Assessing the Absurdities of the Superior Court’s Board of Elections Decision

The Wake County lower court decided the General Assembly can assign duties to the State Auditor, except for some. Which ones? The court will tell you when you ask.

Two judges on the Wake County Superior Court cobbled together a legal decision that contains contradictions and, for lack of a better word, downright absurdities. They did so to ultimately conclude that the State Auditor isn’t allowed to oversee elections administration in North Carolina. Why? It’s not entirely clear. But it’s just not allowed.

Here’s some brief background.

In North Carolina, one political party has control over administering elections and counting votes. Which political party has that control is determined by which party wins the election for governor.

For reasons that are obvious, putting control of the election in the hands of one political party is not a very good idea. But that’s how it works right now.

For nearly a decade, the state legislature tried to make it so no political party has full control of the elections machinery. They offered all sorts of ways to accomplish this, and at every turn the governor sued and/or vetoed so that his party would keep power. The governor argued in court that elections administration is an inherently executive branch matter.

In the meantime, the State Board of Elections has been a partisan disaster:

• Four executive directors (who are apparently chosen by the governor’s campaign team) have resigned, including for overt partisan behavior.

• The Board was the subject of national media scrutiny for appearing to keep the Green Party off the ballot to protect Democratic candidates from vote-siphoning (the Green Party sued and won).

• And who can forget 2020, when the Board secretly “settled” a lawsuit brought by political allies, and the secret settlement changed voting laws in the middle of the election.

So finally, last year, the legislature said enough is enough. We’re done trying to find a middle ground here. We’re passing a law giving elections administration to a different executive branch official, the State Auditor. You could’ve had an equal split, Mr. Governor, but you wouldn’t take it.

The governor of course sued, and a three-judge panel of the Wake County Superior Court (the lowest level court) decided 2-1 that the governor wins. The case will almost certainly be appealed to the Court of Appeals and then, perhaps, the state Supreme Court.

About that decision

There are three parts of the Constitution that inform the outcome of this case, all contained in Article III.

The first part says this: The Governor shall take care that the laws be faithfully executed.

The second part says this: The General Assembly shall prescribe the functions, powers, and duties of the administrative departments and agencies of the State and may alter them from time to time. . .

And the third part says this, referencing the other independently-elected executive branch officials like State Auditor or Commissioner of Agriculture: Their duties shall be prescribed by law.

Those three passages can sometimes come into conflict, as they do here. On the one hand, the governor is supposed to faithfully execute the laws that the General Assembly passes.

On the other hand, the Constitution calls for other independently-elected executive branch officials and charges the General Assembly with deciding on their duties.

The General Assembly argues that it is fully within their constitutional authority to decide which administrative department or agency will be in charge of elections administration. The governor argues that only he can be in charge of elections administration because the Constitution says he must take care that laws are faithfully executed.

The court sided with the governor, writing: “Because the duty to faithfully execute the laws has been exclusively assigned to the Governor, Senate Bill 382 cannot reassign that duty to the Auditor without violating the Constitution.”

The court did not meaningfully wrestle with the other sections of the Constitution described above – the parts that tell the General Assembly to assign duties to executive branch officials, like the State Auditor.

That’s pretty wild. By the court’s logic, the governor and only the governor can decide how to execute the state’s laws. That position renders every other Council of State member subservient to the governor’s ultimate decisions.

Take, for example, the law that requires the State Auditor to “independently examine and make findings” about whether state agencies are operating efficiently. How can it be that the State Auditor can execute that law on his own, but it’s somehow unconstitutional for him to execute another law, one that tells him to administer elections?

The duty to execute the elections law is no different than the duty to execute the audit law. The legislature assigned both to the State Auditor. Either there’s a Council of State whose duties are prescribed by the legislature, or there isn’t.

The court did not address this seemingly absurd outcome. Instead, they wrote only this: “The Constitution does not permit the Auditor to be solely responsible for execution of the State’s election laws.”

Well, two judges on a lower court wishing that were true doesn’t make it so.