Back in December 2016, the GOP-majority legislature voted to merge the NC State Board of Elections, which oversees all voter registration and election activities, with the NC State Board of Ethics, which enforces ethics and lobbying laws.

As NC Policy Watch explained, “the State Board of Elections and Ethics Enforcement oversees elections administration in North Carolina, as well as the 100 county boards of elections, and ensures compliance with campaign finance, lobbying and ethics requirements.”

While it may sound like the merger was merely an administrative or organizational issue, at the heart is the balance of powers between branches of North Carolina’s government. Prior to Gov. Cooper’s 2017 inauguration, the Board of Elections was controlled by the executive branch, with the governor appointing five members, (inc. three from any one party) and the board’s executive director. The Governor could also appoint the chair of all county boards. After 2016, much of the governor’s powers were transferred to the already powerful legislature.

Timeline:

December  2016                                                 NC GOP passed “SB4” to merge the Election & Ethics Boards; Added a fourth member to the county boards of elections to be chosen by the legislature
January
2017
NC Superior Court blocked SB4
April   
2017
NCGOP introduced an even more partisan bill, SB68, wherein:
1. Each political party nominates six people,
2. Nominees are submitted by non-elected political party chair
3. Revoked the ability of the Secretary of State to investigate and levy fines for violating the code of ethics

Cooper vetoed SB68 as it diluted the effectiveness of a separate oversight board for ethics concerns. The NCGOP overrode the veto and then it went back to court where a 3 judge panel temporarily blocked the law.
June
2017
After a 3-judge panel reversed and dismissed the Governor’s challenge, the agency was consolidated as the “bipartisan” NC State Board of Elections and Ethics Enforcement (NCSBOE). The GOP gave partisan preference in the head of the new board a Republican in even years, when elections occur, and a Democrat in odd years when there are typically no elections which would need to be governed or protested.

January 2018
For the second time, the State Supreme Court strikes down portions of the Board of Elections re-structure on the basis that it violates the separation of powers clause and denies the Governor his ability to control state and county elections boards. However, they kept the merged Board of Elections and Ethics Enforcement in place.

March 2018
HB90 is signed into law. The school funding bill included a state board of elections provision in response to the January NC Supreme Court decision that found the NCGOP’s attempt to reconstitute the board unconstitutional.

Changes included:
1. Nine-member board that serves two-year terms.
2. Four Republicans, four Democrats and one member unaffiliated with either of those political parties.
3. The state chairs of the parties (unelected) select the candidates the governor can choose from.
4. The governor  appoints one unaffiliated member from a list of two nominees chosen by the eight-member board

June-August 2018
In anticipation of additional lawsuits regarding the structure of the BOE, the NCGOP decided to add their changes to the state constitution, by way of a constitutional amendment on the November ballot. If approved, the state courts would no longer be able to rule against them as it would become “constitutional”.

Various versions of amendments that would appear on the General Election ballot were proposed, rejected, sued over, overturned and allowed. For more information here’s a fascinating break down from Ballotpedia.

A 3 judge panel ruled in August that the ballot language regarding the BOE re-structure was misleading, and ordered it struck from the ballot. However, lawmakers just wrote a new, slightly watered down version which did not have time to be challenged in court.

August 2018
All five living former governors banded together to oppose the Amendments concerning the Board of Elections and the Judicial Vacancy appointments as they would erode the balance of powers in NC further.

The Board of Elections amendment in particular was structured to:
1. Remove the unaffiliated ninth member (creating potential for deadlocked and dismissed decisions with an even numbered board)
2. Take away the governor’s power to appoint board members and give that power to the legislature, allowing lawmakers to choose the board members who make decisions on their own elections and ethics challenges.

October 2018
A three judge panel rules yet again that the latest changes made to the Board of Elections in HB90 were unconstitutional, however recognized that the timing was too close to the upcoming midterms to make immediate changes. They ruled that after the election the BOE needed to revert to its original form of 5 members chosen by the Executive Branch. That deadline was December 3rd, 2018.

November 2018
North Carolinians voted AGAINST the “Constitutional amendment to establish an eight-member Bipartisan Board of Ethics and Elections Enforcement in the Constitution to administer ethics and elections law.”
December 2018Having lost their supermajority after the Nov. 2018 midterms, lawmakers met in a lame duck session in December to pass numerous bills while they were still able to override the Governor’s veto.

H1029: This bill was originally a transportation bill which was gutted and re-worked as a conference report in order to fast track a BOE bill through both chambers requiring only one reading to pass a final vote. Sure enough, it was introduced in committee on 12/11 and sailed through its final passage by the afternoon of 12/12/18. It is on its way to Governor Cooper today, with broad bi-partisan support surprisingly. 

This bill would dissolve the existing merged board of elections/ethics and revert back to the previous two board system – a new Board of Elections and a new State Ethics Commission.

Note: The Dec. 3rd date designated in October by the court for the BOE to revert to its original form was extended to Dec. 28th in light of the ongoing investigation into election tampering and fraud in the NC09 Congressional race. The 9 member State BOE voted unanimously to withhold certification of that election, and then voted 7-2 to investigate and hold a hearing prior to Dec. 21. In addition, the chair of the State BOE, Andy Penry, resigned to avoid the appearance of partisanship during the investigation based on prior social media posts.

Features of H1029:

The bill proposed by the NCGOP to yet again re-structure the Board of Elections and Ethics would:

  • Create two separate boards structured in a way that meets the requirements laid out by court decisions – i.e.,
    • A 5 member Board of Elections appointed by the Governor, with a majority of three people from any one political party. This board would have administrative functions only. Once appointed they would select an Executive Director.
    • An 8 member State Ethics Commission – four appointed by the Governor, (no more than two from the same political party); and four selected by the Legislature (no more than two from the same party). This board would oversee elections challenges, campaign finance and ethics complaints. An even numbered board could result in deadlocked decisions on these important issues. 
  • Move state political investigations away from the Wake Co. District Attorney’s office and into the local prosecutorial district where the candidate lives. This could be a concern considering the problems occuring in Bladen Co. and the 2018 NC09 Congressional race.
  • Keep criminal investigations confidential between the BOE and the Ethics Commission (so much for transparency). 
  • Require a new primary if the current NC09 investigation by the BOE finds a new election is warranted. No timeline provided for that yet, but taxpayers would foot the bill. Since the 2018 primary was already certified, some opponents consider this to be ex post facto, and unconstitutional. It would also allow the GOP to handpick a candidate if they deemed Harris too toxic. 
  • Postpone Voter ID legislation to Sept. 1, 2019, to avoid conflict with any 2019 special elections.
  • Require the two witnesses who sign an absentee ballot to affirm they personally know the absentee voter.
  • Return lobbying oversight to the Secretary of State’s office.
  • Board members couldn’t make or solicit political contributions, or make public political statements. This clarifies the issues which caused the resignation of the chair, Andy Penry, in Dec. 2018.
  • Board members couldn’t be appointed officials, political candidates, campaign advisers, or state employees.
  • Give more time to the General Assembly to comply with court-ordered redistricting; rather than calling a special session typically allowing 14 days to draw new maps, lawmakers could handle redistricting in a regular session if one is scheduled within 45 days of the court order.
  • Increase county election boards from four members to five, with the governor choosing the chair. Under the law in effect in 2016, local elections boards had only three members with a 2-1 partisan split.

This information was provided by excellent reporting from The Carolina Journal, WRAL, and NC Policy Watch.

What we are witnessing in North Carolina is more than just a case of partisan tug of war. It is becoming clear here, and in other states with gerrymandered supermajorities, that whenever the GOP loses in court, or wants to ensure power regardless of the results of an election, it simply writes new legislation to their liking. By the time it works its way through the judicial system the damage has been done.

We are especially concerned with the language to keep campaign finance investigations confidential, and shift them to local districts. For a party which is demanding transparency from the BOE on the vote theft and election tampering in NC09, this is hypocrisy which knows no bounds. 

Former Governor Jim Martin (R) stated, after attempts to strip even more power from the Governor through various constitutional amendments on the Nov 2018 ballot: “This is not about partisan politics. It’s about power politics, and it must be stopped…It’s embarrassing to me, after a career devoted to building a healthier, more competitive two-party system in our state, that it’s a legislature controlled by my Republican Party that has hatched this scheme.”

We agree that power politics must be stopped, and it will require engaged and informed voters along with an independent judicial system and a free press to get there. Hopefully the NCGOP is finally realizing that it’s time to work towards bi-partisan legislation, and avoid lengthy court battles in the future. 

*This post was updated Dec. 12th with information pertaining to the latest bill, H1029.