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Will Gov. Pat McCrory's (R- NC) Shocking Legislative Manuveres Survive the Courts?
01/03/2017 Legislation Mark M
keywords: Legislation

A North Carolina District Court judge granted an injunction against two bills signed into law by outgoing governor Pat McCrory (R-NC), who lost in a tense, hard fought election to Democrat Roy Cooper.

One bill, SB-4, stripped many powers from the governor’s office the state’s chief executive has enjoyed for decades, like the power to appoint a majority of the members of the State Board of Elections. The law also removed the state Supreme Court’s right to hear challenges of laws on Constitutional grounds. Another bill, HB-17, takes away the governor’s right to appoint members to the state’s higher education boards.

The bills, which most observers saw as a way to limit Governor-elect Cooper’s powers when he takes office, passed the Republican controlled House and Senate with little difficulty, despite days of protest from North Carolina’s citizens.

Given that these powers altered in the new legislation are expressly given to the executive and judicial branches, a legal challenge was certain to follow. And it did.

This past week, Judge Donald Stephens of the 10th District granted a temporary injunction that dealt a blow to North Carolina’s Republicans. Stephens temporarily blocked the dissolution of the State Board of Elections, a necessary step in changing the board to meet the new requirements in the GOP bill. Stephens also blocked the law that would take power away from the State Board of Education.

Stephens said he agreed with the lawyer for the board that the powers at issue are strictly delegated to the board under the state’s Constitution. The lawyer arguing for the state – and for the legality of the new laws – said that the state legislature had the power to “transfer some” of the powers of the board to other bodies. Stephens disagreed, saying that the legislature could not by itself take away powers given to a body in the Constitution.

Stephens held the same was true for the law that took away some powers from the governor to appoint members to the Board of Elections. "Is not this board responsible for the supervision of fair elections?" Stephens asked. “If it fails to properly act to supervise and guarantee every citizen the right to vote in a fair election ... would that be a system that might be subject to a constitutional challenge?"

Stephens’ actions only serve to delay the law before a 3-person panel convenes to hear arguments on the Constitutional issue later this week. However, if past is prologue, the judges are likely to decide that the new laws are unconstitutional.

The tables were turned early in McCrory’s tenure as governor. The legislature appointed members to three commissions. Then Governor McCrory sued to stop the legislature from making appointments. His team argued that the power to appoint members to those commissions are given to the executive branch in the state’s Constitution. In McCrory v Berger, the North Carolina Supreme Court held that the legislative appointments were invalid because that power was in the executive branch.

With clear precedent, the judges appear likely to decide in Cooper’s favor. They will strike down most, if not all, of the changes made in SB 4 and HB 17.

Stephens’ decisions are the first clue on the judicial view of McCrory’s goodbye gift to his Republican colleagues. The actions of future judges may will signal one last defeat for the outgoing, controversial governor.

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