Republican attempts to control elections have left the state in chaos, but they want it that way
In 2013, upon taking control of the governorship and with supermajorities in both chambers, the North Carolina General Assembly entered into the business of statutory election interference. Since then, they have passed five laws intending to seize control over the elections processes to protect themselves. Almost all of these have been struck down by either the courts or voters.
This discord has thrown a complicated wrench into investigations into allegations of election fraud in the 9thCongressional District. A month before the November 2018 election, a three-judge panel ruled the changes Republicans made to the State Board were unconstitutional, but allowed the it to remain in place during the election and subsequent investigation.
However, as the investigation into Congressman-elect Mark Harris’ apparent election misconduct dragged on, the court ordered the board dissolved. Gov. Cooper moved to appoint an interim board, but Republicans refused to submit any nominees. As of now, even as officials uncover one of the most widespread examples of election fraud, the State Board of Elections sits in limbo, unable to fully investigate, compromise, or certify any evidence or results as a result of Republican efforts to meddle with the board.
How did we get here?
April-August 2013: H589, “VIVA/Election Reform”
VIVA, or the Voter Identification Verification Act, shortened the early vote period, prohibited extending early voting if lines are long, and ended Sunday voting and same-day registration. With these changes, more than one-third of NC counties were forced to reduce early voting hours. Then-Governor Pat McCrory said, “we didn’t shorten early voting, we compacted the calendar.”
H589 was ruled unconstitutional by the U.S. Supreme Court. SCOTUS said the law intentionally targeted African-American voters with almost “surgical precision.”
December 2016-2017: S68, “Bipartisan Board of Elections and Ethics Enforcement”
In an impressive last-minute attempt to grab power, the General Assembly gutted a school attendance bill the night before it was to come before the House Elections Committee. S68 created an eight-member board with four members from each major party and gave the governor the power to appoint those members from lists submitted by the parties themselves. Additionally, county-level boards increased to four members, with leadership alternating yearly and Republicans controlling even-numbered years when federal and statewide elections take place.
This past October, the courts ruled this board structure unconstitutional as it undermines separation of powers between the legislature and executive.
December 2016: S4, “Bi-Partisan Ethics, Elections & Court Reform”
Outgoing governor McCrory signed S4. It made major changes to the state ethics commission and board of elections by consolidating the two entities as an even-numbered body. This changed from the traditional five-person makeup with the majority favoring the party of the governor. The bill also alternated leadership of this board between the parties each year with Republicans leading in most even-numbered election years—when federal and statewide elections take place.
In March 2017, a panel of Superior Court judges ruled the merger unconstitutional.
Note: This ruling left the board vacant for most of 2017.
With traditional avenues (daytime sessions, debate, compromise) to grabbing election and ethics power exhausted, Republican leadership turned to constitutional amendment. H913 was the first draft of a constitutional amendment to consolidate legislative power included hidden language that would give the legislature authority over all boards and commissions it governs, a violation of a “fundamental” balance of power. After litigation that found the bill language to be “misleading,” the legislature passed H4, which clarified that the amendment would only apply to the State Board of Elections and Ethics.
Voters rejected this amendment by a large margin.
December 2018: H1029, “Bipartisan State Board Changes”
In light of the Harris campaign investigation, the General Assembly passed a bill mandating a new election beginning with a primary; the bill will also reconfigure the State Board of Elections and made changes to investigation methods. Gov. Cooper had problems with these changes, particularly the clause that will require campaign finance violation investigations be kept confidential.
Cooper said this clause was included to shield “wrong-doers by adding broad confidentiality requirements, limiting those who can file complaints, handcuffing investigators on how far back they can look, and requiring a reinvestigation by a second committee before evidence can be turned over to prosecutors.”
He also said he believed the State Board of Elections should decide if a primary is necessary, not the legislature. H1029 would return the board back to the 2017 model: five members, all appointed by the governor with three members of the governor’s own party. It also separates the Ethics Commission from the elections board.