Boliek urges NC Supreme Court to reject Stein appeal in elections board case

State Auditor Dave Boliek is asking the North Carolina Supreme Court to reject Gov. Josh Stein’s request to take up a lawsuit over appointments to the state elections board. The state’s highest court has remained silent about the dispute for nearly two weeks.

Boliek took over appointment power for the State Board of Elections on May 1. His newly appointed board, shifting the balance of power from a 3-2 Democratic majority to a 3-2 Republican edge, replaced the state board’s executive director in one of its first actions on May 7.

Stein is a Democrat. Boliek and legislative leaders are Republicans.

The governor sued top lawmakers to block the section of Senate Bill 382 that shifted election board appointments to Boliek. After a split three-judge trial court panel ruled for Stein, the state Court of Appeals issued a stay blocking the trial court’s ruling on April 30.

The governor filed paperwork the same day asking the state Supreme Court for a temporary stay. Stein also asked the high court for an order called a writ of supersedeas that would block the Appeals Court’s action, along with a separate writ that would move the case to North Carolina’s highest court.

Boliek and legislative leaders responded within a day to Stein’s request for a stay. Boliek followed up Monday with a filing asking the state Supreme Court to reject Stein’s other requests.

“The Governor identifies no immediate harm, no legal error, and no compelling reason for this Court to intervene,” Boliek’s lawyers wrote. “This case arrives at this Court on the Governor’s emergency bid to unwind a stay the Court of Appeals properly entered just days ago, which allowed Senate Bill 382 to remain wholly in effect.”

“That stay preserved the unified governance structure the General Assembly enacted in December 2024 — one under which the Auditor has operated and now implemented,” the court filing continued. “The Governor asks this Court to disrupt that settled legal and operational reality in the name of a historical status quo that unquestionably no longer exists.”

“Contrary to the Governor’s assertions, the Court of Appeals’ stay preserves — not disrupts — the status quo,” Boliek’s lawyers argued. “Senate Bill 382 became law in December 2024, and the Auditor prepared to fulfill these statutory duties for months. Indeed, on May 1, the very day the law took effect, he appointed the new members to the State Board, and they were sworn in on May 7.”

The trial court’s order in the case would have created “an unprecedented hybrid never contemplated by the General Assembly: a State Board housed in the Auditor’s Office but appointed by the Governor,” Boliek’s court filing added. “This Frankenstein’s monster of judicial creation would sow confusion in election administration at a time when clarity is paramount.”

“This case presents a straightforward constitutional question: May the General Assembly transfer appointment power over the State Board of Elections from one constitutional executive branch officer to another? Unequivocally yes,” the court filing continued.

The North Carolina Supreme Court has issued no response to any of Stein’s requests during the past 12 days. The high court’s silence has allowed the state Appeals Court’s stay to remain in effect.

Stein argued on April 30 that the Appeals Court decision “poses a threat to our democracy and the rule of law.”

The order from a unanimous unnamed three-judge Appeals Court panel granted a writ of supersedeas blocking a three-judge panel’s April 23 decision in the legal dispute. The panel split 2-1 in ruling that the election administration changes spelled out in SB 382 violated the North Carolina Constitution. The trial court panel ruled that elections board appointments should remain with Stein.

That decision “is hereby stayed pending disposition of defendant-appellants’ appeal or until further order of this Court,” according to the Appeals Court order.

State Senate Leader Phil Berger, R-Rockingham, is a named defendant in Stein’s lawsuit.

“The Court of Appeals rightly affirmed what we all know: The Governor is not the sole elected executive officer in North Carolina’s government,” Berger said in a prepared statement. “Despite that, Gov. Stein is desperately grasping to keep a partisan stranglehold on the Board of Elections, instead of working to make commonsense changes to improve election administration. North Carolinians deserve to have a Board of Elections that works for them.

That’s why the General Assembly reformed the State Board of Elections last year to be under the authority of the State Auditor’s Office, which is well equipped to refocus the Board’s mission and restore trust in our elections.”

The trial court panel split 2-1 on April 23 in ruling for Stein in the elections board dispute. The Superior Court judges granted summary judgment to the governor. That effectively ended the case without a trial.

Superior Court Judges Edwin Wilson and Lori Hamilton made up the majority that ruled for Stein. Judge Andrew Womble dissented. Wilson is a Democrat. Hamilton and Womble are Republicans.

Stein’s lawsuit challenged provisions in SB 382, approved last December over then-Gov. Roy Cooper’s veto.

“Senate Bill 382 interferes with the Governor’s constitutional duties,” Wilson and Hamilton agreed. “All appointment powers for the State Board have been removed from the Governor and given to the State Auditor. And the Governor has no power to fill vacancies or remove members of the State Board, whether for lack of attendance or for cause. Likewise, with respect to the county boards, Senate Bill 382 takes from the Governor and transfers to the Auditor the power to appoint the chair of each board.”

“Thus, Senate Bill 382’s changes violate the Constitution,” the majority added.

“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,” Wilson and Hamilton wrote.

“With respect to Senate Bill 382, the Constitution prevents the legislature from unreasonably disturbing the vesting of ‘the executive power’ in the Governor or the Governor’s obligation to take care that the laws are faithfully executed,” the court order added. “Moreover, the General Assembly’s power to prescribe duties to the Council of State is constrained by the people’s understanding of the purpose of those offices when they were created.”

The majority cited the governor’s “supreme executive power.” “Council of State members aid the Governor in executing the laws, but the Governor alone wields the State’s executive authority and bears the ultimate duty of faithful execution.”

“[B]eyond reasonable doubt, Senate Bill 382 contravenes the plain text of the Constitution, constitutional history and context, and binding Supreme Court precedent by assigning to the State Auditor the sole power to supervise the administration of our state’s election laws. Senate Bill 382’s changes to those boards are thus unconstitutional and must be permanently enjoined,” the majority concluded.

Womble would have upheld the election changes spelled out in SB 382.

“The General Assembly in Senate Bill 382 reassigns the duties of the auditor, while keeping the appointment power within the Executive Branch, which is still subject to the supervision and direction of the Governor,” he wrote. “The plain text of the constitution establishes the Auditor as a member of the executive branch and authorizes the General Assembly to assign his duties.” “Thus, the decision to assign the duty of appointment of members to the Board of Elections to the Auditor is one the General Assembly was expressly authorized to make,” the dissent concluded. “As a result, the Governor cannot show that Senate Bill 382 neither [sic] impedes his ability to take care that the laws will be faithfully executed nor violates the separation of powers clause.”