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Board of Elections backs AG’s office in constitutional amendments case

August 11th, 2018

— In a vote divided along party lines Saturday, the State Board of Elections and Ethics Enforcement threw at least some of its weight behind the way the state Attorney General’s Office has represented it in ongoing lawsuits over constitutional amendments.

The Saturday meeting, held via teleconference, followed some back and forth over just where the board stands on a key issue in those lawsuits: whether the ballot language before voters this November fairly describes the constitutional amendments they’ll be voting on.

Saturday’s vote didn’t entirely clear that up. Everyone could see something in the language.

The state’s solicitor general suggested to a Superior Court judge hearing arguments this week that the board considers some of that language, written by the General Assembly’s Republican majority, to be misleading. The issue puts the board between a rock and a hard place, Solicitor General Matt Sawchak said: The board has to carry out laws passed by the General Assembly, and it’s meant to be politically neutral, but it’s also tasked with preparing ballots that are fair and understandable.

The next day, board staff distanced the board from Sawchak’s descriptions of the amendments. The state Republican Party questioned the solicitor general’s authority to advance the argument on the board’s behalf, suggesting that Attorney General Josh Stein’s office had gone rogue.

Saturday’s board vote, held after a closed session to discuss a number of pending lawsuits, was meant to address that. Board Chairman Andy Penry said during the meeting that the Attorney General’s Office consulted with the board before the hearing and that members had a chance to review what the office filed in court before it was filed.

Then, on a 5-4 vote, the board agreed “to approve and, to the extent necessary, ratify the actions of the Attorney General in the representation of the Board and its members and employees in the … litigation and, to the extent necessary, expressly authorize the Attorney General to represent the interests of the Board, its members and employees as he believes proper and in accordance with law.”

The board’s four Democrats voted for the measure, the four Republicans against. The lone unaffiliated member, who was appointed by Democratic Gov. Roy Cooper, sided with the Democrats, as he has on numerous occasions since this board was reconstituted in March in the wake of other lawsuits over its makeup.

Among the issues in that series of lawsuits: just how the elections board and the executive branch interact and where everyone’s authority ends. One of the amendments before voters in November would rework the board again, putting appointment power in the legislature’s hands.

State GOP Executive Director Dallas Woodhouse said Saturday that Cooper and Stein are dictating the board’s position and that Saturday’s vote gives them cover to do so. Republican board members expressed disappointment with the partisan split without disputing that the Attorney General’s Office is empowered under the law to represent the board as it sees fit, absent other direction from the board.

The board’s full name is the Bipartisan State Board of Elections Ethics Enforcement, and Republican member Ken Raymond said it should change that to the North Carolina Partisan Board of Elections.

“This board is not living up to its name,” Raymond said.

Many of the board’s votes on early voting plans, taken last Sunday in a marathon evening meeting, broke on these same partisan lines, often overturning bipartisan decisions made at the local level in order to increase weekend voting hours.

Board Democrats said honest disagreements aren’t necessarily evidence of partisanship. Unaffiliated member Damon Circosta said the board has a duty to make sure ballot language is “crystal clear.” Republican member John Lewis, who is also a former attorney for the state Republican Party, said Saturday’s motion wasn’t needed at all because the attorney general already has authority to represent the board.

“I can’t dispute that,” he said. “That’s what the law is.”

Lewis took issue with using the word “ratify” in the board’s statement, saying it makes it sound like the board is also backing the attorney general’s position on whether the amendment language is misleading.

“It walks like a duck. It quacks like a duck. It’s a duck,” Lewis said.

Penry said he was satisfied with the language and that it only goes so far.

“I think ‘ratify’ says that they have the authority,” he said.

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