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3-judge panel explains decision to dismiss Cooper lawsuit over Board of Elections, Ethics

The superior court panel that dismissed Gov. Roy Cooper’s second lawsuit over the State Board of Elections and Ethics Enforcement said in an order released Tuesday that it lacked jurisdiction because of the political nature of the case.

“When assessing a challenge to the constitutionality of legislation, this court’s duty is to determine whether the General Assembly has complied with the Constitution,” the order states. “If constitutional requirements are met, the wisdom of the legislation is a question for the General Assembly.”

That panel was asked by the state Supreme Court to explain the basis for its earlier determination that it lacked jurisdiction to reach the merits of the claims advanced by Gov. Roy Cooper and address the issues that he raised on the merits.

Cooper sued the legislature over Senate Bill 68, which merged the State Board of Elections and the State Ethics Commission into one entity.

If the panel hadn’t dismissed the case, they would have ruled in favor of the legislators, according to the Tuesday order.

“[SB68] reserves no ongoing control to the General Assembly, and , therefore, the General Assembly neither exercises power that the Constitution vests exclusively in the executive branch nor prevents the Governor from performing his constitutional duties,” the document states. “Were the Governor given the degree of control he seeks over either the Board of Elections or the Bipartisan Board in this case, neither Board could continue to function as ‘an independent regulatory and quasi-judicial agency.'”

You can read the full 14-page order here.

Ford Porter, a spokesman for Cooper, indicated that the judges ruled in the case with credence to Republican threats to change the judiciary.

“This same three judge panel recently held that a similar law was unconstitutional. Since then, the Republican leaders in the legislature have issued sharp threats to our state’s judges,” he wrote in an email. “This case will ultimately be decided by our state’s Supreme Court and we have confidence that the Justices will disregard this intimidation, apply our state’s constitution, and declare this law unconstitutional.”

Republican legislative leaders praised the judges and urged Cooper to drop the lawsuit.

“We appreciate the court’s thoughtful and well-reasoned decision rejecting Roy Cooper’s attempts to drag his political battles into the courtroom, and we encourage him to abandon taxpayer-funded lawsuits and follow the bipartisan elections and ethics board law,” said Senate President Pro Tem Phil Berger and House Speaker Tim Moore in a joint statement.

Rep. David Lewis (R-Harnett) also released a statement on Twitter.

“The 3-judge panel recognized that Gov. Cooper’s demands would undermine the independence of our elections and ethics enforcement,” he wrote. “A [Governor] having the ability to completely control the members of the board that investigates his campaign and administration would make a mockery of the ethics reforms North Carolina has enacted since 2006.”

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