The Governor of North Carolina, @RoyCooperNC, and the Executive Director of the @NCSBE intend to try and foist #votingbymail on our State, despite the proven risks to both #electionsecurity and #securityofballots.
I submitted comments in opposition to the proposal:
GS 163-27.1:
"(a) The Executive Director, as chief State elections official, may exercise emergency
powers to conduct an election in a district where the normal schedule for the election is disrupted by any of the following:
(1) A natural disaster.
"(a) The Executive Director, as chief State elections official, may exercise emergency
powers to conduct an election in a district where the normal schedule for the election is disrupted by any of the following:
(1) A natural disaster.
(2) Extremely inclement weather.
(3) An armed conflict involving Armed Forces of the United States, or mobilization of those forces, including North Carolina National Guard and reserve components of the Armed Forces of the United States.
(3) An armed conflict involving Armed Forces of the United States, or mobilization of those forces, including North Carolina National Guard and reserve components of the Armed Forces of the United States.
In exercising those emergency powers, the Executive Director shall avoid unnecessary conflict with the provisions of this Chapter. The Executive Director shall adopt rules describing the emergency powers and the situations in which the emergency powers will be exercised"
The plain text of the statute is limited to three defined circumstances, none of which encompasses an epidemic or a pandemic. The proposed amendment is a failure and non-starter before it leaves the starting gate.
It is doomed to failure because it proposes that the Executive Director may, by rule-making, expand the scope of her emergency powers under the pretense that a "natural disaster" includes epidemics or pandemics.
But the Act does not grant to the Executive Director the power to amend the text of G.S. 163-27.1.
Nor could it, as the North Carolina Constitution deposits all legislative power in the North Carolina General Assembly. NC Const. Art. II, Section 1, states:
Nor could it, as the North Carolina Constitution deposits all legislative power in the North Carolina General Assembly. NC Const. Art. II, Section 1, states:
"Legislative power.
The legislative power of the State shall be vested in the General Assembly, which shall consist of a Senate and a House of Representatives."
The legislative power of the State shall be vested in the General Assembly, which shall consist of a Senate and a House of Representatives."
Because the proposed rule-making is in the nature of legislatively amending G.S. 163-27.1, it also threatens a fundamental violation of the state doctrine of separation of powers.
See, for example, New Hanover County Board of Education v. Josh Stein, No. 339A18 (NC Supreme Court 2020) ("It is simply incorrect that the Attorney General has "plenary authority to act in the interests of the public."
The separation of powers principle of the North Carolina Constitution makes that clear. The Attorney General should act in the public interest, but he may not exercise legislative power to do so");
State v. Cobb, 262 N.C. 262, 266 (NC 1964) ("When a court, in effect, constitutes itself a super legislative body and attempts to rewrite the law according to its predilections and notions of enlightened legislation, it destroys the separation of powers and ...
thereby upsets the delicate system of checks and balances which has heretofore formed the keystone of our constitutional government").
Consequently, you are on notice that the proposed amendment violates the NC Constitution. If you promulgate the regulation, you will be subject to litigation; the State Supreme Court has been quite receptive to separation of powers arguments during the tenure of Governor Cooper.
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