RALEIGH, N.C. — North Carolina’s highest court has decided it won’t fast-track appeals of results in two lawsuits initiated by Democratic Gov. Roy Cooper that challenged new laws that eroded his power to choose members of several boards and commissions.
The state Supreme Court, in orders released Friday, denied the requests from Republican legislative leaders sued by Cooper to hear the cases without waiting for the intermediate-level Court of Appeals to consider and rule first on arguments. The one-sentence rulings don’t say how individual justices came down on the petitions seeking to bypass the cases to the Supreme Court. Cooper’s lawyers had asked the court not to grant the requests.
The decisions could lengthen the process that leads to final rulings on whether the board alterations enacted by the GOP-controlled General Assembly in late 2023 over Cooper’s vetoes are permitted or prevented by the state constitution. The state Supreme Court may want to review the cases even after the Court of Appeals weighs in. No dates have been set for oral arguments at the Court of Appeals, and briefs are still being filed.
One lawsuit challenges a law that transfers the governor’s powers to choose state and local election board members to the General Assembly and its leaders. A three-judge panel of trial lawyers in March struck down election board changes, saying they interfere with a governor’s ability to ensure elections and voting laws are “faithfully executed.”
The election board changes, which were blocked, were supposed to have taken place last January. That has meant the current election board system has remained in place — the governor chooses all five state board members, for example, with Democrats holding three of them.
Even before Friday’s rulings, the legal process made it highly unlikely the amended board composition passed by Republicans would have been implemented this election cycle in the presidential battleground state. Still, Cooper’s lawyers wrote the state Supreme Court saying that bypassing the Court of Appeals risked “substantial harm to the ongoing administration of the 2024 elections.”
In the other lawsuit, Cooper sued to block the composition of several boards and commissions, saying each prevented him from having enough control to carry out state laws. While a separate three-judge panel blocked new membership formats for two state boards that approve transportation policy and spending and select economic incentive recipients, the new makeup of five other commissions remained intact.
Also Friday, a majority of justices rejected Cooper’s requests that Associate Justice Phil Berger Jr. be recused from participating in hearing the two cases. Cooper cited that the judge’s father is Senate leader Phil Berger, who is a defendant in both lawsuits along with House Speaker Tim Moore. In June, the younger Berger, a registered Republican, asked the rest of the court to rule on the recusal motions, as the court allows.
A majority of justices — the other four registered Republicans — backed an order saying they didn’t believe the judicial conduct code barred Justice Berger’s participation. The older Berger is a party in the litigation solely in his official capacity as Senate leader, and state law requires the person in Berger’s position to become a defendant in lawsuits challenging the constitutionality of state laws, the order said.
The court’s two registered Democrats — Associate Justices Allison Riggs and Anita Earls — said that the younger Berger should have recused himself. In dissenting opinions, Riggs wrote that the code’s plain language required his recusal because of their familial connection.
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