Another Day, Another Republican Law Ruled Unconstitutional

The Republican restructuring of the NC State Board of Elections got yet another black eye yesterday at 5 p.m. when the three-judge panel ruled the whole restructuring of the SBOE and the Ethics Enforcement board unconstitutional but said it could continue to function through this election.

Open question: Will Republican leaders in the General Assembly appeal the decision? Not if they get their constitutional amendment through, which will permanently lock in stalemate with a 4-4 board of equal numbers of Republicans and Democrats. If that amendment fails, then they'll appeal.

In the meantime, it's a decision without an effect. Which sucks.

Melissa Boughten coverage:

A three-judge panel ruled the evening before early voting that Republican lawmakers unconstitutionally restructured the State Board of Elections and Ethics Enforcement after Gov. Roy Cooper was elected.

Provisions of a state law restructuring the State Board (including its executive director and chairperson) and county boards of elections violates the separation of powers clause in the Constitution by diminishing the Governor’s control over the agency, according to the 2-1 opinion released after 5 p.m. Tuesday.

Judges Jesse Caldwell III, a Democrat who presides in Gaston County and Todd Burke, a Democrat who presides in Forsyth County signed the opinion. Judge Jeffery Foster, a Republican who presides in Pitt County, wrote a dissenting opinion noting that he believed the issues were political questions and therefore nonjusticiable.

The split decision enjoins the parts of the law ruled unconstitutional but suspends that injunction until after the November election is certified so the election process can continue without interruption.

Supplemented by Will Doran's coverage in the News and Observer:

Currently the board has nine members, including four each from the Republican and Democratic parties and one person not affiliated with either party, who can break ties on politically contentious issues that come before the board.

That’s a less partisan setup than before 2016, when whichever party controlled the governor’s office also was guaranteed control of the elections board. The amendment on the ballot this November would permanently remove the ninth member of the board, leaving it with just four Republicans and four Democrats. The amendment would also remove most of the governor’s power to decide who sits on the board, giving that power to the legislature instead.