Update: Judges Keep New State Election Law Blocked

This story was updated at 6:01 p.m.

A panel of judges says a law approved by North Carolina Republican lawmakers shifting election oversight powers away from the new Democratic governor won't be enforced until Gov. Roy Cooper's lawsuit challenging those changes is resolved.

Three judges are issuing an injunction that extends a temporary block on carrying out the law that would merge the State Board of Election and the State Ethics Commission. The word came late Thursday from a court administrator writing to the lawyers in the case on behalf of the judges.

The ruling came a few hours after the judges heard oral arguments from attorneys for Cooper and Republican legislative leaders. Cooper argues the legislature went too far in giving lawmakers half of the appointments on the new combined board when it's his job to ensure election laws are faithfully executed.

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Original story continues below.

A Wake County Superior Court judge will hear arguments Thursday in a case involving a new law that prohibits Democratic Gov. Roy Cooper from making appointments to election boards. The law has not yet gone into effect because of a temporary restraining order.

Senate Bill 4 was recently passed by lawmakers during a special session.

Cooper's lawsuit claims the Republican-led General Assembly's changes to the administration of election laws are unconstitutional because they violate separation of powers.

“The governor is saying here 'if I can't control the board of elections, then I can't make sure they're doing their job. They administer a lot of statutes and they carry out a lot of legal duties and so if they get out of line, I can't do anything about it. Therefore, that keeps me from doing my job as governor,'” says Elliot Engstrom, a fellow at Elon University School of Law.

But supporters of the measure say it creates a bipartisan board with an equal number of Democrats and Republicans to enforce elections and ethics laws.

Senate leader Phil Berger (R-Rockingham) issued a statement after the lawsuit was filed.

“Given the recent weeks-long uncertainty surrounding his own election, the governor-elect should understand better than anyone why North Carolinians deserve a system they can trust will settle election outcomes fairly and without the taint of partisanship," says Berger. "Roy Cooper's effort to stop the creation of a bipartisan board with an equal number of Democrats and Republicans to enforce elections and ethics laws may serve his desire to preserve his own political power, but it does not serve the best interests of our state."

Engstrom says the the important thing to remember about a constitutional lawsuit is that General Assemblies are allowed to do things that not everyone will necessarily like.

“They're allowed to make politically calculating moves. They're allowed to do things that are unpopular or scrutinized in the press," says Engstrom.

He adds, “The question in the lawsuit is does this violate a provision in the North Carolina Constitution? In the lawsuit involving Gov. Cooper and the State Board of Elections this is a more difficult question than the other lawsuit involving the Board of Education. The reason for that is that the board of elections is actually not mentioned once in the North Carolina Constitution. It is entirely a creature of statute.”

Engstrom says a decision in the case could take a while.

“Superior Court Judge Donald Stephens this week will be considering whether to hold the application of the new law until it is heard by a three judge panel in the coming months. That three judge panel ruling will be the final decision at the trial court level on whether this law is constitutional,” says Engstrom.

Under legislation passed a few years ago, all constitutional challenges to state laws must be heard by panels of three Superior Court judges.

There's also a chance it could go before the State Supreme Court, if an appeal is filed.

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