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Cooper v. Berger (Amicus Brief)

The Brennan Center, together with Democracy North Carolina, is filing an amicus brief in Cooper v. Berger.

Published: August 2, 2017

The Brennan Center is supporting North Carolina Governor Roy Cooper’s lawsuit against the state’s General Assembly. This litigation arose out of the Republican-dominated North Carolina Legislature’s efforts to strip control of state and county boards of elections from the newly-elected Democratic Governor. 


Governor Roy Cooper was elected last November in a narrow victory over his Republican predecessor, Pat McCrory. In late November, once Cooper’s victory had been confirmed but before he took office, the Republican-controlled North Carolina General Assembly passed a law that made a number of changes to state government designed to limit the new Governor’s power. A three-judge panel of the Wake County Superior Court struck down the law, but in late April, the General Assembly passed a replacement law that once again restructured the state’s elections and ethics agencies, over Governor Cooper’s veto. 

Among other things, the new law combines the State Board of Elections with the State Ethics Commission into one evenly-divided eight-member body. The Governor’s power over appointments to the Board is severely limited: the Republican Party and Democratic Party each provide the Governor with a list of six nominees, and he must choose four members from each list. The law further provides that the Executive Director of the current state Board of Elections, a Republican, would become Executive Director of the new combined agency. Any action—including removal of the Executive Director—would take a vote of six of the new Board’s eight members. The law also restructures each of North Carolina’s county boards of elections so that they too would be evenly-divided instead of controlled by the Governor’s party. Chairmanship of the state and county boards would rotate annually, with the party that has fewer state-wide registrations (which has always been Republicans) chairing during even-numbered (i.e. election) years. 

According to the amicus brief, the General Assembly’s action is an attempt to entrench its majority party, the Republicans, in control over North Carolina’s electoral system regardless of their loss of voter support. This clashes with bedrock principles underlying the Constitutions of the United States and the State of North Carolina. Based on these principles, courts have interpreted the law to thwart political entrenchment in many circumstances involving the electoral and political processes. The North Carolina Supreme Court should do the same here.

Cooper v. Berger (N.C. Supreme Court)