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RALEIGH A panel of judges on Wednesday struck down a GOP plan to wrest control of North Carolina’s election boards from Democratic Gov. Josh Stein and transfer it to the Republican state auditor. In a 2-1 ruling, a Republican and Democratic judge in Wake County Superior Court agreed with Stein that the power shift, which was passed in the final days of the GOP’s veto-proof supermajority, violated the state constitution.

“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 majority opinion, authored by Judges Edwin Wilson and Lori Hamilton, says. Had it not been for the court’s intervention, newly-elected Republican State Auditor Dave Boliek would have gained control over the boards on May 1, making him the only auditor in the country with election oversight powers.

Over the last eight years, the Republican-controlled legislature has made numerous attempts to wrest control of the State Board of Elections away from the governor. All of those schemes were defeated by either courts or voters. Their latest attempt, passed as part of a sweeping power shift bill called Senate Bill 382, gave the power to appoint a majority of the board’s members to the state auditor — a position which has just been won by a Republican after Democrats held the office for 16 years. Wednesday’s ruling is a win for Democrats who, for now, will be able to retain a 3-2 majority on the State Board of Elections, as well as all 100 county boards of elections.

“The North Carolina Constitution puts the Governor in charge of executing the law,” Stein said on social media after the ruling. “That’s what the voters elected me to do, so that’s what I’ll do.”

However, Boliek quickly said in a statement he would appeal the ruling. An appeal would be heard by the state’s Republican-dominated appellate courts, which have previously backed other efforts by the legislature to expand its power.

Similarly, Senate leader Phil Berger said he’s “taking immediate steps to rectify this constitutionally corrosive and misguided ruling.”

“Two lower court judges just erroneously pronounced nine duly elected, statewide members of the executive branch nothing more than honorary figureheads,” he said in a statement.

In a dissenting opinion, Judge Andrew Womble, a Republican, argued that the legislature is the closest branch of government to the people and therefore has broad authority to assign responsibilities from the governor to a different official in the executive branch.

“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,” he wrote. “As result, the governor cannot show that Senate Bill 382 neither impedes his ability to take care that the laws will be faithfully executed nor violates the separation of powers clause.”

Lawyers for Republican legislative leaders, who defended the law in court, made similar arguments in a hearing last week. “This is obviously something that the governor does not like, but it is what our founders thought out very carefully and what they wanted as a check against the governor,” attorney Matthew Tilley said.

But judges expressed skepticism about the limits of such a power, with Hamilton, a Republican who joined Wednesday’s majority opinion, asking how the plan wasn’t a “bare-faced power grab.”

Attorney Jim Phillips, who represented Stein, noted that elections were not traditionally a power within an auditor’s purview. “For 150 years, the auditor ain’t ever had nothing to do with elections,” he said. The majority agreed, writing that while the legislature can prescribe some duties to executive officers, their power was “constrained by the people’s understanding of the purpose of those offices when they were created.”

Original article published by The News & Observer