NC Appeals Court okays 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 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.”