Beruflich Dokumente
Kultur Dokumente
(919) 814-0755
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Re: Request for update regarding status of 2018 general election in reference to
Cooper v. Berger et al., 18 CVS 3348 (a/k/a Cooper IV ).
Your Honors:
Material developments since my initial response to Judge Jeffery B. Foster have made
it necessary to revise my prior update of December 10. I understand the nature of this
correspondence to be out of the ordinary, and I appreciate the consideration of the Panel.
All parties to this matter have agreed that the board should remain in place pending
the resolution of the investigation that has delayed certification in certain contests, including
Congressional District 9. I write to advise the Panel of recent developments that may affect
the State Board’s ability to complete the investigation prior to the expiration of the stay on
December 28.
In early afternoon yesterday, Rep. David Lewis and Sen. Dan Bishop held a press
conference announcing the creation of new legislation proceeding through both chambers of
the General Assembly as a conference report. Thereafter a 19-page Conference Committee
Substitute began making its way through the House and Senate. See enclosure. Today the
bill cleared the House by a vote of 82-17 and the Senate by a vote of 34-3. If enacted, the
legislation would trifurcate the current State Board into the agencies that previously
enforced elections and campaign finance, ethics, and lobbying compliance, respectively.
However, the measure by its own terms becomes effective January 31. See enclosure at
Sections 2.6 and 3.11.(e).
Late yesterday afternoon, this Panel entered an Order permitting the State Board to
continue as presently constituted through its certification of the 2018 general election or
December 28, whichever occurs first. Comparing the terms of the Panel’s Order and the
legislation, there is more than a one-month gap during which time the agency would operate
1
under an uncertain status, governed by prior law but without legal structure for the
unmerging of the agencies or appointment of a board. We also understand disagreement may
exist between the General Assembly and the Governor regarding the nature of the status quo
upon the dissolution of the Panel’s stay.
Disputes and uncertainty about the board’s clear authority between December 28 and
January 31 will substantially disrupt our efforts. It is my strong belief that it is in the public
interest that the current board remain in place until Congressional District 9 and the
remaining contests from the 2018 general election have been finalized through issuance of
certifications of elections or final order by the agency. Due to the complexity of the ongoing
investigation, and based on non-public information regarding Congressional District 9, it is
my belief that a transition during this time would work against the public’s interest,
undermining ongoing activities and eroding public confidence in the eventual determinations
made by this agency.
Best Regards,
Joshua D. Malcolm
Chairman
Enclosure
2
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2017
H D
HOUSE BILL 1029
Committee Substitute Favorable 6/5/18
Committee Substitute #2 Favorable 6/7/18
Fourth Edition Engrossed 6/13/18
Proposed Conference Committee Substitute H1029-PCCS10548-BKf-6
1 A BILL TO BE ENTITLED
2 AN ACT TO REQUIRE A PRIMARY IF A NEW ELECTION IS ORDERED IN ANY
3 ELECTION CONTEST; TO RETURN THE ADMINISTRATIVE STRUCTURE OF
4 ELECTIONS, ETHICS, AND LOBBYING TO THE 2016 STRUCTURE; AND TO MAKE
5 OTHER CHANGES TO THE ELECTIONS, ETHICS, AND LOBBYING LAWS.
6 The General Assembly of North Carolina enacts:
7
8 PART I. REQUIRE PRIMARY FOR NEW ELECTION
9 SECTION 1. G.S. 163-182.13 is amended by adding a new subsection to read:
10 "(g) Primary Required for a New Election. – For any new congressional general election
11 ordered under subsection (a) of this section, a primary for that election shall be conducted. The
12 State Board shall determine when the primary shall be held, and shall set the schedule for
13 publication of the notice, preparation of absentee official ballots, and the other actions necessary
14 to conduct the primary."
15
16 PART II. DELAY EFFECTIVE DATE PART I OF SB 824, 2017 REGULAR SESSION
17 SECTION 2. If Senate Bill 824, 2017 Regular Session, becomes law, then Part I of
18 that act shall not apply to any new election ordered under G.S. 163A-1181 in a 2018 election
19 contest.
20
21 PART III. ELECTIONS, ETHICS, AND LOBBYING
22 SECTION 3.1.(a) The Revisor of Statutes is authorized to re-recodify Chapter 163A
23 of the General Statutes back into Chapters 163, 138A, and 120C of the General Statutes. In
24 preparing the re-recodified chapters, the Revisor of Statutes shall revert the changes made by the
25 Revisor pursuant to Section 3 of S.L. 2017-6, except that after consultation with the appropriate
26 agency staff, the Revisor may separate subsections of statutory sections that existed in the former
27 Chapters into new sections and, when necessary to organize relevant law into its proper place in
28 the re-recodified chapters, may rearrange sentences that appeared within those subsections. The
29 Revisor shall also incorporate into the re-recodified chapters all amendments to Chapters 163,
30 163A, 138A, and 120C that became effective on or after April 25, 2017, other than those made
31 by S.L. 2017-6 or by Part VIII of S.L. 2018-2.
32 SECTION 3.1.(b) Sections 3 through 21 of S.L. 2017-6 are repealed.
33 SECTION 3.1.(c) Part VIII of S.L. 2018-2 is repealed.
*H1029-PCCS10548-BKf-6*
General Assembly Of North Carolina Session 2017
1 SECTION 3.1.(d) G.S. 163A-2 is repealed.
2 SECTION 3.2.(a) G.S. 163-19, as re-recodified by this act, is rewritten to read:
3 "§ 163-19. State Board of Elections; appointment; term of office; vacancies; oath of office.
4 (a) There is established the State Board of Elections, which may be referred to as the
5 "State Board" in this Chapter.
6 (b) The State Board of Elections shall consist of five registered voters whose terms of
7 office shall begin on May 1, 2019, and shall continue for four years, and until their successors
8 are appointed and qualified. The Governor shall appoint the members of the State Board and
9 likewise shall appoint their successors every four years at the expiration of each four-year term.
10 Not more than three members of the State Board shall be members of the same political party.
11 The Governor shall appoint the members from a list of nominees submitted to the Governor by
12 the State party chair of each of the two political parties having the highest number of registered
13 affiliates as reflected by the latest registration statistics published by the State Board. Each party
14 chair shall submit a list of four nominees who are affiliated with that political party. No person
15 may serve more than two consecutive four-year terms.
16 (c) Any vacancy occurring in the State Board shall be filled by the Governor, and the
17 person so appointed shall fill the unexpired term. The Governor shall fill the vacancy from a list
18 of three nominees submitted to the Governor by the State party chair of the political party that
19 nominated the vacating member as provided in subsection (b) of this section. The three nominees
20 must be affiliated with that political party.
21 (d) At the first meeting held after new appointments are made, the members of the State
22 Board shall take the following oath:
23 "I, __________, do solemnly swear (or affirm) that I will support the Constitution of
24 the United States; that I will be faithful and bear true allegiance to the State of North
25 Carolina, and to the constitutional powers and authorities which are or may be established
26 for the government thereof; that I will endeavor to support, maintain, and defend the
27 Constitution of said State, and that I will well and truly execute the duties of the office of
28 member of the State Board of Elections according to the best of my knowledge and ability,
29 according to law, so help me God."
30 (e) After taking the prescribed oath, the State Board shall organize by electing one of its
31 members chair and another secretary.
32 (f) No person shall be eligible to serve as a member of the State Board who:
33 (1) Holds any elective or appointive office under the government of the United
34 States, the State of North Carolina, or any political subdivision thereof.
35 (2) Is a candidate for nomination or election to any office.
36 (3) Holds any office in a political party or organization.
37 (4) Is a campaign manager or treasurer of any candidate in a primary or election.
38 (5) Is currently an employee of the State, a community college, or a local school
39 administrative unit.
40 (6) Within the 48 months prior to appointment, has held any of the following
41 positions with an organization that has engaged in electioneering in those 48
42 months:
43 a. Director, officer, or governing board member.
44 b. Employee.
45 c. Lobbyist registered under Chapter 120C of the General Statutes.
46 d. Independent contractor.
47 e. Legal counsel of record.
48 (g) No person while serving on the State Board shall:
49 (1) Make a reportable contribution to a candidate for a public office over which
50 the State Board would have jurisdiction or authority.
51 (2) Register as a lobbyist under Chapter 120C of the General Statutes.