The old Democratic-majority board now has a Republican majority. Appeals over the law’s constitutionality can continue.
RALEIGH, N.C. — A divided North Carolina Supreme Court confirmed Friday that it was OK for a new law that shifted the power to appoint State Board of Elections members away from the Democratic governor to start being enforced earlier this month, even as the law’s constitutionality is deliberated.
The Republican majority on the court declined or dismissed requests that Gov. Josh Stein made three weeks ago to block for now the enforcement of the law approved last year by the GOP-controlled General Assembly shifting authority to Republican State Auditor Dave Boliek.
In late April, some trial judges hearing Stein’s lawsuit declared the law unconstitutional and said the law couldn’t be carried out.
But on April 30 — the day before the board’s five appointments made by Boliek would otherwise begin their terms — a panel on the intermediate-level state Court of Appeals ruled the law could still be carried out while broader legal questions surrounding the power shift are reviewed on appeal.
Stein’s attorneys later that day asked the Supreme Court to intervene and keep blocking the law. But the justices didn’t weigh in publicly until now, effectively handing a legal victory to GOP legislative leaders who for years had wanted to wrest board control from Democratic governors.
Boliek went ahead and made the board appointments May 1, which shifted the board’s majority from a 3-2 Democratic majority to a similar GOP majority immediately. This upended a process going back over a century in which the governor picked the board members, three of whom are traditionally members of the governor’s party. The new board was seated and proceeded to oust Executive Director Karen Brinson Bell.
Now responding to Stein’s legal motions, the prevailing unsigned order issued Friday and backed by the court’s five registered Republicans said there were “multiple grounds” upon which the Court of Appeals panel “could have made a reasoned decision” to suspend the trial judges’ directive to block the law.
In particular, the order read, the trial judges “unambiguously misapplied” rulings from the Supreme Court in recent years that had taken no position on whether moving powers from the governor to another executive branch official — like the elected state auditor — was constitutional. Instead, the order read, the trial judges used those rulings to declare the transfer was in fact unconstitutional.
“The Court of Appeals’ ruling was not manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision,” the order said.
Associate Justice Richard Dietz, a Republican who wrote his own opinion, acknowledged that it was too late for the Supreme Court to get involved at this juncture, pointing out that the auditor has made appointments and new board staff is being hired.
“The status quo has changed,” Dietz wrote. “It would create quite a mess to try to unring that bell through our own extraordinary writ.”
Stein and the Republican legislative leaders defending the law next will argue the broader legal issues surrounding the case by going through the regular appeals process, which likely will take at least several months. Meanwhile, the new board will make its mark, carrying out campaign finance laws, setting voting administration rules and preparing for the 2026 midterm elections.
Associate Justice Anita Earls, one of the two registered Democrats on the court, blasted the GOP majority for weeks of inaction and accusing it of seemingly already siding with legislature on the broad constitutional issues over the appointments.
The other Democrat, Associate Justice Allison Riggs, pointed out in her own opinion that the Court of Appeals panel provided no reasoning in its April 30 order.
Instead, the Supreme Court majority “is rewriting precedent and creating an explanation for an unexplained Court of Appeals order in an effort to upend 125-years status quo for the North Carolina State Board of Elections while this case winds its way through the courts,” she wrote
Friday’s denials also mean that a related provision directing Boliek to choose the chairs of the 100 county election boards starting in late June also can be carried out.
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