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UPDATED: Cooper files new lawsuit after state Supreme Court declines to clarify elections, ethics merge mandate

This story has been updated to reflect information from the new lawsuit.

The state Supreme Court declined Tuesday to clarify its mandate regarding the merging of the State Board of Elections and State Ethics Commission.

Gov. Roy Cooper, who made the request, filed a new lawsuit the same day over House Bill 90, an omnibus measure that lawmakers passed in February to address the high court’s concerns over the merger.

The new lawsuit was filed in Wake County Superior Court. In the suit, Cooper seeks to prevent the implementation of part of HB90 and cites separation of powers violations.

“This General Assembly’s continued, direct attacks on executive authority unconstitutionally infringe on the Governor’s executive powers in violation of separation of powers,” it states.

The Supreme Court reversed a three-judge panel’s decision to dismiss Cooper’s recent lawsuit over the merge but sent the case back to the panel to sort out the details. The panel last week delivered a narrow interpretation, striking down the parts of the law dealing with membership and appointment to the merged agency.

Cooper then asked the Supreme Court to clarify it’s original mandate, believing that the merge should be struck down entirely. The high court denied his request and new litigation was filed.

HB90 added a ninth seat to the merged board, but left the decision about that seat in the hands of the original eight-member structure — four Democrats and four Republicans. Cooper can make appointments to the board based on names recommended by both parties but he must appoint the ninth seat based on two names provided by the original eight members.

“This means that the Governor will be unable to ensure that a majority of the New State Board is made up of members who share the Governor’s views and priorities,” the new lawsuit states.

Rep. David Lewis (R-Harnett) criticized Cooper over the new lawsuit  in a joint statement with Sen. Ralph Hise (R-Mitchell).

“Today’s lawsuit — filed against a bill the governor pledged he would allow to become law — tries to stop not only the bipartisan elections enforcement that 80 percent of North Carolinians want, but potentially also jeopardizes class size funding and more than $57 million in additional funds for school children in Eastern North Carolina,” they said.

The GOP response tying in school funding is one that many predicted would happen when lawmakers rolled class size funding, elections and ethics board issues and Atlantic Coast Pipeline funding into one bill. It appears, however, that Cooper only seeks to enjoin the section of HB90 that deals with the merged Board.

The new lawsuit marks the third one filed over the merged Board, which was created by GOP lawmakers in the wake of Cooper’s election.

Follow NC Policy Watch for updates as they become available.

2018 Cooper v. Berger by NC Policy Watch on Scribd

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