IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-652
Filed 16 September 2026
Wake County, No. 23CV029308-910
JOSHUA H. STEIN, in his official capacity as GOVERNOR OF THE STATE OF
NORTH CAROLINA, Plaintiff,
v.
DESTIN C. HALL, in his official capacity as SPEAKER OF THE NORTH CAROLINA
HOUSE OF REPRESENTATIVES; and PHILIP E. BERGER, in his official capacity
as PRESIDENT PRO TEMPORE OF THE NORTH CAROLINA SENATE,
Defendants,
and
DAVE BOLIEK, in his official capacity as NORTH CAROLINA STATE AUDITOR,
Intervenor-Defendant.
Appeal by Defendants from order entered 23 April 2025 by Judges Edwin G.
Wilson, Jr., Lori I. Hamilton, and R. Andrew Womble in Wake County Superior
Court. Heard in the Court of Appeals 10 February 2026.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Daniel F.E. Smith,
Jim W. Phillips, Jr., and Eric F. Fletcher; and Wilmer Cutler Pickering Hale &
Dorr LLP, by W. Swain Wood, for Plaintiff-Appellee.
Womble Bond Dickinson (US) LLP, by Matthew F. Tilley, Michael A. Ingersoll,
and Emmett Whelan; Nelson Mullins Riley & Scarborough, LLP, by Noah H.
Huffstetler, III, and D. Martin Warf, for Defendants-Appellants.
Ward & Smith, P.A., by Alexander C. Dale, and Mark S. Wigley, for IntervenorDefendant-Appellant.
WOOD, Judge.
STEIN V. HALL
Opinion of the Court
Destin C. Hall, in his official capacity as Speaker of the House of
Representatives and Philip E. Berger, in his official capacity as President Pro
Tempore of the North Carolina Senate (collectively “Legislative Defendants”), along
with Dave Boliek, in his official capacity as North Carolina State Auditor (“Auditor”
or collectively with Legislative Defendants, “Defendants”) appeal from the order
entered on 23 April 2025 by a divided three-judge superior court panel (the “threejudge panel”). The order granted Joshua H. Stein’s (“Governor”), in his official
capacity as Governor of the State of North Carolina, motion for summary judgment;
denied the Governor’s motion for a temporary restraining order and preliminary
injunction as moot; denied Legislative Defendants’ motion for summary judgment;
and declared Sections 3A.3.(b), (c), (d), (f), (g), and (h) of Session Law 2024-57
unconstitutional.
I. Factual and Procedural Background
The North Carolina State Board of Elections (“State Board”) is responsible for
the enforcement of laws governing elections, campaign finance, lobbying, and ethics
and has the “authority to make such reasonable rules and regulations with respect to
the conduct of primaries and elections as it may deem advisable . . . .” N.C. Gen. Stat.
§ 163-22 (Powers and duties of State Board of Elections). The State Board also
advises and monitors for compliance the state’s county boards of election (“County
Boards”). N.C. Gen. Stat. § 163-22(e).
The North Carolina General Assembly (“General Assembly”) created the first
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Opinion of the Court
State Board in 1899; all members of the State Board were appointed by the General
Assembly. See An Act to Regulate Elections, ch. 507, § 4, 1899 Sess. Laws 659. In
1901, the General Assembly transferred to the Governor the duty to appoint all
members to the State Board. See An Act to Provide for the Holding of Elections in
North Carolina, ch. 89, § 5, 1901 Sess. Laws 244. Since 1901, the Governor has
retained the duty to appoint all members to the State Board. Additionally, the
Governor has appointed the chair of each County Board since 2018.
On 10 October 2023, the General Assembly succeeded in its efforts to override
Former Governor Roy Cooper’s (“Governor Cooper”) veto and enacted Session Law
2023-139 (“SB 749”) which transferred the State Board “administratively to the
Department of the Secretary of State.” Further, SB 749 increased the number of
State Board members from five to eight and transferred the duty to appoint all
members of the State Board from the Governor to the General Assembly. On 17
October 2023, Governor Cooper filed a complaint alleging that the changes to the
State Board within SB 749 were unconstitutional. On 6 November 2023, Governor
Cooper filed a motion for a temporary restraining order to prevent the challenged
portions of SB 749 from going into effect on 1 January 2024.
On 8 November 2023, the matter was transferred to a three-judge panel in the
Superior Court of Wake County as required when there is a facial challenge to the
validity of an act of the General Assembly. The three-judge panel granted the motion
for preliminary injunction; the legislative defendants filed an answer and motion to
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Opinion of the Court
dismiss for lack of subject matter jurisdiction and for failure to state a claim; and the
three-judge panel entered a case management order.
On 9 February 2024, the legislative defendants filed a motion to dismiss and,
alternatively, motion for judgment on the pleadings pursuant to North Carolina
Rules of Civil Procedure 12(b)(1) and 12(c) asserting that Governor Cooper’s claims
are political questions and nonjusticiable, thus, the three-judge panel should dismiss
for lack of subject matter jurisdiction. On 9 February 2024, Governor Cooper filed a
motion for summary judgment pursuant to Rule 56.
On 11 March 2024, the three-judge panel1 granted Governor Cooper’s motion
for summary judgment and denied the legislative defendants’ motion to dismiss and
motion for judgment on the pleadings. The three-judge panel determined Governor
Cooper’s claim to be justiciable as a matter of law and found a separation of powers
issue to exist which Cooper I controlled. See generally Cooper v. Berger (Cooper I), 370
N.C. 392, 809 S.E.2d 98 (2018); State ex rel. McCrory v. Berger (McCrory), 368 N.C.
633, 781 S.E.2d 256 (2016). The three-judge panel concluded in part:
12. Because the State Board and County Boards exercise
executive functions, the question becomes whether the
Governor, under the Session Law, has sufficient control.
Again, Cooper I is controlling. Our Supreme Court has
held that “Article III, Section 5(4) of the North Carolina
Constitution requires ‘the Governor to have enough control
over’ commissions or boards that ‘are primarily
administrative or executive in character’ ‘to perform his or
her constitutional duty,” Cooper I, 370 N.C. at 414, 809
1 Judges Edwin Wilson, Lori Hamilton, and Andrew Womble.
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Opinion of the Court
S.E.2d at 111 (quoting McCrory, 368 N.C. at 645-46, 781
S.E.2d at 256). The degree of control depends on the ability
to appoint members, supervise their activities, and remove
them from office. Id.
13. The constitutional provision “also contemplates that
the Governor will have the ability to affirmatively
implement the policy decisions that executive branch
agencies subject to his or her control are allowed, through
delegation from the General Assembly, to make as well.”
Cooper I, 370 N.C. at 415, 809 S.E.2d at 112.
14. Without explicitly defining “control,” it is still clear that
the Session Law infringes upon the Governor’s
constitutional duties. First, all appointment powers were
removed from the Governor and given to the General
Assembly for the State Board and the County Boards.
Second, Defendants have the final decision on the Chair
and Executive Director of the State Board if the members
are unable to reach a majority decision. Similarly, if the
County Board members cannot reach a decision on their
Chair, the General Assembly selects the Chair. Finally,
the Governor has no power to remove members of the State
Board and County Boards, whether for lack of attendance
or for cause. Cooper I, 370 N.C. at 416, 809 S.E.2d at 112-13 (concluding the statute at issue left the Governor with
little control over the Board because, in part, it
“significantly constrain[ed] the Governor’s ability to
remove members”). Defendants’ actions are the most stark
and blatant removal of appointment power from the
Governor since McCrory and Cooper I. Cooper I and
McCrory control, and the Session Law must be
permanently enjoined.
On 5 November 2024, Democratic candidate Joshua H. Stein won the North
Carolina Governor election and Republican candidate David Boliek won the North
Carolina Auditor election.
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Opinion of the Court
While the appeal of SB 749 was still pending, Senate Bill 382 (“SB 382”) was
introduced on 19 November 2024 and passed in both chambers of the General
Assembly before being presented to the Governor. Governor Cooper vetoed SB 382
on 26 November 2024. The Governor’s veto was overridden by a Republican supermajority vote on 11 December 2024.
SB 382, in relevant part, transferred the State Board administratively from an
independent agency under the Governor to the Department of the State Auditor;
relieved the Governor entirely of his duty to appoint and remove State and County
Board members; assigned all of the Governor’s former appointment duties to the
Auditor along with the duty to fill vacancies or remove members who fail to attend
meetings; and assigned the Auditor to direct and supervise the budgeting functions
of the State Board. S.B. 382 Sec. 3A.1-3A.3 of S.L. 2024-57, Legis. Analysis Div., N.C.
Gen. Assemb., Reg. Sess., at 2 (9 Jan. 2025). SB 382 effectively repealed the
challenged and enjoined portions of SB 749.
On 28 January 2025, the parties2 jointly moved for an order vacating the 11
March 2024 final judgment pursuant to Rule 60 to “permit supplemental amendment
of [Governor Cooper’s] complaint pursuant to Rule 15(d), as requested in [Governor
Cooper’s] 23 December 2024 motion; and to establish a briefing schedule for
2 Now the named parties to the case: Governor Joshua H. Stein, in his official capacity as
Governor of the State of North Carolina, Plaintiff, vs. Destin C. Hall, in his official capacity as Speaker of the House of North Carolina House of Representatives; and Philip E. Berger, in his official capacity as President Pro Tempore of the North Carolina Senate, Defendants.
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Opinion of the Court
dispositive motions on [Governor Cooper’s] supplemental complaint.” That same day,
the Governor filed a notice of voluntary dismissal without prejudice.
On 11 February 2025, the three-judge panel filed an amended consent order
granting the joint motion to vacate the 11 March 2024 final judgment. That same
day, the Governor filed a supplemental complaint pursuant to Rules 15(d) and 19,
seeking a declaratory judgment and preliminary and permanent injunctions
challenging Sections 3A.3.(b), (c), (d), (f), (g), and (h) of SB 382. Notably, the Governor
has not challenged the administrative move of the State Board to the Department of
the Auditor nor that the budgeting functions shall be performed under the
supervision and direction of the Auditor.
On 25 February 2025, Legislative Defendants filed their answer to the
Governor’s supplemental complaint and asserted that the Governor’s claim should be
dismissed pursuant to Rule 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction
and for failure to state a claim upon which relief may be granted.
On 25 February 2025, Legislative Defendants filed a motion for summary
judgment pursuant to Rule 56 on all claims raised in the supplemental complaint.
On 26 February 2025, the Governor filed a motion for summary judgment as to the
supplemental complaint pursuant to Rule 56. On 6 March 2025, the Auditor filed a
motion and memorandum in support of his motion to permissively intervene as a
defendant and subsequently filed his proposed answer to the Governor’s
supplemental complaint.
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Opinion of the Court
On 7 March 2025, the trial court entered an order transferring the matter to a
three-judge panel. On 11 March 2025, the three-judge panel filed a consent order
allowing the Auditor to permissively intervene under Rule 24(b). On 14 March 2025,
the Governor filed a motion for temporary restraining order and preliminary
injunction. The matter came on for hearing on 14 April 2025.
On 23 April 2025, the three-judge panel filed its order granting the Governor’s
motion for summary judgment, denying Legislative Defendants’ motion for summary
judgment, and denying as moot the Governor’s motion for temporary restraining
order and preliminary injunction. On 24 April 2025, Legislative Defendants filed a
motion to stay the 23 April 2025 order while their appeal was pending. That same
day, Legislative Defendants filed notice of appeal of the 23 April 2025 order; the
Auditor filed notice of appeal two days later. On 28 April 2025, the three-judge panel
denied Legislative Defendants’ motion for an appellate stay.
On 12 May 2025, this Court entered an order allowing the petition for writ of
supersedeas and motion for temporary stay filed by Legislative Defendants. The
order stayed the matter until further order by this Court; therefore, SB 382 took effect
notwithstanding the three-judge panel having found the challenged portions of SB
382 unconstitutional. The Governor appealed this Court’s order to our Supreme
Court which on 21 May 2025 filed an order concluding this Court did not abuse its
discretion. See Stein v. Berger (Stein Stay Order), 387 N.C. 575, 915 S.E.2d 146 (2025).
The order from our Supreme Court concluded:
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Opinion of the Court
The constitutionality of [SB 382] remains vigorously
contested. Given that defendants have already exercised
their appeal as of right to the Court of Appeals—and that
the outcome of their appeal is still pending—the threejudge panel will not have the final say on the law’s
enforceability. Accordingly, the Court of Appeals’ ruling
was not manifestly unsupported by reason or so arbitrary
that it could not have been the result of a reasoned
decision.
The Governor’s Petition for Writ of Supersedeas and
Petition for Writ of Certiorari are denied, and his Motion
for Temporary Stay is dismissed as moot.
Id. at 579, 915 S.E.2d at 149. The vigorously contested question regarding the
constitutionality of SB 382/ Session Law 2024-57 is now before this Court.
II. Analysis
The case before us presents a matter of first impression regarding the General
Assembly’s ability to reassign certain duties prescribed by law among Council of State
members within the executive branch. N.C. Const. art. III, § 7(2). Legislative
Defendants argue the three-judge panel erred by declaring the challenged sections of
SB 382 unconstitutional because: SB 382 represents “a legitimate exercise of the
General Assembly’s express and plenary power to structure agencies of State
government and assign duties to the ‘other elective officers’ who serve as members of
the Council of State”; our constitution expressly authorizes the General Assembly to
distribute duties among the members of the executive branch; the cases McCrory,
Cooper I, and Cooper Confirmation are inapposite to the issue presented; SB 382 does
not interfere with the Governor’s constitutional duties; and the Governor’s challenge
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Opinion of the Court
to SB 382 is nonjusticiable. See generally McCrory, 368 N.C. 633, 781 S.E.2d 256;
Cooper I, 370 N.C. 392, 809 S.E.2d 98; Cooper v. Berger (Cooper Confirmation), 371
N.C. 799, 822 S.E.2d 286 (2018). The Auditor further supports Legislative
Defendants’ arguments by contending that our constitution’s reorganization clause
“expressly permits this kind of intra-executive branch restructuring—full stop,” and
that regardless, the reorganization clause of Article III, § 5(10) renders the Governor’s
challenge to SB 382 nonjusticiable.
In contrast, the Governor argues the three-judge panel did not err by declaring
the challenged sections of SB 382 unconstitutional because a violation of the
separation of powers clause occurs not only when “one branch exercises power that
the constitution vests exclusively in another branch,” but also equally forbids “one
branch from ‘prevent[ing] another branch from performing its constitutional duties.’”
McCrory, 368 N.C. at 645, 781 S.E.2d at 256. By enacting SB 382, the Governor
asserts that the General Assembly has prevented him from performing his
constitutional duties, i.e., ensuring the State Board faithfully executes the law. After
a careful review of the record and applicable law, we conclude the Governor has
presented a justiciable question of law, and the General Assembly has not violated
the separation of powers.
A. Standard of Review
This Court reviews an order granting or denying summary judgment
containing constitutional arguments de novo, considering the matter anew and freely
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Opinion of the Court
substituting its own judgment for that of the lower court. Stein v. Berger (Stein
Commissions), __ N.C. App. __, __, 923 S.E.2d 579, 584 (2025). In our review, we
must “presum[e] that legislation is constitutional and that a constitutional limitation
on the General Assembly must be explicit in the text and demonstrated beyond a
reasonable doubt.” McKinney v. Goins, 387 N.C. 35, 42, 911 S.E.2d 1, 7 (2025) (citing
Harper v. Hall, 384 N.C. 292, 323-24, 886 S.E.2d 393, 414 (2023)). “[W]e will not
declare a law invalid unless we determine that it is unconstitutional beyond a
reasonable doubt.” Stein Commissions, __ N.C. App. at __, 923 S.E.2d at 584 (quoting
McCrory, 368 N.C. at 639, 781 S.E.2d at 252).
The Governor, as the challenging party, “bears the burden of overcoming our
presumption of validity.” McKinney, 387 N.C. at 44, 911 S.E.2d at 9. “[A] claim that
a law is unconstitutional must surmount the high bar imposed by the presumption of
constitutionality and meet the highest quantum of proof, a showing that the statute
is unconstitutional beyond a reasonable doubt.” Harper, 384 N.C. at 324, 886 S.E.2d
at 414-15. For an act to be unconstitutional beyond a reasonable doubt, “the
constitutional violation must be plain and clear. To determine whether the violation
is plain and clear, we look to the text of the constitution, the historical context in
which the people of North Carolina adopted the applicable constitutional provision,
and our precedents.” McCrory, 368 N.C. at 639, 781 S.E.2d at 252. Therefore, if the
Governor here has “fail[ed] to meet his burden beyond a reasonable doubt, ‘we must
uphold the statute regardless of whether we agree with the General Assembly’s public
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Opinion of the Court
policy choices.’” McKinney, 387 N.C. at 44, 911 S.E.2d at 9 (quoting Cmty. Success
Initiative v. Moore, 384 N.C. 194, 212, 886 S.E.2d 16, 32 (2023)).
“Under our Constitution, ‘power remains with the people and is exercised
through the General Assembly, which functions as the arm of the electorate. An act
of the people’s elected representatives is thus an act of the people and is presumed
valid unless it conflicts with the Constitution.’” Holmes v. Moore, 384 N.C. 426, 435,
886 S.E.2d 120, 129 (2023) (quoting Pope v. Easley, 354 N.C. 544, 546, 556 S.E.2d
265, 267 (2001)). Additionally, our Supreme Court precedent makes clear:
[t]he Legislature alone may determine the policy of the
State, and its will is supreme, except where limited by
constitutional inhibition, which exception or limitation,
when invoked, presents a question of power for the courts
to decide. But even then the courts do not undertake to say
what the law ought to be; they only declare what it is.
Holmes, 384 N.C. at 435, 886 S.E.2d at 129 (quoting State v. Revis, 193 N.C. 192, 195,
136 S.E. 346, 347 (1927) (recently quoted in substantial part in McKinney, 387 N.C.
at 42, 911 S.E.2d at 7). It is this Court’s task now to set aside whatever the General
Assembly’s public policy choices may have been and consider the constitutional
limitations of the General Assembly’s authority by looking at “the plain text of the
constitution just as [we] would look to the plain text of a statute” and consider
whether the Governor has met the high bar in overcoming the presumption of
constitutionality afforded to the challenged provisions of SB 382. Harper, 384 N.C. at
324, 886 S.E.2d at 414.
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Opinion of the Court
B. Justiciability
First, we address Defendants’ argument that the Governor’s lawsuit presents
a nonjusticiable political question. Legislative Defendants contend the case sub
judice “does not involve [a] separation of powers, but instead the General Assembly’s
express (and plenary) authority to assign unreserved official duties among Council of
State members within the executive branch under Article III, Section 7(2).”
In contrast, the Governor argues the question is justiciable and similar to the
issue in Cooper I that was held as such. The Governor does not challenge “the General
Assembly’s decision to ‘prescribe the functions, powers, and duties of the
administrative departments and agencies of the State,’” but rather he contends that
“the General Assembly has impermissibly exceeded a defined, textual limit on the
power that may be assigned to the State Auditor and encroached on the Governor’s
executive authority.”
The political question doctrine “‘excludes from judicial review those
controversies which revolve around policy choices and value determinations
constitutionally committed for the resolution to the’ legislative or executive branches
of government.” Cooper I, 370 N.C. at 407-08, 809 S.E.2d at 107 (quoting Bacon v.
Lee, 353 N.C. 696, 717, 549 S.E.2d 840, 854 (2001)). “Purely political questions are
those questions which have been wholly committed to the ‘sole discretion’ of a
coordinate branch of government, and those questions which can be resolved only by
making ‘policy choices and value determinations.’” N.C. State Conf. of NAACP v.
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Opinion of the Court
Moore, 382 N.C. 129, 141, 876 S.E.2d 513, 524 (2022) (quoting Bacon, 353 N.C. at
717, 549 S.E.2d at 854). Our Supreme Court has recognized general justiciability
principles including “two criteria of political questions: (1) where there is a ‘textually
demonstrable constitutional commitment of the issue’ to the ‘sole discretion’ of a
‘coordinate political department’; and (2) those questions that can be resolved only by
making ‘policy choices and values determinations.’” Id. at 141, 876 S.E.2d at 525-26
(cleaned up) (quoting Bacon, 353 N.C. at 717, 549 S.E.2d at 854).
“The political question doctrine controls, essentially, when a question becomes
‘not justiciable because of the separation of powers provided by the Constitution.’”
Cooper I, 370 N.C. at 407, 809 S.E.2d at 107 (cleaned up) (quoting Bacon, 353 N.C.
717, 549 S.E.2d at 854). “The judicial branch is designed to resolve legal disputes
and to ensure that the other branches do not violate the constitution.” Harper, 384
N.C. at 298, 886 S.E.2d at 399.
Deciding whether a matter has in any measure been
committed by the Constitution to another branch of
government, or whether the action of that branch exceeds
whatever authority has been committed, is itself a delicate
exercise in constitutional interpretation, and is a
responsibility of this Court as ultimate interpreter of the
Constitution.
Cooper I, 370 N.C. at 408, 809 S.E.2d at 107 (quoting Baker v. Carr, 369 U.S. 186,
210, 82 S. Ct. 691, 706 (1962)). Consequently, our Supreme Court has consistently
held it necessary to first “undertake a separation of powers analysis in order to
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Opinion of the Court
determine whether the political question doctrine precludes judicial resolution of a
particular dispute.” Id.
Our Supreme Court in Cooper I contrasted Bacon v. Lee (“Bacon”) and News &
Observer Publishing Co. v. Easley (“News & Observer”) to illustrate distinctions
between cases involving nonjusticiable political questions and those that do not. Id.
Bacon and News & Observer both dealt with clemency; the first addressed “the
constitutionality of the Governor’s exercise of his clemency power under Article III,
Section 5(6),” and the latter whether News & Observer was entitled under the public
records law to certain clemency records within the possession of the Governor. Bacon,
353 N.C. at 698, 549 S.E.2d at 843; News & Observer Pub. Co. v. Easley, 182 N.C.
App. 14, 19, 641 S.E.2d 698, 702 (2007).
In Bacon, our Supreme Court stated a “question may be held nonjusticiable
under this doctrine if it involves ‘a textually demonstratable constitutional
commitment of the issue to a coordinate political department.’” Bacon, 353 N.C. at
717, 549 S.E.2d at 854 (quoting Baker, 369 U.S. at 216, 82 S. Ct. at 710). Since Article
III, § 5(6) “expressly commits the substance of the clemency power to the sole
discretion of the Governor,” it determined that “judicial review of the exercise of
clemency power would unreasonably disrupt a core power of the executive.” Id.
In the case of News & Observer, this Court held the parties’ arguments did not
“involve judicial review of the Governor’s exercise of clemency power,” but “[i]nstead
the question before the Court [was] whether the [News & Observer] [was] entitled,
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under the Public Records Law, to certain clemency records within the possession of
the Governor.” News & Observer Pub. Co., 182 N.C. App. at 19, 641 S.E.2d at 702. To
answer the question, this Court determined that the “question turns not on a political
question, but on the meaning of our constitution’s proviso that the Governor’s power
is subject to legislation relative to the manner of applying for pardons.” Id. (cleaned
up). Further, this Court stated, “[t]he principle that questions of constitutional and
statutory interpretation are within the subject matter jurisdiction of the judiciary is
just as well established and fundamental to the operation of our government as the
doctrine of separation of powers.” Id. Thus,
in order to resolve the justiciability issue, we must decide
whether the Governor is seeking to have the judicial
branch interfere with an issue committed to the sole
discretion of the General Assembly or whether the
Governor is seeking to have the Court undertake the usual
role performed by a judicial body, which is to ascertain the
meaning of an applicable legal principle, such as that
embodied in N.C. Const. art. III, § 5(4).
Cooper I, 370 N.C. at 409, 809 S.E.2d at 108.
Here, the Governor has not challenged the administrative transfer of the State
Board to the department of the Auditor and concedes in his supplemental complaint
that “[i]t is undisputed that the General Assembly has considerable authority to
restructure the agencies of North Carolina government and assign, modify, and
remove powers, functions, and duties.” The Governor asserts in his supplemental
complaint that a statute restructuring an executive board—leaving the Governor
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without any “direct or indirect powers of appointment, supervision or removal over
any members”—prevents the Governor from performing his constitutional duty to
“take care that the laws be faithfully executed” and “treat[s] the State Auditor and
Governor as if they were interchangeable for constitutional purposes.” The Governor
reasons that a statute structured in this manner “impermissibly, facially, and beyond
a reasonable doubt interferes with the Governor’s ability to ensure that the laws are
faithfully executed as required by Article III, Section 5(4) of the North Carolina
[Constitution].” Id. at 418, 809 S.E.2d at 114. Because the challenged statutory
provisions allegedly violate his constitutional duty to take care, the Governor asserts
the statute violates the separation of powers. Thus, we consider the General
Assembly’s reassignment of duties between the Governor and the Auditor and not the
restructuring of functions, powers, and duties between “administrative departments,
agencies, and offices of the State.” Our focus is narrowly tailored to address any
potential conflict between Article III, § 7(2) and Article III, § 5(4) and does not require
us to examine Article III, § 11 at length in our analysis.
This case presents the question of whether the General Assembly by enacting
the statute at issue pursuant to Article III, § (7)(2) has prevented the Governor from
being able to perform his constitutional duty to take care the laws be faithfully
executed pursuant to Article III, § 5(4), that is, whether the General Assembly’s
authority to prescribe Council of State members their respective duties is limited by
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Opinion of the Court
the Governor’s duty to take care the laws be faithfully executed. Id. at 412, 809 S.E.2d
at 110.
This question “requires us to examine the constitutional provisions enacting a
system of government founded on principles of popular sovereignty and democratic
self-rule and to then determine if those provisions limit the authority of legislators
who” seek to remove duties assigned to the Governor over an executive board or
commissions. N.C. State Conf. of NCAAP, 382 N.C. at 145, 876 S.E.2d at 526.
Therefore, the question before us is not excluded from judicial review.
C. Reassignment of Elected Officer Duties
The case before us presents a matter of first impression regarding the General
Assembly’s ability to reassign certain duties prescribed by law among Council of State
members within the executive branch. N.C. Const. art. III, § 7(2). Accordingly, the
three-judge panel erred by concluding it “makes no difference to the constitutional
analysis” that the duties at issue here were transferred from the Governor to the
Auditor rather than the General Assembly. Specifically, this case considers to what
extent the General Assembly may reassign duties that the General Assembly had
delegated to the Governor for more than one hundred years, but now the General
Assembly desires to delegate to a different elected officer within the Council of State
under the authority granted pursuant to Article III § 7(2) of our constitution. Article
III § 7(2) of our constitution states that Council of State members’ “respective duties
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shall be prescribed by law,” i.e., prescribed by the General Assembly. N.C. Const. art.
III, § 7(2).
The Governor argues the General Assembly violated the separation of powers
by reassigning duties because, in his words, “[i]f the General Assembly can freely
allocate responsibility for administering elections among Council of State members,
it can effectively control elections administration itself.”3 “When a branch is accused
of violating separation of powers by encroaching upon the executive branch’s
authority, we consider whether the accused branch’s actions ‘unreasonably disrupt a
core power of the executive.’” Stein Commissions, __ N.C. App. at __, 923 S.E.2d at
3 We also note the following argument from the Governor’s brief on appeal:
the General Assembly cannot assign the responsibility to administer
elections to the Auditor. Administering elections is wholly unrelated to
the Auditor’s core constitutional function. And, equally importantly,
for the entire life of this State, the Auditor has never played a
meaningful role in our State’s elections. . . . The General Assembly’s
decision nevertheless to appoint the Auditor as our State’s chief
elections administrator also violates the Separation of Powers Clause.
If the General Assembly can freely allocate responsibility for
administering elections among Council of State members, it can
effectively control elections administration itself. The Constitution
forbids that result. And because the General Assembly cannot task the
Auditor with administering elections, that responsibility must revert
to the Governor, who enjoys any residual executive authority. Because
Senate Bill 382 adopts a contrary regime, the provisions challenged
here are unconstitutional.
It is important to note that despite this argument from the Governor on appeal, the Auditor is not the Executive Director of the State Board nor the chief elections official for the state. In fact, the members of the State Board appoint the Executive Director who is “responsible for staffing, administration, and execution of the State Board’s decisions and orders and shall perform such other responsibilities as may be assigned by the State Board.” N.C. Gen. Stat. § 163-27. Further, “[t]he Executive Director shall be the chief State elections official,” not the Auditor. N.C. Gen. Stat. § 163-27(d).
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584 (quoting McCrory, 368 N.C. at 645, 781 S.E.2d at 256). Generally, a core power
of the executive is disrupted and a separation of powers violation has occurred when
the “accused branch ‘retains some control’ over the executive branch’s functions.” Id.
at __, 923 S.E.2d at 584 (quoting McCrory, 368 N.C. at 645, 781 S.E.2d at 256). As
our Supreme Court previously has noted: the State Board “clearly performs primarily
executive, rather than legislative or judicial, functions” as it is responsible for “the
enforcement of laws governing elections, campaign finance, lobbying, and ethics.”
Cooper I, 370 N.C. at 415, 809 S.E.2d at 112.
However, there is no “categorical rule that would resolve every separation of
powers challenge,” and because “each statutory scheme varies,” we must examine the
“specific factual and legal context” of each challenge. Stein Commissions, __ N.C. App.
at __, 923 S.E.2d at 584-85 (recognizing separation of powers violations “can be ‘more
nuanced’ and occur ‘when the actions of one branch prevent another branch from
performing its constitutional duties.’”) (quoting McCrory, 368 N.C. at 645, 781 S.E.2d
at 256). “Asserted separation of powers violations are analyzed on a case-by-case
basis with a flexible and pragmatic approach.” Cooper v. Berger, 256 N.C. App. 190,
196, 807 S.E.2d 176, 180 (2017).
Further, “[e]very constitutional inquiry examines the text of the relevant
provision, the historical context in which the people of North Carolina enacted it, and
this Court’s precedents interpreting it.” McKinney, 387 N.C. at 45, 911 S.E.2d at 9.
“A violation of separation of powers only occurs when one branch of government
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exercises, or prevents the exercise of, a power reserved for another branch of
government.” Harper, 384 N.C. at 322, 886 S.E.2d at 413 (emphasis added).
Consequently, our task is to determine whether by reassigning the duties within the
challenged sections of SB 382 the General Assembly has exercised, or prevented the
exercise of, a power reserved only for the executive branch.4
1. Separation of Powers
The separation of powers clause in our constitution states, “[t]he legislative,
executive, and supreme judicial powers of the State government shall be forever
separate and distinct from each other.” N.C. Const. art. I, § 6. While Legislative
Defendants assert that the “separation of powers only deals with the balance of power
between branches, not the allocation of duties within a single branch,” they fail to
recognize separation of powers violations can be more nuanced.
4 Our Supreme Court in the Stein Stay Order indicates that “[i]n cases of first impression,
the presumption of constitutionality is especially strong,” and further explains in a footnote:
This is because cases of first impression inherently lack precedential
guidance and require the reviewing court to conduct a novel
constitutional analysis. Accordingly, it is particularly inappropriate
for courts in such cases to declare an act of the General Assembly
unconstitutional unless a rigorous examination of text and history
reveals a constitutional violation beyond a reasonable doubt. See
McKinney, 387 N.C. at 41-42, 44-45, 911 S.E.2d 1 (explaining that
enacted laws are presumptively constitutional and must be proven
otherwise beyond a reasonable doubt, which courts evaluate by
“examining the text of the relevant constitutional provision, the
historical context in which the people of North Carolina enacted it, and
this Court’s precedents interpreting it”).
Stein Stay Order, 387 N.C. at 577 n.3, 915 S.E.2d at 147 n.3.
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Opinion of the Court
When a branch is accused of violating separation of powers
by encroaching upon the executive branch’s authority, we
consider whether the accused branch’s actions
“unreasonably disrupt a core power of the executive.” Such
action generally occurs when the accused branch “retains
some control over the executive branch’s functions.”
There is, however, no “categorical rule that would resolve
every separation of powers challenge” because “each
statutory scheme” varies. Consequently, “we must resolve
each challenge by carefully examining its specific factual
and legal context.”
Separation of powers violations, therefore, can be “more
nuanced” and occur “when the actions of one branch
prevent another branch from performing its constitutional
duties.”
Stein Commissions, __ N.C. App. at __, 923 S.E.2d at 584-85 (quoting McCrory, 368
N.C. at 645-46, 781 S.E.2d at 256-57). This Court recently acknowledged again in
the cases of Stein Commissions and Stein Utilities that our Supreme Court has yet to
address just “how the separation of powers clause applies to those executive
departments that are headed by the independently elected members of the Council of
State.” Stein v. Hall (Stein Utilities), __, N.C. App. __, __ , 925 S.E.2d 832, 842 (2026)
(quoting McCrory, 368 N.C. at 646 n.5, 781 S.E.2d at 256 n.5); see Stein Commissions,
__ N.C. App. at __, 923 S.E.2d at 590-94 (Murry, J., concurring). The Council of State
is composed of the following members: the Governor, the Lieutenant Governor, the
Secretary of State, the Auditor, the Treasurer, the Superintendent of Public
Instruction, the Attorney General, the Commissioner of Agriculture, the
Commissioner of Labor, and the Commissioner of Insurance. N.C. Const. art. III, §§
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7(1), 8. The Governor, although head of the executive branch and leader of the
Council of State, does not unilaterally exercise the executive power but shares this
power with the other Council of State members. Stein Commissions, __ N.C. App. at
__, 923 S.E.2d at 584; Carrington v. Brown, 136 N.C. App. 554, 560, 525 S.E.2d 230,
235 (2000); Cooper Confirmation, 371 N.C. at 799-800, 822 S.E.2d at 289 (stating,
“[b]ut the Governor is not alone in this task” of taking care the laws are faithfully
executed because our “constitution establishes nine other offices in the executive
branch.”).
Because this is a case of first impression, we recognize the difficulty the threejudge panel faced in analyzing the issues presented. However, the three-judge panel’s
contention that it “makes no difference to the constitutional analysis” that the
transfers of appointment and removal powers at issue were transferred from the
Governor to the Auditor, rather than from the Governor to the General Assembly, is
flawed in light of the nuances arising under the facts of this case. While the threejudge panel relied on McCrory, Cooper I, and Cooper Confirmation as directly
controlling, we conclude that the issues presented are distinguishable and therefore,
the cases are not directly controlling. Nonetheless, we recognize that while the cases
are not directly controlling, each may provide useful guidance; we examine each to
consider its application of the relevant constitutional provisions and its examination
of separation of powers violation nuances.
2. McCrory, Cooper I, and Cooper Confirmation
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Opinion of the Court
Although McCrory, Cooper I, and Cooper Confirmation are distinguishable
from the case sub judice, we consider each of their applications of the relevant
constitutional provisions because they still provide useful guidance. Specifically,
these cases are distinguishable because the issue in each was legislation whereby the
General Assembly took a duty it had assigned to the Governor, i.e., the executive
branch, and either transferred it to itself or exerted great control over duties assigned
to the Governor, thus, posing a classic separation of powers question.
The challenged legislation in McCrory authorized the General Assembly to
appoint the majority of the voting members to three administrative commissions: the
Oil and Gas Commission, the Mining Commission, and the Coal and Ash
Management Commission, each of which performed primarily executive functions.
Our Supreme Court concluded that, “[i]n short, the legislative branch has exerted too
much control over commissions that have final executive authority. By doing so, it
has prevented the Governor from performing his express constitutional duty to take
care that the laws are faithfully executed.” McCrory, 368 N.C. at 636, 781 S.E.2d at
250. The holding in McCrory states:
When the General Assembly appoints executive officers
that the Governor has little power to remove, it can appoint
them essentially without the Governor’s influence. That
leaves the Governor with little control over the views and
priorities of the officers that the General Assembly
appoints. When those officers form a majority on a
commission that has the final say on how to execute the
laws, the General Assembly, not the Governor, can exert
most of the control over the executive policy that is
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Opinion of the Court
implemented in any area of the law that the commission
regulates. As a result, the Governor cannot take care that
the laws are faithfully executed in that area. The
separation of powers clause plainly and clearly does not
allow the General Assembly to take this much control over
the execution of the laws from the Governor and lodge it
with itself.
Id. at 647, 781 S.E.2d at 257 (emphasis added). Significantly, McCrory, explicitly
stated that the “opinion takes no position on how the separation of powers clause
applies to those executive departments that are headed by the independently elected
members of the Council of State.” Id. at 646 n.5, 781 S.E.2d at 256 n.5.
Two years later in Cooper I, our Supreme Court examined an attempt by the
General Assembly to lessen the Governor’s control over the State Board and
acknowledged certain “policy-related decisions committed to the General Assembly”
pursuant to Article III, § 5(10). Cooper I, 370 N.C. at 418, 809 S.E.2d at 114.
Specifically, the “policy-related decisions committed to the General Assembly”
include: specifying “the number of members of an executive branch commission”;
establishing “qualifications for commission membership”; making “certain persons ex
officio members of the commission”; mandating that “differing policy preferences be
reflected in the commission’s membership”; providing “the commission with a
reasonable degree of independence from short-term political interference”; and
fostering “the making of independent, non-partisan decisions.” Id. at 417-18, 809
S.E.2d at 113-14. Additionally, our Supreme Court recognized that the General
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Opinion of the Court
Assembly cannot, “consistent with the textual command contained in” Article III, §
5(4):
structure an executive branch commission in such a
manner that the Governor is unable, within a reasonable
period of time, to “take care that the laws be faithfully
executed” because he or she is required to appoint half of
the commission members from a list of nominees consisting
of individuals who are, in all likelihood, not supportive of,
if not openly opposed to, his or her policy preferences while
having limited supervisory control over the agency and
circumscribed removal authority over commission
members. An agency structured in that manner “leaves
the Governor with little control over the views and
priorities of the majority of officers” and prevents the
Governor from having “the final say on how to execute the
laws.”
Id. at 418, 809 S.E.2d at 114 (quoting McCrory, 368 N.C. at 647, 781 S.E.2d at 257).
Cooper I further clarified in a footnote that when referencing “the Governor’s policy
preferences” in regard to the “interstitial policy decisions given to administrative
agencies,”
[w]e refer to the ability of the executive branch to make
these discretionary determinations as the effectuation of
“the Governor’s policy preferences” throughout the
remainder of the opinion. The use of this expression should
not be understood as suggesting that the Bipartisan State
Board has the authority to make any policy decision that
conflicts with or is not authorized by the General Assembly,
subject to applicable constitutional limitations.
Id. at 415 n.11, 809 S.E.2d at 112 n.11 (emphasis added). Cooper I further discussed
McCrory and the degree of control the Governor must retain and how the policy
preferences of the Governor are to be considered:
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Opinion of the Court
As was the case in McCrory, in which we determined that
the General Assembly had exerted excessive control over
certain executive agencies by depriving the Governor of
“control over the views and priorities” of a majority of the
members of the commissions at issue in that litigation, we
conclude that the relevant provisions of Session Law 2017-6, when considered as a unified whole, “leave the Governor
with little control over the views and priorities” of the
Bipartisan State Board, by requiring that a sufficient
number of its members to block the implementation of the
Governor’s policy preferences be selected from a list of
nominees chosen by the leader of the political party other
than the one to which the Governor belongs,[n.12] limiting
the extent to which individuals supportive of the
Governor’s policy preferences have the ability to supervise
the activities of the Bipartisan State Board, and
significantly constraining the Governor’s ability to remove
members of the Bipartisan State Board.
Id. at 416, 809 S.E.2d at 112-13 (quoting McCrory, 368 N.C. at 647, 781 S.E.2d at
257). Importantly, the issue of the Governor’s policy preferences and how it is
considered in the analysis was again clarified in a footnote:
We are, of course, unable to conclude with absolute
certainty that persons chosen by the chair of the opposing
political party will invariably and in all instances act to
thwart the Governor’s policy preferences at every turn.
However, we do not believe that the applicable standard of
review, including the presumption of constitutionality,
requires us to turn a blind eye to the functions
appropriately performed by the leader of an opposition
party in our system of government or to force the Governor
to be subject to the uncertainty that will necessarily arise
from a determination that the showing of an actual
interference with the Governor’s executive authority is a
necessary prerequisite to his or her ability to challenge
legislation as violative of Article III, Section 5(4) of the
North Carolina Constitution. Utilizing similar logic, the
Court held in McCrory that the Governor lacked sufficient
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Opinion of the Court
control over the administrative commissions at issue in
that case based upon the fact that a majority of
appointments had been made by the members of the General
Assembly. As a result, our decision in this case is fully
consistent with the applicable standard of review.
Id. at 416 n.12, 809 S.E.2d at 112 n.12 (emphasis added).
In the same year as Cooper I, the General Assembly enacted a statute
authorizing the North Carolina Senate to confirm the individuals the Governor
nominates to serve in his Cabinet. Our Supreme Court in Cooper Confirmation
ultimately held that the Governor retained enough control over the members of his
Cabinet to ensure the laws be faithfully executed and senatorial confirmation did not
violate separation of powers because:
The Governor’s power to nominate is significant, and the
ultimate appointee will be a person that he alone has
chosen, subject only to an up-or-down vote by the Senate.
The Governor’s supervisory and removal powers,
moreover, ensure that the Governor retains ample postappointment control over how his Cabinet members
perform their duties.
Cooper Confirmation, 371 N.C. at 801, 822 S.E.2d at 290. We reiterate, Cooper
Confirmation explicitly stated that it “takes no position on how the separation of
powers clause applies to those executive departments that are headed by
independently elected members of the Council of State.” Id. at 806 n.5, 822 S.E.2d at
293 n.5 (cleaned up).
3. Core Constitutional Duties
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Opinion of the Court
The Governor is not just another Council of State member within the executive
branch; the Governor is the head of the executive branch. The Governor and other
Council of State members are not fungible as alleged by Legislative Defendants.
When functions, powers, and duties assigned to the Governor are reassigned by the
General Assembly, additional consideration is required to determine whether that
reassignment prevents the Governor from performing a core constitutional duty and
whether the General Assembly has retained control over executive branch functions.
If it is determined that the General Assembly’s reassignment of duties to executive
commissions, like the State Board, encroached upon the Governor’s constitutional
duties, separation of powers may be violated. Therefore, we examine the Governor’s
argument that the General Assembly has encroached upon his core constitutional
duties.
a. Duties of the Governor as Chief Executive Officer of the State
“The Governor is our state’s chief executive. He or she bears the ultimate
responsibility of ensuring that our laws are properly enforced.” Id. at 799, 822 S.E.2d
at 289. Although the Governor is the head of the executive branch, our Supreme
Court has stated the Governor does not unilaterally exercise the executive power nor
is he unilaterally responsible for taking care the laws are faithfully executed. Stein
Commissions, __ N.C. App. at __, 923 S.E.2d at 584; Carrington, 136 N.C. App. at
560, 525 S.E.2d at 235. Specifically, our Supreme Court has interpreted the take care
clause to be a “nonexclusive duty conferred upon all ten Council of State members.”
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Opinion of the Court
Stein Commissions, __ N.C. App. at __, 923 S.E.2d at 584; N.C. Const. art. III, § 5(4);
Cooper Confirmation, 371 N.C. at 799-800, 822 S.E.2d at 289 (stating, “[b]ut the
Governor is not alone in this task” of taking care the laws be faithfully executed
because our “constitution establishes nine other offices in the executive branch.”)
Article III, § 5 of our constitution sets forth eleven constitutional duties of the
Governor: (1) Residence; (2) Information to General Assembly; (3) Budget; (4)
Execution of Laws; (5) Commander in Chief; (6) Clemency; (7) Extra Sessions; (8)
Appointments; (9) Information; (10) Administrative reorganization; and (11)
Reconvened sessions. N.C. Const. art. III, § 5. While the issue in the case sub judice
involves the duty to appoint members to the State Board and our constitution
includes “Appointments” as a duty of the Governor, this duty to appoint extends only
to “all officers whose appointments are not otherwise provided for,” which our
Supreme Court has interpreted to give “the Governor the exclusive authority to
appoint constitutional officers whose appointments are not otherwise provided for by
the constitution.” N.C. Const. art. III, § 5(8); McCrory, 368 N.C. at 639, 781 S.E.2d at
252. Members of the State Board and County Boards are not constitutional officers,
they are statutorily created officers of executive branch commissions. McCrory, 368
N.C. at 639-40, 781 S.E.2d at 252-53. Therefore, it is not a core constitutional duty
of the Governor to appoint members to the State Board, leaving only the Governor’s
duty to “take care that the laws be faithfully executed” as a core constitutional duty
that could be encroached upon.
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Opinion of the Court
b. Duties of the Auditor
Our constitution establishes the position of the State Auditor within the
executive branch and as a member of the Council of State; however, the only
constitutional duty of the Auditor is the nonexclusive duty conferred upon all Council
of State members to “take care that the laws be faithfully executed.” Stein
Commissions, __ N.C. App. at __, 923 S.E.2d at 584; N.C. Const. art. III, § 5(4); Cooper
Confirmation, 371 N.C. at 799-800, 822 S.E.2d at 289 (stating, “[b]ut the Governor is
not alone in this task” of taking care the laws be faithfully executed because our
“constitution establishes nine other offices in the executive branch.”). All other duties
of the Auditor are those prescribed by the General Assembly. N.C. Const. art. III, §
7(2).
Our general statutes provide that “[i]t is the policy of the General Assembly to
provide for the auditing and investigation of State agencies by the impartial,
independent State Auditor.” N.C. Gen. Stat. § 147-64.6(a) (emphasis added). To
maintain the impartial, independent, and objective nature of
the audit function, the Auditor and his employees may not,
unless otherwise expressly authorized by statute, serve in
any capacity on an administrative board, commission, or
agency of government of a political subdivision of the State
or any other organization that, under the provisions of this
act, they have the responsibility or authority to audit. Nor
shall they have a material, direct or indirect financial, or
other economic interest in the transactions of any State
agency.
N.C. Gen. Stat. § 147-64.12 (a). Thus, the Auditor, along with the Governor, does not
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Opinion of the Court
have an explicit constitutional duty to appoint members to the State Board. However,
the Auditor, as the one presently assigned the duty to make appointments to the
State Board, now has the constitutional duty to continue to “take care that the laws
be faithfully executed” by the board members he appoints. N.C. Const. art. III, § 5(4);
N.C. Gen. Stat. § 147-64.6(c)(23).
D. Apolitical Nature of the State Board
While the State Board clearly performs executive functions, it is distinct from
those other administrative boards and commissions that also perform primarily
executive functions. The State Board should not, nor is it designed to, effectuate the
policy preferences of any elected or appointed official. Elections are the backbone of
democracy and should be administered without the influence of any particular policy
preference. The State Board should and is designed to be an apolitical entity that
does not require consideration of, or adherence to, the political preferences of the
Governor to ensure that the laws pertaining to elections are faithfully executed. Any
Council of State member can effectively perform the nonexclusive executive branch
duty to “take care that the laws be faithfully executed” because policy preferences
have no role in the administration of election laws. N.C. Const. art. III, § 5(4).
Members of the State Board are required to take an Oath of Office and must
adhere to strict guidelines prohibiting certain political involvement and activity;
these prohibitions effectively require the State and County Boards to appear
primarily apolitical during their term; specifically:
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Opinion of the Court
(f) No person shall be eligible to serve as a member of the
State Board who:
(1) Holds any elective or appointive office under the
government of the United States, the State of North
Carolina, or any political subdivision thereof.
(2) Is a candidate for nomination or election to any
office.
(3) Holds any office in a political party or
organization.
(4) Is a campaign manager or treasurer of any
candidate in a primary or election.
(5) Is currently an employee of the State, a
community college, or a local school administrative
unit.
(6) Within the 48 months prior to appointment, has
held any of the following positions with an
organization that has engaged in electioneering in
those 48 months:
a. Director, officer, or governing board
member.
b. Employee.
c. Lobbyist registered under Chapter 120C of
the General Statutes.
d. Independent contractor.
e. Legal counsel of record.
(g) No person while serving on the State Board shall:
(1) Make a reportable contribution to a candidate for
a public office over which the State Board would
have jurisdiction or authority.
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Opinion of the Court
(2) Register as a lobbyist under Chapter 120C of the
General Statutes.
(3) Make written or oral statements intended for
general distribution or dissemination to the public
at large supporting or opposing the nomination or
election of one or more clearly identified candidates
for public office.
(4) Make written or oral statements intended for
general distribution or dissemination to the public
at large supporting or opposing the passage of one or
more clearly identified referendum or ballot issue
proposals.
(5) Solicit contributions for a candidate, political
committee, or referendum committee.
(6) Serve as a member of any other State board, as
defined in G.S. 138A-3.
N.C. Gen. Stat. § 163-19(f), (g). Further, the five-member State Board may not consist
of more than three members affiliated with the same political party and members are
appointed from a list of nominees submitted by the “State party chair of each of the
two political parties having the highest number of registered affiliates as reflected by
the latest registration statistics published by the State Board.” N.C. Gen. Stat. § 163-19(b).
Board members are not prohibited from: (1) making individual expressions of
“opinion, support, or opposition for general public distribution”; (2) participating “in
a political party convention as a delegate”; (3) “making a contribution to a candidate,
political committee, or referendum committee”; or (4) “advising other governmental
entities as to technical matters related to election administration or revision of
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Opinion of the Court
electoral district boundaries.” N.C. Gen. Stat. § 163-39. However, board members are
explicitly prohibited from: (1) making “written or oral statements intended for general
distribution or dissemination to the public at large supporting the nomination or
election of one or more clearly identified candidates for public office”; (2) making
“written or oral statements intended for general distribution or dissemination to the
public at large supporting or opposing the passage of one or more clearly identified
referendum proposals”; and (3) “[s]olicit[ing] contributions for a candidate, political
committee, or referendum committee.” Id.
These political activity limitations are necessary to ensure that “[a]ll elections
shall be free.” N.C. Const. art. I, § 10. Unlike other state executive boards and
commissions, it is absolutely imperative that the State Board and County Boards
operate free of political influence and interference, irrespective of those policy
preferences of the Governor.
The ultimate purpose of free elections is to give power to the people and
“[u]nder our Constitution, ‘power remains with the people and is exercised through
the General Assembly, as the functioning arm of the electorate. An act of the people’s
elected representatives is thus an act of the people and is presumed valid unless it
conflicts with the Constitution.’” Holmes, 384 N.C. at 435, 886 S.E.2d at 129 (quoting
Pope, 354 N.C. at 546, 556 S.E.2d at 267). Elections allow the people to choose who
will represent them and further allow for the peaceful replacement of those elected
representatives. “These processes enable the sovereign power to be exercised by the
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Opinion of the Court
People’s representatives in the General Assembly, but at all times the sovereign
power resides with the people.” N.C. State Conf. of NCAAP, 382 N.C. at 147, 876
S.E.2d at 527 (cleaned up). For elections to be free and fair, election administration
must be structured apolitically and those individuals charged with the duty to
conduct elections shall not be given the power to influence the people to vote for their
preferred candidate. The role of an election official is to ensure that every eligible
voter has an equal opportunity to vote and that every lawful vote is counted
accurately.
E. Summary and Application to Present Case
In summary, prior to SB 382 the Governor: appointed all five members of the
State Board; held the duty to fill vacancies or remove members who failed to attend
meetings; appointed the chair of each County Board of Elections; and directed and
supervised budgeting functions for the State Board. SB 382 transferred all of these
assigned duties from the Governor to the Auditor. This reassignment of duties clearly
leaves the Governor without a degree of control over the State Board or the ability to
ensure board members align with his policy preferences. However, separation of
powers violations can be nuanced, as is the separation of powers question here.
McCrory, Cooper I, and Cooper Confirmation are clear examples of the General
Assembly encroaching on the executive branch’s—and at the time, the Governor’s—
core powers and preventing the executive branch from “tak[ing] care that the laws be
faithfully executed.” N.C. Const. art. III, § 5(4). However, the Courts in those cases
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Opinion of the Court
did not consider what the outcome would have been had the duties at issue been
reassigned to another Council of State member instead of to the General Assembly
itself, or if any of the restrictions placed on the Governor’s appointments were
controlled in some way by another Council of State member instead of the General
Assembly.
Specifically, in the case of Cooper I, our Supreme Court held it was
unconstitutional for the legislation to mandate that the Governor “appoint half of the
commission members from a list of nominees consisting of individuals who are, in all
likelihood, not supportive of, if not openly opposed to, his or her policy preferences
while having limited supervisory control over the agency and circumscribed removal
authority over commission members.” Cooper I, 370 N.C. at 418, 809 S.E.2d at 114.
Here, the challenged provisions of SB 382 do not place heightened restrictions on who
can be appointed to the State Board such that the appointer is required to select
individuals who could potentially prevent the ability to “take care that the laws be
faithfully executed.” N.C. Const. art. III, § 5(4). The challenged provisions take the
same appointment parameters by which the Governor previously had been required
to abide when making the appointments and replaced the Governor with the Auditor
as the appointer. Therefore, the issue is whether the Auditor, i.e., another elected
officer of the executive branch and member of the Council of State who has the
nonexclusive duty to “take care that the laws be faithfully executed,” can sufficiently
perform this particular constitutional duty or whether the General Assembly, by
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Opinion of the Court
reassigning this duty to the Auditor, has prevented the executive branch from
performing its constitutional duty. Stein Commissions, __ N.C. App. at __, 923 S.E.2d
at 584. For the reasons stated herein, we hold the challenged provisions of SB 382
do not violate the separation of powers.
In the case of the State Board, we cannot hold that the reassignment of duties
from the Governor to the Auditor results in a plain and clear violation of the
separation of powers. Whether the General Assembly should be allowed to reassign
these duties from a public policy standpoint is not for this Court to decide. It is this
Court’s duty to “uphold the statute regardless of whether we agree with the General
Assembly’s public policy choices” if the Governor, as the challenging party, has failed
to prove beyond a reasonable doubt that the challenged provisions are
unconstitutional. McKinney, 387 N.C. at 44, 911 S.E.2d at 9 (quoting Cmty. Success
Initiative, 384 N.C. at 212, 886 S.E.2d at 32). Stated differently, “[w]hen assessing a
challenge to the constitutionality of legislation, this Court’s duty is to determine
whether the General Assembly has complied with the constitution. If constitutional
requirements are met, the wisdom of the legislation is a question for the General
Assembly.” Hart v. State, 368 N.C. 122, 126, 774 S.E.2d 281, 284 (2015).
We emphasize this opinion does not create a bright line rule for how the
separation of powers clause applies to future potential reassignment of duties among
Council of State members. Whether a reassignment of duties among Council of State
members constitutes a violation of the separation of powers must be analyzed on a
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Opinion of the Court
case-by-case basis to consider the specific factual and legal circumstances presented.
We further recognize that there are aspects of the election administration process
about which elected legislators and policy makers may reasonably disagree from a
policy standpoint, such as voter ID requirements, early voting periods and locations,
and absentee voting rules, for example. It is important in this analysis to recognize
these “policy-related decisions [are] committed to the General Assembly rather than
to this Court,” and the “General Assembly has the undoubted authority to prescribe
the commission’s functions, powers and duties and to determine the substance of the
laws and policies that the commission is called upon to execute.” Cooper I, 370 N.C.
at 417-18, 809 S.E.2d at 113-14 (2018). It is the task of the State and County Boards
to administer elections pursuant to the laws duly enacted by the General Assembly.
While the General Assembly “in the exercise of its authority to delegate the making
of interstitial policy decisions to administrative agencies” may give “decision making
responsibilities to the executive branch by way of [the State Board],” this should not
be taken to suggest that the State Board may make interstitial policy decisions “that
conflict[] with or [are] not authorized by the General Assembly, subject to applicable
constitutional limitations.” Id. at 415 n.11, 809 S.E.2d at 112 n.11.
Elections are the backbone of our democracy and their administration should
be free, fair, and without the influence of the policy preferences of those tasked with
administering them and appointing those who administer them. Additionally, as
suggested in Cooper I, the State Board would not have the “authority to make any
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Opinion of the Court
policy decision that conflicts with or is not authorized by the General Assembly,
subject to applicable constitutional limitations” regardless of its policy preferences.
Id. Further, “the General Assembly has the undoubted authority to prescribe [an
executive] commission’s functions, powers, and duties and to determine the substance
of the laws and policies that the commission is called upon to execute,” and “the
General Assembly has the authority to provide [an executive] commission with a
reasonable degree of independence from short-term political interference and to foster
the making of independent, non-partisan decisions.” Id. at 417, 809 S.E.2d at 113.
Accordingly, the General Assembly has not structured the State Board in such a
manner that the executive branch, through the Auditor, cannot “take care that the
laws be faithfully executed.” N.C. Const. art. III, § 5(4).
We are not ignorant to the fact that our current Governor and Auditor are
members of opposing political parties and may have opposing policy preferences.
Further, we note that this policy decision by the General Assembly to reassign the
duties at issue leaves open the possibility for future reassignment of these duties back
to the Governor or to another Council of State member as the political makeup of the
General Assembly changes. However, the State Board is not designed to be driven
by the political preferences of its members or the preferences of the Council of State
member assigned to make the appointments of board members. State Board
members are explicitly prohibited from certain political activities; thus, for us to
conclude that it is a violation of the separation of powers for the General Assembly to
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Opinion of the Court
make this specific reassignment of duties would be to say that the State Board must
operate under the political preferences of specifically the Governor. It is the
Auditor’s, not solely the Governor’s, constitutional duty to “take care that the laws be
faithfully executed,” and it is within the General Assembly’s constitutional authority
to prescribe the duties of the Auditor and further “prescribe the functions, powers,
and duties of the administrative departments and agencies of the State,” which
includes the State Board. N.C. Const. art. III, §§ 5(4), 7(2). Because the duties at
issue within the challenged provisions of SB 382 are not constitutionally assigned to
a particular Council of State member we will not declare that the policy preferences
of the Governor hold greater weight than the policy preferences of the Auditor when
it comes to any potential influence this individual may have over this particular state
board tasked with administering the free elections our constitution and democracy
demand.
The Governor has not demonstrated beyond a reasonable doubt that the
challenged provisions of SB 382 demonstrate a “plain and clear” separation of powers
violation in that the General Assembly has “retained some control” over the executive
branch’s functions and has unreasonably disrupted a core power of the executive.
McCrory, 368 N.C. at 639, 645, 781 S.E.2d at 252, 256. In other scenarios the General
Assembly may be restrained by the Governor’s explicit constitutional duty to “take
care that the laws be faithfully executed” because of his position as Chief Executive
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Opinion of the Court
Officer and head of the Council of State; but this has not been proven in the case sub
judice. N.C. Const. art. III, § 5(4), (10).
The duty to “take care” is a duty reserved for the executive branch. The General
Assembly may have stripped the Governor entirely of control over the State Board,
but the General Assembly reassigned the duties at issue to another Council of State
member in a manner that has not exerted control over, or prevented, the executive
branch from performing its core constitutional duties. Thus, the General Assembly
is not effectively controlling how the functions of the executive branch are carried out
and a separation of powers violation has not occurred. See Stein Commissions, __ N.C.
App. at __, 923 S.E.2d at 584-85.
III. Conclusion
For the foregoing reasons, we hold the Governor’s complaint raises a justiciable
question. We affirm the portion of the three-judge panel’s order determining the
Governor’s claims are ripe for judicial determination. We further hold the General
Assembly did not violate the separation of powers by enacting Sections 3A.3.(b), (c),
(d), (f), (g), and (h) of SB 382. Therefore, we reverse the remainder of the three-judge
panel’s order because it erred by concluding the Governor has proven beyond a
reasonable doubt that the challenged portions of SB 382 are unconstitutional.
Because the Governor has not proven the challenged portions unconstitutional
beyond a reasonable doubt, the challenged portions of SB 382 are presumed to be
constitutional. Therefore, Sections 3A.3.(b), (c), (d), (f), (g), and (h) of SB 382 retain
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Opinion of the Court
their presumption of constitutionality. We reverse the portion of the three-judge
panel’s order concluding otherwise.
AFFIRMED IN PART AND REVERSED IN PART.
Judge ZACHARY concurs.
Judge ARROWOOD dissenting by separate opinion.
- 43 -No. COA25-652 – Stein v. Hall
ARROWOOD, Judge, dissenting.
“The executive power of the State shall be vested in the Governor.” N.C. Const.
art. III, § 1. Article III, Section 5 is titled “Duties of Governor.” Section 5(4) provides
that “[t]he Governor shall take care that the laws be faithfully executed.” Section
5(10) states that “the Governor may make such changes in the allocation of offices
and agencies and in the allocation of those functions, powers, and duties as he
considers necessary for efficient administration.” Section 7 states that the duties of
other elected officers in the executive branch, including the Auditor, “shall be
prescribed by law.” By the plain text of our Constitution, only the Governor is charged
with taking care that the law be faithfully executed.
I agree with the majority that this case presents a justiciable question of law
and with much of the majority’s framing of the questions presented in this appeal. I
further commend the majority for acknowledging and emphasizing the importance
and constitutional underpinnings of ensuring that our elections remain free and
fairly administered. However, I respectfully dissent from the majority’s conclusion
that the General Assembly has not violated the separation of powers. I also take
exception to this Court’s decision to issue writ of supersedeas to effectively reverse
the lower court during the pendency of this appeal, with no briefing or arguments
and by order that includes no reasoning, rather than maintain the status quo.
I. Article III and Core Constitutional Functions
The Legislative Defendants assert that pursuant to Article III, Section 7(2) the
STEIN V. HALL
ARROWOOD, J., dissenting
General Assembly may freely reallocate various functions, powers, and duties among
the members of the Council of State; that as long as executive functions remain
somewhere within the executive branch, any such reallocations are permissible under
the Constitution.
I totally disagree. Article III Sections 1 and 5 create a requirement that the
Governor be the primary executive charged with taking care that the laws be
faithfully executed; our Supreme Court has recognized that the Governor must have
“enough control” over agencies that “are primarily administrative or executive in
character[.]” State ex. rel. McCrory v. Berger, 368 N.C. 633, 645–46 (2016); see also
Cooper v. Berger (Cooper I), 370 N.C. 392, 414 (2018).5 “When we assess a separation
of powers challenge that implicates the Governor’s constitutional authority, we must
determine whether the actions of a coordinate branch ‘unreasonably disrupt a core
power of the executive.’ ” McCrory, 368 N.C. at 645 (quoting Bacon v. Lee, 353 N.C.
696, 717 (2001)). The State Board and County Boards, with “responsibility for the
enforcement of laws governing elections, campaign finance, lobbying, and ethics,
clearly perform[ ] primarily executive” functions. Cooper I, 370 N.C. at 415. Each
separation of powers challenge must be resolved by “carefully examining its specific
factual and legal context.” McCrory, 368 N.C. at 646–47.
Prior to SB 382, overseeing the State Board and County Boards was a part of
5 Although the majority finds these cases distinguishable and not directly controlling, I disagree and believe we are required to consider whether the Governor has sufficient control.
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ARROWOOD, J., dissenting
the Governor’s duties for over 100 years, and relates to a major purpose of the
Governor’s constitutional duties: enforcement of laws governing elections, campaign
finance, and beyond. The Governor exerted control over the Boards primarily by
appointment power.
The Auditor’s duties, by contrast, have historically involved “the auditing and
investigation of State agencies” and ensuring state agencies are complying with the
laws, rather than directly overseeing a separate agency or directly enforcing the laws.
N.C.G.S. § 147-64.6(a) (2025). The Auditor did not have any appointment powers
prior to being assigned the Board.
Considering this context, I would conclude the enforcement of election laws is
a core function and power of the Governor, who accordingly requires some degree of
control over the State Board and County Boards as part of his constitutional duties.
Instead, the General Assembly has removed the Boards entirely from the Governor’s
oversight and control, which in turn prevents the Governor from carrying out his core
constitutional duties.
Our Supreme Court has previously recognized that “independent executive
offices . . . with their differing functions and duties under the constitution create a
clear potential for conflict[,]” calling us to consider whether an executive officer’s
duties “as prescribed by statutory and common law” are “in derogation of or
inconsistent with the executive power vested by the constitution in the Governor.”
Martin v. Thornburg, 320 N.C. 533, 546 (1987). I believe SB 382 creates such a
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ARROWOOD, J., dissenting
conflict by prescribing duties to the Auditor in derogation of the executive power
vested in the Governor, and thereby impermissibly infringes on the separations of
power required by the Constitution.
II. Writ of Supersedeas
Our Supreme Court has already addressed this Court’s decision to issue writ
and staying the lower court’s order; however, I take the opportunity to discuss my
concerns with that decision and for how similar applications plainly lead to
unacceptable results.
“ ‘Supersedeas‘ is a writ issuing from an appellate court to preserve the status
quo pending the exercise of the appellate court’s jurisdiction, is issued only to hold
the matter in abeyance pending review, and may be issued only by the court in which
an appeal is pending.” City of New Bern v. Walker, 255 N.C. 355, 356 (1961) (citation
omitted).
Allowing a law overturned by a lower court to take effect does not preserve the
status quo. As Justice Dietz recognized, “[t]he effect of the writ was to permit a law
that had not yet taken effect to do so, despite a trial court judgment concluding that
the law was unconstitutional.” Stein v. Berger, 387 N.C. 575, 583–84 (2025) (Dietz,
J., concurring). The “status quo” preserved by this Court acts as though the lower
court does not exist and transforms the case into a consideration of whether the law
should be overturned after it has already taken effect.
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ARROWOOD, J., dissenting
I do not believe it was proper to issue such an extraordinary writ in a case of
this importance without providing any reasoning, analysis, or other explanation, and
without the benefit of any argument or briefing on the merits. I view this as a
significant deviation from both the common definition of status quo and in how this
Court addresses writ of supersedeas and other extraordinary writs. I am concerned
that continued application in this manner would see other lower courts ignored while
appeals are effectively decided during their pendency, or the normalization of
deciding extraordinary writs with no reasoning. This Court should have left the trial
court’s judgment undisturbed to preserve the status quo, rather than effectively
reversing the trial court during the pendency of the appeal which rather than
maintaining the status quo had the polar opposite effect.
While I believe that the trial court’s order should be affirmed and the power to
appoint the State Board and County Boards returned to its rightful place with the
Governor, I would not suggest that the Board be returned to the Governor in this
election cycle in light of the close proximity to the election and the disruption that
would be caused by reallocating the Board to the Governor at this stage. See, e.g.,
Purcell v. Gonzalez, 549 U.S. 1, 5–6 (2006) (“Given the imminence of the election and
the inadequate time to resolve the factual disputes, our action today shall of necessity
allow the election to proceed . . . .”); Pender Cnty. v. Bartlett, 361 N.C. 491, 510 (2007)
(“[T]o minimize disruption to the ongoing election cycle, the remedy . . . shall be
stayed until after the . . . election.”), aff’d sub nom. Bartlett v. Strickland, 556 U.S. 1
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ARROWOOD, J., dissenting
(2009); Griffin v. N.C. Bd. of Elections, 387 N.C. 386, 392–94 (2025) (Mem.) (Dietz, J.,
dissenting) (discussing importance of Purcell principle and settling election laws well
in advance of an election).
III. Apolitical Nature of the State Board
I agree with the majority that it is imperative that the Boards operate free of
political influence and interference. However, I am unpersuaded that the “apolitical”
design of the Boards is a meaningful or deciding factor that renders this legislation
constitutional where a similar re-assignment would otherwise not be. Despite its
design as a bipartisan entity, actions taken by the newly constituted State Board, the
Auditor and proposed changes to elections passed by the General Assembly suggest
a potential purpose for the change was to interject political interference into the
manner in which elections are conducted, rather than to execute the election laws
free from political influence and interference.
It is true that the Board members are prohibited from engaging in political
advocacy and fundraising among other things, but there are a number of exempt
employee positions for the Board, which the Executive Director Sam Hayes has
described as allowing him to quickly fill out senior leadership positions with less
restriction. Recent legislative efforts have sought to increase the number of exempt
employee positions. Additionally, the State Board has taken several actions intended
to be applied to the upcoming election, including elimination of Sunday voting during
the early-voting period in certain jurisdictions, elimination of polling places on
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ARROWOOD, J., dissenting
certain college campuses, and reducing the cure period for absentee ballots while also
making it easier to reject an absentee ballot with the votes of members of only one
party’s members as simple majority.
These actions all appear to be designed to make it more difficult for citizens,
who have historically voted in favor of candidates not favored by the majority of the
members or the Legislature or the Auditor, to vote. These efforts follow the Auditor’s
appointment of the current Board of Elections which in one of its first actions replaced
the Executive Director of the Board, a nineteen-year career employee of Board, with
the former General Counsel to the current Speaker of the House. The Auditor
additionally selected a former Executive Director of the North Carolina Republican
Party as the Elections Liaison of the Government Affairs Division, whose duties
included coordinating with county election board members throughout the State on
early voting plans.
None of these actions appear designed to promote boards of elections free from
political influence or interference. Thus, I am not convinced that we should afford
the reallocation of the State Board and County Boards any greater deference on the
basis of a bipartisan design than other boards or commissions that perform primarily
executive functions.
IV. Conclusion
Our Constitution charges the Governor with the duty to take care that the laws
be faithfully executed. By entirely removing from the Governor’s control the
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ARROWOOD, J., dissenting
administration and appointment power of the State Board and County Boards, SB
382 prevents the exercise of powers expressly reserved to the Governor by the
Constitution. See Harper v. Hall, 384 N.C. 292, 322 (2023).
I acknowledge the General Assembly has the authority under Article III,
Section 5(10) to prescribe the functions, powers, and duties of the administrative
departments. Here, however, the duties the General Assembly prescribed to the
Auditor are inconsistent with the executive power vested in the Governor.
Accordingly, the trial court was correct to conclude SB 382 is unconstitutional and
violates the separation of powers.
The majority opinion at times frames this case as a question of policy
preferences between the Governor and the Auditor. In my view, the more pertinent
prism through which to view this case is the constitutional duties that are expressly
prescribed, and the extent to which they are limited or prevented from being carried
out. It is not a matter of giving precedence to the Governor’s policy preferences over
the Auditor or the General Assembly; it is a matter of recognizing the duties reserved
by the Constitution. I respectfully dissent.
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