Uh-oh, the GOP-friendly NC Supreme Court may let lawmakers decide elections | Opinion

It looked like a victory for democracy this week when a three-judge panel unanimously rejected a law that could upend North Carolina elections, but that good news is not the last word.

Republican legislative leaders are expected to appeal to a friendly state Supreme Court. A reversal by the high court could jeopardize fair elections in the state.

It’s not hyperbole to say so.

The law at issue, Senate Bill 749, was passed last year by the General Assembly’s Republican supermajority over a veto by Democratic Gov. Roy Cooper. Perversely, Republicans touted the bill as a change that would promote bipartisan oversight of elections. It would do the opposite.

Under current law, the governor appoints the five-member State Board of Elections from three nominees offered by his party and two offered by the opposing party. Likewise, local boards of elections have a 3-2 split in favor of the governor’s party.

The governor gets that leverage because the executive branch oversees elections. Having an uneven board makeup prevents deadlocks that would freeze that oversight. In Senate Bill 749, Republicans propose splitting the state and local boards equally between Democrats and Republicans. Cooper sued to block the law from taking effect on Jan. 1. The three-judge panel agreed to suspend the law pending its decision.

Evenly divided bipartisan boards sounds fair, but it would invite splits that would leave boards unable to act. And what happens when there’s a state or local board impasse over the conduct or results of an election? The deadlock would be broken by lawmakers, in this case Republicans entrenched in office by extreme gerrymandering.

The three-judge panel of two Republicans and one Democrat rejected the law as an unconstitutional attempt to take powers that belong to the governor.

In an earlier case, judges rejected a similar law on the same grounds. In 2018, voters also overwhelmingly voted against the change in election boards when Republican lawmakers put it on the ballot as a constitutional amendment.

Those three nails ought to be enough to seal the coffin on this ruse, but it could be reopened by the state Supreme Court’s new 5-2 Republican majority.

Indeed, Republican legislative leaders cited the high court’s recent reversal of a previous state Supreme Court ruling as supportive of Senate bill 749. In that case, the new Republican majority found that the court could not reject district maps as unconstitutional partisan gerrymanders because the legislature alone has authority over redistricting.

The three-judge panel said the state Supreme Court’s ruling did not broadly exempt the legislature’s election laws from judicial review or constitutional restraints. But the state Supreme Court’s Republican justices – a group that includes the son of the state Senate leader – have shown themselves willing to give state lawmakers that license.

If the state Supreme Court reverses the three-judge panel, it could trigger an electoral crisis. Ultimately, state lawmakers could be deciding election outcomes, including presidential elections in which North Carolina’s Electoral College votes could be decisive.

Cooper stressed that potential warping of elections when he vetoed the bill. In his veto message, he said the law “could doom our state’s elections to gridlock” and create “a grave risk that Republican legislators or courts would be empowered to change the results of an election if they don’t like the winner. That’s a serious threat to our democracy, particularly after the nation just saw a presidential candidate try to strong-arm state officials into reversing his losing election result.”

In 2017 Republican lawmakers restored partisan labels to all judicial elections, ending two decades of nonpartisan elections. Now they have the partisans they want on the state’s highest court. They may soon be coming to those justices seeking a reversal of this week’s ruling.

If they get their wish, Republicans will gain unchecked political control over elections and North Carolina could lose democracy.

Associate opinion editor Ned Barnett can be reached at 919-404-7583, or nbarnett@ newsobserver.com