Friday, December 28, 2018

How Did We Get To This Point With The NC State Board of Elections?

With yesterday's news (I'm afraid to call it a bombshell because North Carolina's political landscape is littered with craters nowadays of exploding news), I took to twitter to try and give an overview sense of how we ended up with the North Carolina State Board of Elections and Ethics Enforcement going out of business at noon on Friday, December 28, with the continuing investigation into the North Carolina Ninth Congressional District election controversy.

So, here's hopefully a recap of that tweet thread for folks looking for a "plain English" version of how we got to this point, with links to various stories that help to support the time line and the controversy over the NC State Board of Elections. 

December, 2016: Political Power Plays Proceed

Following a bitter gubernatorial campaign where incumbent Republican Pat McCrory is defeated by Democrat Roy Cooper, the Republican North Carolina General Assembly holds a series of special sessions before the new Democratic governor comes into office. As part of the action, the Republicans propose legislation to change the power of gubernatorial appointments to certain state boards and commissions, most notably the State Board of Elections.

The State Board of Elections, at that time, was a five member board made up of three members of the governor's party and two members of the opposition political party. With a new governor coming in, the board would switch from 3-2 Republican control to 3-2 Democratic control, with the governor having the power to appoint the five members based on recommendations from the chairs of the two political parties. 

The December 2016 legislation would have changed the five member board to an eight member board, made up evenly of Democrats and Republicans, to oversee the administration of elections and ethics enforcement. Ultimately, the Republican-controlled legislature, with the lame-duck Republican governor, passed the sweeping measures to impact the incoming Democratic governor's power and authority, especially over appointments to the new State Board of Elections & Ethics. 

When Roy Cooper assumed office, he filed suit over the creation of the board and various other aspects that the legislature had enacted that infringed upon the governor's power. In early January 2018, a judge put a temporary restraining order on the new board, while a full hearing was held on the matter. 

March, 2017: The Courts Intervene

Three months into his new term in office, Democratic Governor Roy Cooper won partial decision regarding the new Elections Board and Ethics Commission, when a three-judge panel held the creation of the board unconstitutional. However, the panel did uphold the constitutionality of the state senate to confirm gubernatorial cabinet appointments. In the end, as it related to the elections and ethics board, the issue returned to, what form, and how has power, over the election and ethics administration in the state?

In April, 2017, the Republican legislature, with super-majority numbers, returned to legislate a second version of the eight-member State Board of Elections and Ethics Enforcement. Again, Governor Cooper vetoed the legislation, and the legislature, with Republican super-majorities, overrode the veto. 

Again, Governor Cooper sues over the legislation, and the case ends up back before the three-judge panel, which rules that this second version of a State Elections Board is constitutional, with the necessary revisions from the first version passing constitutional approval. 

After the NC State Supreme Court asked the three-judges to revisit their ruling, the panel issued an opinion in October, 2017, saying that the issue has become a "political question" that the courts would not insert themselves into, between the governor and the legislature. 

January, 2018: Strike 1. Strike 2. Now a Third Version of the State Board of Elections.

Governor Cooper appeals the 3-judge panel's decision to the state's highest court, and in a 4-3 decision along party lines, the NC State Supreme Court strikes down the second version of the eight-member board and sides with the governor in declaring that structure unconstitutional in January

Following this second attempt, the legislature returned back to the issue and created a nine-member board, with 4 Democrats, 4 Republicans, and 1 unaffiliated registered voter making up the third version of a State Board of Elections and Ethics Enforcement, tucked into a bill dealing with classroom sizes. 

In March, the governor announced his decisions to appoint individuals to the new 9-member board, while also continuing to challenge the board and its constitutionality. 

So, for the 2018 mid-term election cycle, the third version of the State Board of Elections and Ethics Enforcement has been in power. But that didn't mean that the legal wrangling over the board by the governor and the legislature had lessened any.

In the summer of 2018, the three-judge panel reviewed the third version of the State Board of Elections, while at the same time, the Republican legislature proposed a constitutional amendment to conceivably put an end to the legal back-and-forth between the two branches of government. 

October, 2018: The October Surprise

In a divided ruling, the three judge panel handed down another strike against the 9-member State Board of Elections and Ethics Enforcement, weeks before the November general election. 

But to avoid any pending chaos before the general election, the panel put a stay on the disbanding of the third version of the state board until after the November election, the certification of the election results, and the outcome of the proposed constitutional amendment regarding the state board of elections.

In November, the voters rejected the constitutional amendment to solidify the third version of the state board of elections. 

And while everyone thought the election results would be certified and the three-judge panel's ruling would go into effect, little did folks know what kind of bombshell (again) would hit the Ninth Congressional District in the Old North State.

November 27, 2018: When Things Getting Really Interesting And Messy

In what was suppose to be an otherwise bureaucratic and procedural meeting, the 9-member State Board of Elections and Ethics Enforcement announced they were not certifying the closely-contested Ninth Congressional District race between Republican Mark Harris and Democrat Dan McCready, with unofficial results indicating only a 905 vote margin for the Republican. Needless to say, this issue deserves another blog post with all the controversies surrounding it, but I did write two blog posts on the points of contention regarding absentee by mail ballots in the 9th. 

This Ninth District controversy set off a chain of events that layered on top of the chaos regarding the operation of the State Board of Elections that had everyone unsure of where things were going. 

The Friday following the Nov. 27 announcement, the 9-member State Board announced they would not certify the Ninth Congressional District election and would open up an investigation, with a deadline of December 21, regarding allegations of fraud in the election's absentee by mail balloting. 

In between the Nov. 27 announcement and the December 1 non-certification, the three-judge panel gave an extension to the current State Board of Elections until December 12th. 

On December 14, the State Board of Elections announced a hearing into the 9th Congressional District, set for January 11. And in the midst of all of this, the chairman of the State Board of Elections resigns

That seemed too far and too long for the three-judge panel, who said that the current Board of Elections would cease operations as of noon on Friday, December 28. 

In the midst of the 9th Congressional District investigation and the current 9-member board, the state legislature, meeting in a lame-duck session after the election, passed legislation returning the state board of elections to a separate board, with the same structure prior to the December 2016 machinations that began the controversies.

Governor Cooper, objecting to a provision within the new legislation regarding campaign finance investigations, vetoed this 'back to the future' version of the state board, with the legislature promptly overriding his veto yet again. 

So, as of Friday, December 28, at noon, the 9-member State Board of Elections ceased operations, with Governor Cooper announcing that he would appoint a temporary Board of Elections to continue the operations and investigation for the Ninth Congressional District, while a leading NC State House Republican calling that the governor has "no authority" for such an interim board action.