Different names, same fight over separation of powers in NC government

Names have changed at the top of North Carolina’s executive branch and one of its two legislative chambers. Yet that doesn’t mean the end of legal battles pitting the top executive against top lawmakers.

After a series of courtroom cases titled Cooper v. Berger in recent years, North Carolinians should anticipate new skirmishes called Stein v. Hall.

Josh Stein succeeded fellow Democrat Roy Cooper as North Carolina’s governor on Jan. 1. At the same time, Rep. Destin Hall, R-Caldwell, succeeded Tim Moore, R-Cleveland, as speaker of the House of Representatives.

Among the top three leaders of state government’s political branches, only the Senate president pro tempore remains unchanged. Sen. Phil Berger, R-Rockingham, enters his 15th year in that post.

Moore and Cooper were approaching their final days in office when executive and legislative leaders launched their latest legal battles.

Senate Bill 382, enacted on Dec. 11 over Cooper’s veto, combined Helene relief measures with multiple structural changes within North Carolina government. Those changes have prompted three different lawsuits to date.

One extends a dispute that dates back to Cooper’s earliest days as governor in 2017. Legislative leaders have tried in multiple ways to remove the State Board of Elections from the governor’s control.

Courts have shot down prior attempts to replace a five-member elections board weighted toward the governor’s party with an eight-member board split evenly between Republicans and Democrats. A Cooper v. Berger lawsuit targeting elections board changes was heading toward the North Carolina Court of Appeals when SB 382 intervened.

That legislation moved the existing state elections board under the authority of new State Auditor Dave Boliek, a Republican. That decision mooted the prior fight over an evenly split board. Yet neither Cooper nor Stein accepted legislators’ latest election board plan.

The outgoing and incoming governor went to court to modify Cooper’s earlier lawsuit. Now Stein continues to pursue the case on his own. A Jan. 28 court filing traded the Cooper v. Berger name for Stein v. Hall.

Cooper and Stein also joined forces to challenge a provision in SB 382 involving the State Highway Patrol. The law would block Stein from appointing a new patrol commander at any time during his term. The new governor is fighting that change in a separate Stein v. Hall lawsuit.

A third case focuses on changes to gubernatorial appointments and oversight of North Carolina’s Building Code Council.

Before SB 382, the governor could fill a vacancy on the state Supreme Court or the state Court of Appeals with no restrictions. Associate Justice Allison Riggs, now embroiled in a separate court battle over the 2024 election, first joined both the Appeals Court and Supreme Court thanks to Cooper’s appointment power.

Under the new law, Stein must fill statewide judicial vacancies with a candidate sharing the party affiliation of the departing judge or justice. Plus the governor must choose from three names submitted by the political party’s executive committee.

A Stein v. Hall lawsuit filed on Feb. 7 targets that change, along with a provision of SB 382 that shifts an appointment to the North Carolina Utilities Commission from Stein to new state Treasurer Brad Briner, a Republican.

The same suit targets another law that changes voting rules for the Building Code Council. While Stein can appoint a majority of council members, a supermajority must approve any action, “preventing the Governor from performing his core constitutional function” of faithfully carrying out state laws, according to Stein’s lawyers.

In the governor’s view, the General Assembly “sought once again to take for itself powers that the people have assigned to other branches of government.” Lawmakers “acted to curtail core executive authority that the voters, through the election and our State Constitution, vested in the Governor.”

As in prior Cooper v. Berger fights, state lawmakers approach the Stein v. Hall lawsuits from a different perspective. They believe state laws assigned the disputed powers to the governor. Thus new state laws can reassign those powers.

North Carolina’s courts will settle the disputes. Results of earlier battles have been mixed.

Cooper successfully blocked previous elections board changes. He prevented some — but not all — shifts in other government board appointments. Meanwhile, courts have affirmed the legislature’s right to confirm top gubernatorial appointments. The judicial branch also rejected Cooper’s attempt to bypass lawmakers for control of federal block grant spending.

Like Cooper v. Berger battles before them, the Stein v. Hall disputes could clarify the power of North Carolina’s governor and top legislators for years to come.

Mitch Kokai is senior political analyst for the John Locke Foundation.