In State ex rel. Cooper v. Berger, No. 52PA17-2 (N.C. Jan. 26, 2018), the Supreme Court of North Carolina determined that a statute combining the North Carolina Board of Elections with the North Carolina Ethics Commission under a bipartisan, eight-member board (the “Board”) was unconstitutional due to the Governor’s inability to appoint a majority of the Board from his own political party. Not only does this decision expand upon recent separation-of-powers opinions increasing the power of the executive branch to the detriment of the legislature, but the Court’s refusal to apply the political question doctrine calls into question its efficacy in North Carolina.
At issue, pursuant to a lawsuit filed by Governor Roy Cooper, was the makeup of the Board, specifically the change from a majority of the Board of Elections being appointed from the Governor’s political party to a bipartisan eight-member Board. Gov. Cooper argued that the Board’s structure deprived him of control over it and infringed on his ability to see that the laws of North Carolina be executed. In response, the General Assembly contended that the Governor appointed the members of the Board, retained similar removal power as under prior law, and that the Board could not take any affirmative action without the vote of at least one of the appointees from the Governor’s political party.
The majority of the Supreme Court of North Carolina, in a party-line decision, relying on the Chief Justice Mark Martin’s 2016 majority opinion in State ex rel. McCrory v. Berger, held that the bipartisan makeup of the Board was unconstitutional. The Court determined that, absent the ability to appoint a majority of the Board from his political party, the Governor was left with “little control over the views and priorities” of the Board since the members of the political party opposing the Governor could, if they vote unanimously, block the implementation of the Governor’s policy preferences. Thus, the majority held that a bipartisan Board unconstitutionally infringed on the Governor’s ability to perform his core executive powers.
Chief Justice Martin, joined by Justice Barbara Jackson, argued in a dissenting opinion that the majority misapplied McCrory. Had the majority faithfully applied the prior decision, the Chief Justice argued, they would have found that the North Carolina Constitution required that the Governor have “enough control” over the Board to ensure that the laws are faithfully executed, and that “enough control” did not mean unlimited, unbridled, or even majority control. Rather, the Chief Justice argued, the constitution requires that “the Governor not be compelled to enforce laws while having little or no control over how that enforcement occurs,” a requirement that the statute at issue met by allowing the Governor to appoint half of the Board’s members from his political party.
Notably, this decision also has ramifications for the future of the political question doctrine in North Carolina. Unlike the three-judge trial court panel who initially dismissed the case as non-justiciable, the majority concluded that the political question doctrine did not necessitate dismissal of the Governor’s claim because the Governor was not challenging the powers or duties that the General Assembly assigned to the Board but, instead, was challenging a reduction in his ability to control the elections Board which, in turn, diminished his ability to ensure that the laws are faithfully executed. While they did not join the majority’s decision, Chief Justice Martin and Associate Justice Jackson did not challenge the majority’s conclusion that the issues were justiciable.
Justice Paul Newby disagreed with the majority’s assessment of the political question issue. Because the text of the constitution specifically reserved to the General Assembly the power to create and structure administrative agencies, including the power to alter the agencies, structure them as bipartisan, and house them outside of the executive branch, and that nothing in the constitution limited the ability of the General Assembly to create an independent, bipartisan Board, Justice Newby reasoned that the Court lacks the authority to intervene; the issue presents a non-justiciable political question. He concluded that the majority’s new exception to the non-justiciability doctrine completely swallowed the rule: matters are now justiciable any time a party seeks to have the Court ascertain the meaning of a constitutional provision. Justice Newby warned that this new approach to separation-of-powers claims “unavoidably sounds the death knell” of non-justiciability doctrine and signals the Court’s inevitable involvement in future power struggles, thereby undermining the public’s confidence in the judiciary to remove itself from political entanglement.
After Cooper v. Berger, it is unclear what constraints the political question doctrine places upon North Carolina’s judiciary. It is unquestioned that political power resides in the people of North Carolina, represented by their elected members of the General Assembly, who from a practical standpoint have controlled policymaking in the state throughout its history. While the North Carolina Constitution, from its first version in 1776 to the current version today, has favored a weak executive, the Supreme Court of North Carolina’s recent decisions in McCrory v. Berger and Cooper v. Berger indicate that both the Governor’s powers, and the Court’s willingness to opine on political questions, will continue to increase in the future.
John E. Branch, III is a Partner at Shanahan McDougal, PLLC. He was appointed by Gov. Pat McCrory as Chairman of the North Carolina State Ethics Commission in 2017; he served as Chairman of the Bipartisan State Board of Elections and Ethics Enforcement in 2017 until the legislation at issue in Cooper v. Berger was passed.
H. Denton Worrell is an Associate at Shanahan McDougal, PLLC.
 The Ethics Commission, unlike the Board of Elections, was bipartisan and had eight voting members.