NC Appeals Court OKs auditor appointing elections board members

The General Assembly did not violate the constitution when it transferred Board of Elections appointments from the governor to the state auditor, a split Appeals Court panel decided. 

The legislature passed a controversial law after the 2024 election transferring Board of Elections appointment power to newly elected Republican state Auditor Dave Boliek, taking that power away from Democratic Governor-elect Josh Stein.

 In the decision issued Wednesday, the Appeals Court overturned the ruling of a three-judge panel that had sided with Stein. 

Stein said in a statement he’s going to appeal.

Stein contended that the law stripping his appointment powers prevented him from performing his constitutional duty to ensure all laws are followed. 

In a majority opinion Judge April Wood wrote that the separation of powers was not violated because the legislature assigned Board of Elections duties to another member of the executive branch. 

“… We cannot hold that the reassignment of duties from the Governor to the Auditor results in a plain and clear violation of the separation of powers,” Wood wrote. “Whether the General Assembly should be allowed to reassign these duties from a public policy standpoint is not for this Court to decide.”

The board is apolitical, Wood wrote, and “should not, nor is it designed to, effectuate the policy preferences of any elected or appointed official.”

New Republican majority on the NC elections board replaces the executive director

Judge Valerie Zachary concurred. Both Wood and Zachary are Republicans. Judge John Arrowood, a Democrat, dissented. 

The appeals court had allowed the law to take effect even as the three-judge panel found portions of the law to be an unconstitutional violation of separation of powers and before the appeals court made a decision about the lawsuit’s merits.  

Boliek took control of state Board appointments and county board chair appointments. The state and county boards flipped from 3-2 Democratic majorities to 3-2 Republican majorities. 

Arrowood wrote in his dissent that enforcing election laws is a core power of the governor, requiring some control over the Board of Elections. 

The supposed apolitical design of the election boards should not be a factor in deciding that the law is constitutional, Arrowood wrote. 

When Republicans took the majority in the state board, they replaced the executive director with Sam Hayes, a former counsel to Republican House Speaker Destin Hall. Boliek hired a former N.C. Republican Party Executive Director, Dallas Woodhouse, to work with counties on early voting plans. 

Additionally, the board has eliminated Sunday early voting hours in some counties, eliminated polling places at some college campuses, and moved to make it easier to reject absentee ballots, Arrowood wrote. 

“These actions all appear to be designed to make it more difficult for citizens, who have historically voted in favor of candidates not favored by the majority of the members or the Legislature or the Auditor, to vote,” Arrowood wrote. “None of these actions appear designed to promote boards of elections free from political influence or interference.”

In a statement, Boliek said impartial and secure elections are the goal.

“Today’s ruling affirms the constitutional independence of the State Auditor’s Office,” Boliek’s statement said. “As part of the executive branch of North Carolina, we will continue to uphold the election duties prescribed to our office. Our goal remains to ensure elections in North Carolina are run impartially, effectively, and securely, and that all eligible voters have access to the voting booth. I have confidence in the State Board of Elections and our local boards of elections.”

Stein said in a statement that Boliek is politicizing election administration.

“No other state in the nation tasks the State Auditor with election administration,” Stein said.  “Republican legislators threw aside more than 100 years of historical practice in a partisan power grab that transferred the Governor’s executive power to appoint members of the State Board of Elections to a Republican State Auditor.”

Stein continued: “The Auditor is politicizing the administration of elections, appointing partisan operatives and pressuring county boards of elections to eliminate Sunday voting and early voting sites on college campuses. Voting is the fundamental right that underpins all other rights. It is how North Carolinians make sure government works for them. I will appeal today’s divided ruling and continue to protect the independence of our elections so that every North Carolinian who casts a ballot knows their vote will count.”

This report was updated at 3:35 pm to include a statement from Auditor Dave Boliek.

This report was updated at 4:50 pm to include a statement from Gov. Josh Stein.