After a three-judge panel denied his request yesterday, Gov. Roy Cooper filed a petition and motion  asking the state Court of Appeals to temporarily prevent the merging of the State Board of Elections and State Ethics Commission.
Cooper sued legislative leaders over Senate Bill 68 , arguing that the structure of the new board created under the law violates the Separation of Powers clause in the Constitution as well as the non-delegation doctrine.
The three-judge panel in Wake County Superior Court dismissed his lawsuit  over jurisdictional issues about two weeks ago. Cooper then filed a notice of appeal  and asked the same panel to halt creation of  the new board pending that appeal — they denied the request .
The same panel ruled in Cooper’s favor in his first lawsuit over the merge, but instead of appealing, lawmakers re-wrote the law and passed a similar bill, SB68, creating a new “bipartisan” board that combines the duties of the Board of Elections and Ethics Commission.
Cooper’s new request of the Court of Appeals is a typical next step in the appeals process.
In the document, he argues that the panel’s decision dismissing the lawsuit was wrong and without explanation.
“As detailed below, the panel’s decision contravenes more than 100 years of settled North Carolina jurisprudence holding that courts have a duty to resolve constitutional challenges arising from what a statute allows, not simply how that statute is actually being exercised. Moreover, it contradicts the same panel’s ruling in Cooper I, an almost identical case it decided just a few months earlier.
Allowing the [three-judge panel’s] Order to stand would have grave consequences for the State’s constitutional system of checks and balances and would render the separation of powers clause of our constitution nugatory. Put simply, if the judicial branch of government does not have subject matter jurisdiction to decide whether a statute allows the legislative branch to encroach on the powers of the executive branch, then the constitutional restraints on legislative power will be unenforceable.”
Cooper argues in the document that if the merge is not put on hold pending his appeal, there will be substantial harm.
“However, if the Act is allowed to continue to have effect during the Governor’s appeal, the unconstitutionally structured New State Board will be in place for the 2017 election cycle and, most likely, the 2018 election cycle. As a result, if the Act is ultimately found to be unconstitutional, for at least two election cycles the Governor will have suffered the constitutional harm of the General Assembly — through the Act — preventing him from his core duty to ensure faithful execution of the State’s elections and ethics laws.”