RALEIGH, NC — The North Carolina Supreme Court has ruled that it will not grant expedited hearings to appeals of the results of two lawsuits filed by Democratic Gov. Roy Cooper, who has challenged new laws that have undermined his power to select members of various boards and commissions.
The state Supreme Court in orders released Friday denied requests by Republican legislative leaders sued by Cooper to hear the cases without waiting for the mid-level appeals court to first consider and rule on the arguments. The one-sentence rulings do not say how individual justices responded to the petitions seeking to bypass the cases at the high court. Cooper’s lawyers had asked the court to deny the requests.
The decisions could prolong the process leading to final rulings on whether the governance changes enacted by the GOP-controlled General Assembly in late 2023 over Cooper’s vetoes are permitted or prohibited by the state Constitution. The state Supreme Court may still seek to review the cases even after the appeals court rules. No dates have been set for oral arguments in the appeals court, and briefs are still being filed.
One lawsuit challenges a law that transfers the governor’s authority to choose members of the state and local boards of elections to the General Assembly and its leaders. A three-judge panel of trial lawyers in March changes in the electoral council rejected, They argue that they hamper a governor’s authority to ensure that elections and voting laws are “faithfully administered.”
The changes to the electoral college that were blocked were supposed to happen in January. That means the current electoral college system remains in place — for example, the governor chooses all five state council members, three of whom are held by Democrats.
Even before Friday’s rulings, the legal process made it highly unlikely that the board changes adopted by Republicans would have gone into effect in the state this election cycle with the presidential election. Still, Cooper’s lawyers wrote to the state Supreme Court that bypassing the appeals court risked “substantial harm to the ongoing administration of the 2024 elections.”
In the other lawsuit, Cooper filed a lawsuit to composition of multiple boards and committees, saying each prevented him from having sufficient control to carry out state laws. While a separate three-judge panel blocked new membership formats for two state boards that approve transportation policy and spending and select recipients of economic incentives, the new makeup of five other commissions remained intact.
Also Friday, a majority of the justices rejected Cooper’s request that Judge Phil Berger Jr. be barred from hearing the two cases. Cooper cited that the judge’s father is Senate Majority Leader Phil Berger, who is a defendant in both lawsuits along with House Speaker Tim Moore. In June, the younger Berger, a registered Republican, asked the rest of the court to rule on the recusal motions, as the court has allowed.
A majority of the justices — the other four registered Republicans — supported an order saying they did not believe the code of conduct for judges prohibited Justice Berger from participating. The elder Berger is a party to the lawsuit only in his official capacity as Senate leader, and state law requires that a person in Berger’s position be a defendant in lawsuits challenging the constitutionality of state laws, the order said.
The court’s two registered Democrats — Associate Justices Allison Riggs and Anita Earls — said the younger Berger should have recuse himself. In dissent, Riggs wrote that the code’s clear language required his recusal because of their family connection.