North Carolina Court Enables a Partisan Shift on State Elections Board 

UPDATE: On May 23, the North Carolina Supreme Court allowed the appeals court order to stand while the litigation continues. Justices Anita Earls and Allison Riggs issued sharply worded dissents. The decision “threatens to erode the integrity of the judicial branch,” Riggs wrote. 

Last week, the North Carolina Court of Appeals upheld the legislature’s power grab over the State Boards of Elections, the agency charged with administering elections, campaign finance disclosures, and all 100 county election boards.

For nearly a century, North Carolina’s governor has had the exclusive power to appoint a majority of the state board of elections from the governor’s own party and to appoint a majority of members of county election boards. As 2024 ended, the lame-duck legislature — over gubernatorial veto — transferred that appointment power from the governor, currently a Democrat, to the state auditor, currently a Republican.

At the same time, the state board’s role gained national attention. Judge Jefferson Griffin, who lost his state supreme court race, petitioned the board to throw out more than 60,000 votes. The board dismissed his challenges, leading to a six-month court battle before he conceded Wednesday.

Even with Griffin’s challenge concluded, the sudden shift in who gets to appoint majorities of state and county elections boards could affect voter access for elections as early as this fall. And it reflects a troubling pattern of using courts and legislatures to undermine elections.

How the Law was Passed

In 2016, Roy Cooper, a Democrat, won the governorship. Republican state lawmakers have since tried repeatedly to take away the governor’s power to appoint members of the state and county boards of elections. First they tried by passing a law. A state court deemed the law unconstitutional. They tried again in 2018 via constitutional amendment. Voters rejected it. Then, in 2023, they tried via a new law that was also deemed unconstitutional.

The most recent effort began two weeks after the 2024 election. After Gov. Josh Stein, a Democrat, was elected to replace Cooper, Republicans enacted — over Cooper’s veto — Senate Bill 382. The new law shifted the power to appoint members of the state board of elections to the state auditor. Cooper challenged the law in state court.

On April 23, in a 2–1 decision, a three-judge panel ruled the law was unconstitutional. “Because the duty to faithfully execute the laws has been exclusively assigned to the governor, Senate Bill 382 cannot reassign that duty to the auditor without violating the constitution,” the majority — comprised of one Republican and one Democrat — wrote. State auditor Dave Boliek and Republican legislative leaders appealed.

The next week, on April 30, with no briefing or oral argument, the state court of appeals issued a unanimous, unsigned order blocking the trial court’s decision. (Stein has asked the state supreme court to review and reverse the appellate court’s decision.) On May 1, the day after, and with the previous board’s terms expiring on April 30, Boliek wasted no time in naming two new Republican board members, changing the board to a 3–2 Republican majority.

Why It Matters

Who sits on North Carolina’s state and county elections boards affects who gets to make decisions that could limit or expand voting access. Indeed, the state board’s role in Griffin’s election dispute shows why this matters. And the legislature’s reallocation of control upends a basic democratic principle: When a party loses an election, it shouldn’t be able to alter the distribution of power to extend its influence.

The Boards’ Roles in Ensuring Voter Access

State and county elections boards make decisions that affect how, when, and where North Carolinians can vote. For example, each five-member county elections board must unanimously agree on its early voting plans. If it can’t, the state board resolves disputes.

State and county boards also work together to support voters: After Hurricane Helene hit just before the 2024 election, large festival tents were set up to serve voters where buildings had washed away. State board resolutions allowed voters in the 25 counties affected by the hurricane flexibilities for voting. As a result of these efforts, turnout was nearly 75 percent in the affected counties, two percentage points higher than overall statewide turnout.

A Case Study: Griffin’s State Supreme Court Challenge

The state board’s role in a recent election contest demonstrated the importance of its independence.

After a narrow loss to his opponent, Justice Allison Riggs (D), for a seat on the state’s high court, Griffin sought to overturn the results.

Two post-election recounts affirmed that Riggs won by 734 votes. Griffin responded by filing hundreds of election protests statewide, contesting the ballots of over 60,000 voters. These challenges reflected an effort to change the state board’s rules for the election after it had taken place. The state board dismissed Griffin’s claims and said the election should be certified. Griffin sued.

After six months of litigation, a federal court ruled that Griffin’s challenges (and the state court decisions in his favor) would violate the federal constitutional rights of the challenged voters. Two days later, Griffin finally conceded.

The state board’s interpretations of election rules, however, could have impacted the election. For example, the state board of elections determined that Griffin only protested the overseas ballots of a single county on time. The state high court later endorsed Griffin’s challenges to thousands of overseas ballots, but without specifying the number of affected ballots. Had the board changed its position — as Griffin urged — the number of protested overseas votes would have grown from about 1,400 to 5,000. Throughout the hotly contested litigation, the state board defended the rules that voters followed. An abrupt change in leadership for partisan gain could have led to a different outcome.

Reflecting a Power Grab, Both in North Carolina and Nationally

The North Carolina legislature’s move to shift appointment power — and the state appeals court’s endorsement of that shift — reflects a concerning trend: Losing parties transferring power to themselves before the other party comes into office.

That trend extends beyond North Carolina. In 2018, after Democrats were elected to the governorship and other statewide offices in Wisconsin, the Republican-controlled legislature passed last-minute measures to strip control of multiple state agencies from the governor. That same year, Michigan Republicans similarly proposed stripping oversight of state campaign finance laws from the secretary of state after a Democrat took office. (The Michigan bill passed the state senate but died in its house.)

In North Carolina, the Republican legislature used its last days of a veto-proof supermajority to shift appointment power to the Republican state auditor — a financial officer who has never had authority over elections in the state. Given this context, the legislature’s power grab seems designed to send the message that the state and county election boards should act in a partisan fashion. But the boards are supposed administer elections for all voters across the state, not to advance policies believed to benefit one party over the other.

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Voters rely on state and county boards of elections to protect and ensure access to the ballot. When a court endorses an attempt to change those boards’ members purely for partisan gain, it signals to voters that politics trumps voting access. That message has troubling consequences for our democracy.

Justin Lam is a counsel at the Brennan Center for Justice.

Suggested Citation: Justin Lam, North Carolina Court Enables a Partisan Shift on State Elections Board, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 8, 2025), https://statecourtreport.org/our-work/analysis-opinion/north-carolina-court-enables-partisan-shift-state-elections-board