Gene Nichol: Clear and present danger
Published 12:00 am Thursday, June 12, 2025
By Gene Nichol
As most folks in North Carolina know, our state Supreme Court is a problem. In April, the Republican majority shocked election law experts, constitutional lawyers and judges across the country by trying to steal an election for Jefferson Griffin.
A Trump-appointed federal judge, Richard Myers, put a stop to it. Judge Myers stated the case simply — asking whether the constitution “permits a state to alter rules of an election after the fact and apply those changes retroactively to only a select group of voters.” Myers said obviously no. Republican justices Newby, Berger, Barringer and Allen decided it was fine — in service of the Republican cause.
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They’re at it again.
When Tar Heels committed the sin of electing a Democratic governor last November, Sen. Phil Berger returned to the North Carolina two-step — taking away central powers of the governor and giving them to folks Berger likes better. In the most visible of those efforts, Berger shifted the governor’s long-standing constitutional power to appoint members of the State Board Elections to the state auditor, newly elected Republican, David Boliek. This has never happened in the United States. We’re pioneers in constitutional transgression.
Governor Stein immediately sued, and a Raleigh court quickly declared the power grab unconstitutional. The legislature can’t “reassign (the governor’s) duty to faithfully execute the laws to the auditor.” High school civics stuff.
A week later, a Court of Appeals panel, without argument or explanation, issued a one-page order overturning the decision, allowing the auditor transfer to go into effect the next day. The governor sought an immediate injunction in the Supreme Court to block the unusual order. Stein argued the ruling “posed a threat to democracy and the rule of law.”
Despite intervening repeatedly in the Griffin case in violation of rules of appellate practice, the N.C. Supreme Court went into an unfamiliar radio silence. For nearly a month, the high court refused to act and refused to explain its inaction. In the meantime, David Boliek forgot his campaign promise to “leave party politics at the door” and appointed two of the most partisan people ever to live in North Carolina, Bob Rucho and Francis de Luca, to the board. The new outfit then fired the executive director, making the partisan takedown complete.
On May 21, the Republican Supreme Court let the whole mess stand. In an unsigned order, masked as a temporary procedural ruling, the majority “crafted an entirely new framework for executive power, unmoored from precedent or party briefing.” According to the dissenters, the decision threw out a hundred years of precedent “in service of partisan ends.”
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Justice Anita Earls explained the court’s disingenuous steps simply, as Myers had done in the Griffin case:
“If the voters of North Carolina wanted a Republican official to control the Board of Elections, they could have elected a Republican governor. If they wanted (Auditor) Boliek to run our elections, they could have elected him governor. The voters did not. The General Assembly may not grab power over enforcement of election laws by shuttling the board between statewide elected officials until it finds one willing to do its bidding.”
We can now prepare, Earls noted, for the “agriculture commissioner to represent the state in criminal appeals, the attorney general to supervise the health care plan, and the treasurer to run the state fair.”
There is a nice kinship though. No other state in the country has ever decided to have elections overseen by the auditor and no other court in the country would permit it.
The N.C. Supreme Court is a clear and present danger to constitutional democracy.
Gene Nichol is a professor of law teaching courses in the constitution and federal courts at the University of North Carolina School of Law.