Appeals Court takes on NC elections board appointments dispute
Control over appointments to North Carolina’s State Board of Elections depends on the outcome of a legal dispute that headed to the state’s second-highest court Tuesday afternoon.
A three-judge North Carolina Court of Appeals panel heard nearly an hour of oral arguments in a case called Stein v. Berger or Stein v. Hall.
Gov. Josh Stein, a Democrat, is asking appellate judges to reverse previous court orders that allowed Republican legislative leaders to shift elections board appointments last spring to State Auditor Dave Boliek, a Republican.
Stein hopes the Appeals Court will reinstate a trial court decision last year favoring the governor. Trial judges ruled that the elections board appointment shift was unconstitutional.
“The legislature’s position is that there are no limits on their power to assign executive duties on the Council of State,” argued Eric Fletcher, the governor’s lawyer. “They say that they can assign — tomorrow — election administration to the commissioner of agriculture, that they could send agricultural policy to the commissioner of insurance, and they could assign roadbuilding to the superintendent of public instruction.”
The General Assembly cannot assign a Council of State member powers that fall outside his office’s main duties, the governor argues.
“The people are not electing a series of executives who are interchangeable with one another,” Fletcher said. “They are electing individuals to fulfill specific positions created in our constitution.”
Stein’s lawyer warned that state lawmakers could shift election appointments again if voters select a new state auditor.
“With the power they claim here, and following the facts that led to this case, the General Assembly would be free to effectively ignore the election results and just reassign the authority to appoint the Board of Elections to any other Council of State member of their choosing,” Fletcher said. “This is inconsistent with the separation of powers, and it’s inconsistent with popular sovereignty that is the source of all political power in our state.”
The dispute pits Stein against Senate Leader Phil Berger, R-Rockingham, and House Speaker Destin Hall, R-Caldwell. Boliek is also taking part in the case to defend the appointment shift.
Lawmakers argue that the state Constitution gives them the power to assign duties to elected members of the Council of State, including Boliek. Those duties could include elections appointments.
“At bottom, it’s a policy decision that belongs to the General Assembly to determine which Council of State member gets which statutory duty when you’re not dealing with one that’s specifically assigned to a specific constitutional officer,” argued Matthew Tilley, who represented legislative leaders.
Stein “needs to find an express provision of the Constitution that explicitly prohibits the General Assembly’s decision in this case. He can’t do it,” Tilley argued.
Even if the court decides that the elections board appointments must fit with an elected official’s “core duties,” the shift to the auditor still works, Boliek’s lawyer argued.
“The auditor’s role has expanded vastly and quickly over the years,” said Alex Dale. “It’s much more of a transparency role, a government accountability role. That is precisely what an independent board like the State Board of Elections needs in terms of who handles the appointments there.”
Appellate Judges Valerie Zachary, John Arrowood, and April Wood will decide the case. Zachary and Wood are Republicans. Arrowood is a Democrat running for re-election this year.
“Does the legislative reallocation of duties render all the members of the Council of State fungible?” Zachary asked minutes into the proceeding.
“Doesn’t our constitution provide … by giving the legislature plenary power … they can manipulate things if they want to, and the public’s remedy is to not re-elect those legislators?” she asked later in the argument.
“You would contend … that the General Assembly has the power to move any and all the functions that the governor now does to someone else in the Council of State without any judicial oversight because those would be political questions and therefore not justiciable. Isn’t that the base of your argument if we get all the way to the bottom of it?” Arrowood asked the legislative leaders’ lawyer.
“Yes, sir, except say those duties that are expressly given to the governor in the Constitution,” Tilley responded. He cited constitutional provisions that created the governor’s commander-in-chief and clemency powers.
“Section 1 says the executive power of the state shall be vested in the governor, too, does it not?” Arrowood replied.
Stein challenges the portion of 2024’s Senate Bill 382 that shifted control of elections board appointments from the governor to the auditor. The governor argues that the appointment shift from his office to Boliek’s office violated the North Carolina Constitution.
Boliek’s lawyer filed a Jan. 22 court document urging appellate judges to consider their court’s Jan. 7 ruling in another case called Stein v. Hall. In that case, the Appeals Court sided with legislative leaders and against Stein in a dispute over judicial appointments and a shift of a state Utilities Commission appointment from Stein to State Treasurer Brad Briner, a Republican. Those changes also were spelled out in SB 382.
The earlier Stein v. Hall decision “relates to the arguments raised concerning intra-branch transfers of appointment powers within the Council of State,” wrote Alex Dale, Boliek’s lawyer.
A different three-judge Appeals Court panel issued an April 2025 order blocking a lower-court ruling favoring Stein in the elections board dispute. Judges Julee Flood, Michael Stading, and Thomas Murry issued the 2025 order. All are Republicans.
Republicans outnumber Democrats, 12-3, on the state’s second-highest court.
The Appeals Court’s 2025 order — called a writ of supersedeas — paved the way for Boliek to make new appointments to state and county elections boards. The state Supreme Court later split, 5-2, in upholding appellate judges’ decision. The decision split the high court’s justices along party lines. The five Republicans made up the majority. The two Democrats dissented.
Boliek’s appointments shifted elections board majorities from 3-2 in Democrats’ favor to 3-2 Republican majorities. Among the new state elections board’s first actions was the ouster of executive director Karen Brinson Bell and her replacement with Sam Hayes.
The 2025 Appeals Court order blocked a three-judge trial court panel’s ruling favoring Stein. The trial court would have invalidated the portions of SB 382 that shifted elections board appointments from Stein to Boliek.
The trial court panel “unambiguously misapplied this Court’s precedent,” the state Supreme Court majority wrote in May 2025. No justice is listed as writing the order.
“It is well settled that the state constitution apportions executive power among the ten individually elected officers of the Council of State, led by the Governor,” the order explained. “In other words, the Governor heads the executive branch but does not unilaterally exercise the executive power.”
Previous Supreme Court rulings pitting the governor against state legislative leaders “have carefully and deliberately explained” that they did not address how the state constitution’s Separation of Powers clause applies to Council of State members like Boliek.
The three-judge panel “mistakenly concluded” that the earlier cases controlled the outcome of the current legal battle. “Having noted the three-judge panel’s plain misapplication of our caselaw, we cannot conclude that the Court of Appeals abused its discretion by temporarily staying the order pending full appellate review,” the court majority agreed.
“Although some executive functions, powers, and duties are exclusive to one of the ten Council of State members, others could plausibly be assigned to several, or even all, of the ten,” the court order added.
Two Republican justices who supported the decision wrote concurring opinions.
“Executive power in North Carolina is not concentrated in one individual or office,” Justice Phil Berger Jr. wrote. “The governor does indeed wield the bulk of what is considered executive authority. But unlike the federal system, our constitutional structure is designed to scatter executive power amongst the governor and nine other statewide elected officials, collectively known as the Council of State. Thus, the intent of the people as expressed in the constitution was and is the diffusion of power in the Executive Branch.”
“Here, the intra-branch transfer of the Board of Elections to the State Auditor does not appear to delegate a core function of the office of the governor; nor does the transfer of authority disable the executive branch from functioning,” Berger added. “Because the mere reallocation of this authority within the Council of State is expressly contemplated in the constitution, we may lack the authority to limit the legislature’s actions here.”
“But the weighty constitutional questions are for another day,” Berger wrote.
Justice Richard Dietz wrote that “this case presents a much closer legal question than either the Governor or the General Assembly seems to think it does.”
When evaluating the shift of elections oversight to the state auditor, Dietz sees “arguments on both sides.”
“Unfortunately, the trial court’s order did not grasp any of this legal complexity, or any of the constitutional doctrine that underpins it,” Dietz wrote. “The trial court sided entirely with the Governor’s extreme position, reasoning that it ‘makes no difference to the constitutional analysis’ that the challenged law ‘transfers the Governor’s authority to the Auditor, rather than the General Assembly.’”
Trial judges determined that only the governor had the authority to ensure that state election laws are faithfully executed. “This reasoning is plainly wrong; all Council of State members have a constitutional duty to ensure that the laws for which they are responsible are faithfully executed,” Dietz responded.
“[T]he trial court’s reasoning could create an executive-branch earthquake that forcibly reorganizes huge portions of the administrative state,” he warned. “If the Governor were truly the only constitutional officer who can ensure that laws passed by the General Assembly are faithfully executed, it could upend everything from the Commissioner of Labor overseeing elevator inspections to the Commissioner of Agriculture presiding over the State Fair.”
Despite his concerns, Dietz disagreed with the Appeals Court issuing its April 2025 order without explanation. That order allowed Boliek to move forward with his appointments. “It would create quite a mess to try to unring that bell through our own extraordinary writ,” he wrote.
Both of the Supreme Court’s Democrats wrote dissents.
Justice Anita Earls accused the majority of engaging in a “disingenuous act of double-speak, also known as gaslighting.”
“I disagree with the majority’s new and destabilizing constitutional rules which threaten public accountability over our state government, and with its mistreatment of the litigants in this case who have been denied the opportunity to argue their case before our Court prejudges the merits,” Earls wrote. “If the voters of North Carolina wanted a Republican official to control the State Board of Elections, they could have elected a Republican Governor. If they wanted David Boliek (the Auditor) in particular to run our elections, they could have elected him Governor.”
“The voters did not. They hired Joshua Stein and David Boliek to do specific jobs, and the General Assembly is without the power to thwart the voters’ will by restructuring those jobs after the election,” Earls added.
“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,” Earls wrote.
Justice Allison Riggs noted her colleagues’ “almost month-long delay” in addressing Stein’s request to block the Appeals Court’s initial ruling favoring Boliek. The majority’s order allowed SB 382’s challenged provisions — “that a panel of superior court judges found to be unconstitutional beyond a reasonable doubt” — to take effect.
“The majority frames this as allowing a law to ‘remain intact,’” Riggs wrote. “Instead, the majority is rewriting precedent and creating an explanation for an unexplained Court of Appeals order in an effort to upend 125- years status quo for the North Carolina State Board of Elections while this case winds its way through the courts. The decision to allow this statute found to be unconstitutional to go into effect runs contrary to this Court’s precedent and threatens to erode the integrity of the judicial branch.”
Stein asked the state Supreme Court to step into the case. He originally sought a court order before May 1, 2025, when SB 382 called for Boliek to make new state elections board appointments.
Boliek urged the high court to keep the Appeals Court’s order in place.
“As the member of the Council of State specifically charged with ensuring government efficiency and transparency, the Auditor has a strong interest in seeing the Board of Elections function properly and lawfully. The General Assembly has given him that responsibility,” Boliek’s lawyers wrote in a court filing.
“Appeals Court takes on NC elections board appointments dispute” was originally published on www.carolinajournal.com.
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