The North Carolina State Supreme Court will hear oral arguments in Cooper v Berger on Monday, August 28, the first day the Court is back from its summer recess. The issue is the constitutionality of SB 68, passed this year by the legislature to alter the structure of the State Election Board and county election boards. Governor Roy Cooper, a Democrat elected in 2016, is suing the leaders of the Republican-majority state legislature. The Governor lost the lawsuit in the trial court. The North Carolina Supreme Court is allowing the mid-level State Court of Appeals to be bypassed.

SB 68 says that the State Board of Elections (renamed the “North Carolina Bipartisan State Board of Elections”) will consist of eight members. Four are members of the party with the most registered members, and four are members of the party with the second-greatest registration. The law also says that the party with the second-highest registration can hold the chair in years divisible by four. In North Carolina, the Democratic Party has about 700,000 more registered voters than the Republican Party, so this means that the Republican Party would hold the chair during presidential election years, which are also gubernatorial election years in North Carolina. The Democratic Party would hold the chair during the less-important midterm years.

The old law says the Board will have five members, and the Governor can always arrange the composition so that the Governor’s party has a majority of the board members. The Governor argues that the new law violates separation of powers. Here is the Governor’s brief. The Governor also argues that it works better to have an odd number of members.