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Unaffiliated voters adopt wait-and-see approach in federal elections board suit



Unaffiliated voters are hitting the pause button on their federal lawsuit challenging the composition of North Carolina’s State Board of Elections. A court filing Friday indicates the suit will not proceed until state courts resolve a separate suit pitting the governor against state legislative leaders.


Friday’s motion to stay proceedings marked the first activity since June in the federal case titled Common Cause v. Moore. Unaffiliated voters working with the left-of-center activist group challenge state law that limits participation on the state elections board to Democrats and Republicans.


The plaintiffs filed suit against state legislative leaders in August 2022. An amended complaint filed in February 2023 added Cooper as a defendant. The case generated no courtroom activity from June 2023 until this week.


Now the plaintiffs are responding to Cooper v. Berger, a lawsuit challenging recent changes to the elections board.


“During the pendency of this action, the General Assembly passed Senate Bill 749 … and overrode the Governor’s veto,” Common Cause’s lawyers wrote. “The law would make significant changes to N.C. Gen. Stat § 163-19, including removing the Governor’s authority to appoint the five members to the State Board of Elections. Consequently, Governor Cooper filed suit in Wake County Superior Court.”


A three-judge panel granted Cooper an injunction against SB 749 on Nov. 30. Final action in that case “will likely have an impact over issues in this action,” according to Friday’s federal court filing.


“To avoid wasting judicial resources, Plaintiffs request a stay of this matter until final determination of Cooper v. Berger, et al. and upon their request that the stay may be lifted,” Common Cause’s lawyers wrote.


No timetable has been set for resolving Cooper v. Berger. The three-judge panel expressed interest in holding a trial early this year.


Five individual voters are working with Common Cause in the federal case. They responded last spring to Cooper’s motion to dismiss their lawsuit.


“In this case, plaintiffs seek a declaration that North Carolina’s law rendering more than 2.5 million citizens ineligible for appointment to the State Board of Elections … violates the First and Fourteenth Amendments,” wrote attorneys Edwin Speas and Michael Crowell in a brief filed on May 30. “Plaintiffs do not seek a court order appointing them to the State Board; they only seek an order making them and every other unaffiliated voter in North Carolina eligible for appointment to the State Board.”


“Nor do they seek an order that forces the Governor to appoint anyone who does not share his policy views — an order that would violate the separation of powers principles recognized and reiterated in Cooper v. Berger,” a 2018 N.C. Supreme Court case.  “All parties agree that the Governor is entitled to appoint a majority of members to the State Board who share his ‘views and priorities.’ Plaintiffs do not seek to change that well-settled principle. Instead, plaintiffs simply seek removal of the statutory ban which prohibits the Governor from appointing anyone but Democrats or Republicans to the State Board.”


The governor’s arguments relied on the wrong legal standard, Speas and Crowell argued. “The Governor tries to ignore the overriding fact that this case is about voting, despite the unsettling proof in the last few years that election boards determine who gets to vote, who gets to run for office, and whose votes count,” they wrote.


“There is no compelling interest to justify the exclusion of unaffiliated voters from the State Board,” Speas and Crowell wrote. “The Governor’s interest in maintaining control over the policy views of the State Board does not justify the burden.”


“Even if the ban were invalidated, the Governor would still be entitled to appoint individuals who share his policy views,” the brief continued. “He can ensure that the policies of his administration are carried out by his appointees. The separation-of-powers principles enunciated by the North Carolina Supreme Court in Cooper v. Berger would remain intact.”


The unaffiliated voters rejected arguments related to the “stability of the two-party system.”


“Preservation of the two-party monopoly over election administration in North Carolina is not justified when it comes at the expense of an outright ban on unaffiliated voters,” Speas and Crowell wrote. “Nor can it logically be argued that voter confidence is enhanced by excluding the largest share of voters in the state simply because they choose not to affiliate with the two major political parties.”


The brief emphasized the elections board’s judicial function. “Independence, not political allegiance, is required for a State Board that investigates election misconduct, holds evidentiary hearings, and decides judicially whether new elections should be ordered,” Speas and Crowell wrote.


“[I]f unaffiliated voters were treated like a third party they would have passed the point of deserving recognition — and representation on the State Board — many years ago,” the brief added.


Cooper, a Democrat, filed a motion to dismiss the unaffiliated voters’ lawsuit on May 9, roughly two months after Republican legislative leaders made the same request.


“Plaintiffs seek a declaration that the law violates their First Amendment and Equal Protection rights and assert that the law unconstitutionally prohibits unaffiliated voters from being appointed to the Board. … However, Plaintiffs lack standing to sue. Moreover, even if they do have standing, Plaintiffs have not sufficiently alleged that Section 163-19 is unconstitutional,” according to a brief from sate Justice Department lawyers representing Cooper.


“Indeed, Plaintiffs as a matter of law cannot demonstrate that Section 163-19 violatesthe First Amendment because Board positions are related to political interests, and partisanaffiliation is an appropriate requirement for the position,” Cooper’s brief added. “Furthermore, Section 163-19 does not discriminate against a protected class and is rationally related to a legitimate state interest. Accordingly, this Court should grant Governor Cooper’s motion to dismiss.”

Republican legislative leaders made their own arguments against the lawsuit in March.


“Plaintiffs argue that by not allowing unaffiliated voters to serve on the State Board, their First Amendment and Equal Protection rights are violated. However, these Plaintiffs lack standing to bring those claims. And Defendants, members of the legislative branch, who enact but do not enforce laws, are immune from suit for such claims in federal court,” wrote attorney Martin Warf, representing the top officers in the N.C. House and Senate.


“Even if Plaintiffs could overcome these issues, the federal constitution does not support such associational claims, and, these claims run headlong into the North Carolina Constitution, which has been interpreted by North Carolina courts to require that the Governor be able to control the SBOE,” Warf added. “Counterbalancing one major party’s views and priorities on the Board with that of the other major party’s views, therefore, is a rational approach to election administration adopted by numerous other states.”

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