governor makes appointments now based on recommendations from party leaders.
In both lawsuits, Cooper argues that lawmakers are violating the state constitution’s separation of powers. He claims lawmakers are encroaching on his executive authority.
North Carolina’s five living former governors all back Cooper in the appointments fight. Three are fellow Democrats. Two are Republicans.
“They seek to ensure the faithful application of North Carolina’s separation-of-powers guarantee — a foundational principle that transcends politics,” according to an Oct. 8 court filing with the state Appeals Court.
Beyond support from his predecessors, Cooper relies heavily on two North Carolina Supreme Court precedents, McCrory v. Berger from 2016 and an earlier Cooper v. Berger dispute from 2018. The McCrory case dealt with appointments to state government boards. The Cooper case addressed an earlier plan to reconfigure the state elections board.
In both cases, the state’s highest court backed the governor in separation-of-powers disputes with top lawmakers.
Yet that doesn’t guarantee another win for the governor this time around.
The only justice who participated in the 2016 and 2018 cases and remains on the state Supreme Court today is Chief Justice Paul Newby. Newby dissented from both the McCrory and earlier Cooper decisions.
“All power not expressly granted to the federal government or limited by the constitution resides in the people and is exercised through the General Assembly,” Newby wrote in his 2016 dissent. “Since our original Constitution of 1776, except for a short time by explicit limitation, the General Assembly has had the constitutional authority to provide for the filling of statutory executive positions it creates.”
“As an exercise of the General Assembly’s lawmaking power, this appointment authority, both constitutionally prescribed and jurisprudentially recognized, does not implicate separation of powers because under our jurisprudence the authority to appoint the official has never been deemed the power to control the appointee,” Newby added.
Newby cast the lone dissenting vote in the high court’s 6-1 decision in McCrory. The 2018 Cooper ruling, in contrast, produced a 4-3 party-line split in a court led by Democrats.
One of the court’s three Republicans, Newby again issued a solo dissent. He rejected his Democratic colleagues’ argument that the General Assembly could not restructure the state elections board.
“In exercising judicial power under these circumstances, this Court violates the very separation-of-powers principle it claims to protect,” he wrote. “The Court strips the General Assembly of its historic, constitutionally prescribed authority to make the laws and creates a novel and sweeping constitutional power in the office of Governor — the authority to implement personal policy preferences.”
Then-Chief Justice Mark Martin, also a Republican, had written the majority opinion in the 2016 McCrory case. Yet Martin disagreed with the 2018 court’s approach to a power struggle between the governor and lawmakers.
“The majority opinion imposes a constitutional requirement that the Governor be able to appoint a majority of the members of the Bipartisan State Board of Elections and Ethics Enforcement from his own political party. In so doing, the majority deviates from our holding” in the McCrory case, Martin wrote.
The Cooper majority “impermissibly constrains the General Assembly’s constitutional authority to determine the structure of state administrative bodies,” Martin added.
Regardless of the outcome of next month’s election, Newby will lead a state Supreme Court with a Republican majority into 2025.
There’s no guarantee that the high court will take up either current Cooper v. Berger dispute now sitting with the state Appeals Court. But if either case reaches Newby and his colleagues, they could revisit the 2016 and 2018 precedents when settling North Carolina’s latest separation-of-powers disputes.
New rulings would influence future relations between state government’s top executive and leaders of the legislative branch.
Mitch Kokai is senior political analyst for the John Locke Foundation.
