## Facts

- After the 2016 gubernatorial election, the North Carolina General Assembly enacted legislation restructuring state administration of elections and ethics by creating a single regulatory body, the Bipartisan State Board of Elections and Ethics Enforcement (Bipartisan State Board).
- Session Law 2017-6 consolidated oversight of elections, campaign finance, lobbying, and ethics in the Bipartisan State Board and prescribed detailed rules for its membership and the Governor’s appointment authority.
- The law created an eight-member board with an equal partisan split: four members from the largest registered political party and four from the second largest.
- The Governor’s appointment authority was constrained to selecting board members from lists supplied by the state chairs of the two major political parties, limiting the Governor’s discretion over the board’s composition.
- The Governor’s removal authority was limited to specified cause-based grounds (such as misfeasance, malfeasance, or nonfeasance), rather than at-will removal.
- The Bipartisan State Board was granted substantial regulatory, investigative, enforcement, and quasi-judicial authority, including the ability to impose sanctions and to refer matters for prosecution in areas tied to administration of state law.
- Governor Roy A. Cooper III vetoed the legislation, but the General Assembly overrode the veto; the Governor then sued in his official capacity, alleging the law violated the state constitution’s separation-of-powers provisions and the Governor’s duty to “take care that the laws be faithfully executed.”
- A three-judge superior-court panel dismissed the complaint as presenting a nonjusticiable political question and for lack of standing; after remand for a supplemental order, the panel additionally concluded the law was not unconstitutional on its face.

## Issues

1. Whether a separation-of-powers challenge by the Governor to statutory limits on executive appointment and control presents a nonjusticiable political question.
2. Whether the Governor has standing, in his official capacity, to assert an institutional injury to his constitutional duty to faithfully execute the laws.
3. Whether provisions of Session Law 2017-6 governing the membership, appointment constraints, and removal protections for the Bipartisan State Board unconstitutionally interfere with the Governor’s ability to faithfully execute the laws under the North Carolina Constitution.

## Decision

- The Supreme Court of North Carolina reversed the dismissal, holding the claims were justiciable and not barred by the political question doctrine.
- The Court held the Governor had standing because the challenged provisions directly affected his ability to perform constitutionally assigned executive responsibilities.
- On the merits, the Court held that Session Law 2017-6’s provisions governing the membership of and appointments to the Bipartisan State Board impermissibly interfered with the Governor’s ability to faithfully execute the laws and violated state separation of powers.
- The Court invalidated the specific provisions concerning board membership and appointments rather than invalidating the entire concept of a consolidated elections-and-ethics board.

## Legal Principles

- Interpretation and enforcement of state constitutional separation-of-powers limits is a core judicial function; structural constitutional claims are generally justiciable even when they involve disputes between political branches.
- An executive officer has standing to challenge legislation that concretely impairs the officer’s ability to carry out constitutionally assigned duties, including the Governor’s duty to ensure faithful execution of the laws.
- Under the North Carolina Constitution, the General Assembly may not structure a powerful executive-branch agency in a manner that substantially impairs the Governor’s ability to supervise execution of the laws.
- Limits on the Governor’s practical control over an executive agency may be unconstitutional when the combined effect of appointment restrictions and removal protections prevents meaningful executive accountability over core executive functions.

## Conclusion

The court held that the Governor’s separation-of-powers challenge was justiciable and that he had standing, and it invalidated statutory provisions that constrained the Governor’s appointment and control of a powerful elections-and-ethics board because they interfered with the Governor’s constitutional duty to faithfully execute the laws.


Cooper v. Berger, 809 S.E.2d 98 (N.C. 2018)