2018 Cooper v. Berger

8CVU0331a8
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DWISION
COUNTY OF WAKE 18CVS
ROY A. COOPER, III, in his official

capacity as GOVERNOR OF THE STATE ns
OF NORTH CAROLINA,
Plaintiff, I-q
V.
PHILIP E. BERGER, in his official capacity VERIFIED COMPiAIP<Ft, MOTION

as PRESIDENT PRO TEMPORE OF THE FOR TEMPORARY RESTRAINING
NORTH CAROLINA SENATE; TIMOTHY ORDER, AND MOTION FOR
K. MOORE, in his official capacity as PRELIMINARY INJUNCTION
SPEAKER OF THE NORTH CAROLINA
HOUSE OF REPRESENTATIVES; and
THE STATE OF NORTH CAROLINA,
Defendants.
Plaintiff Roy Cooper, in his official capacity as Governor of the State of North Carolina,
seeking a declaratory judgment under N.C. Gen. Stat. §§ 1-253, et seq., and North Carolina Rule
of Civil Procedure 57; and seeking a temporary restraining order, preliminary injunction, and
permanent injunction under North Carolina Rule of Civil Procedure 65, hereby alleges and says:
INTRODUCTION
1. The leadership of the North Carolina General Assembly moved on the eve of
Plaintiffs assumption of the Office of the Governor to curtail, in significant ways, the executive
powers that passed to him on January 1, 2017. In a hastily called session from December 14 to
December 16, 2016, the General Assembly, passed a bill—Senate Bill 4, enacted as Session Law
2016-125—that radically changed the stmcture and composition of the executive agency
responsible for administrating our State's election laws.

2. Since 1901, the State Board of Elections had consisted of five members appointed
by the Governor. No more than three of the five members could be from one political party. The
Board, in turn, was authorized to appoint the executive director of that agency.
3. In Session Law 2016-125, the General Assembly merged the State Board of
Elections and the State Ethics Commission and increased the size of the Board to eight members,
four appointed by the leadership of the General Assembly and four by the Governor. County
boards of election were also changed from three-member boards, with two members from the
Governor's political party, to four-member boards evenly split between the two major political
parties. The new law also required that the Chair of the New State Board be a Republican in all
statewide election years.
4. On March 17, 2017, a duly appointed three-judge panel unanimously found the
General Assembly's attempt to revamp the way the State Board of Elections is structured and
operates to be unconstitutional as a violation of separation of powers. See Cooper v. Berger and
M~oore, Wake County Case No. 16-CVS-15636, Order on Cross-Motions for Summary Judgment
(March 17, 2017) ("Cooper -/") (declaring unconstitutional the provisions of Session Law 2016-
125 giving the General Assembly effective control over the State Board of Elections).
5. In the face of this rebuke to its effort to change the way the State Board of Elections
is structured and operates, on April 25, 2017, the General Assembly enacted Session Law 2017-6,
which repealed the acts enjoined in Cooper v. Berger and Moore, including the portions of Session
Law 2016-125 relating to the State Board of Elections. However, Session Law 2017-6 once again
replaced the State Board of Elections and State Ethics Commission with an unconstitutionally
structured and staffed new Bipartisan State Board of Elections and Ethics Enforcement ("New
State Board").
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6. Session Law 2017-6 created a State Board with four Republicans and four
Democrats, all appointed by the Governor from lists provided by the State parties. In exchange
for that change from Session Law 2016-125, however, the General Assembly legislatively
appointed as Executive Director the person of its choice and barred her removal until May 2019.
The chair provisions changed slightly, but still mandated a Republican chair during all presidential
election years. The county board provisions set forth in Session Law 2016-125 did not change.
7. The General Assembly's passage of Session Law 2017-6 forced the Governor to
file another lawsuit. In the new action, the Governor sought a declaration that the new statute was
unconstitutional for largely the same reasons as the old one. On January 26, 2018, the Supreme
Court of North Carolina agreed, ruling that the new law violated the North Carolina Constitution's
separation of powers provision because "the relevant provisions of Session Law 2017-6, when
considered as a unified whole, ' leave [ ] the Governor with little control over the views and
priorities' of the [New State Board]." Cooper v. Berger and Moore, Case No. 52PA17-2,
-N.C. —, — S.E. 2d— Slip Op. at 33 (Jan. 26,2018)("Cooper IF).
8. The core holding of Cooper II is that the Governor must have the authority to
appoint to executive boards and commissions a majority of members who share the Governor's
policy choices and preferences. See Cooper II, Slip Op. at 34 ("[W]e conclude that the relevant
provisions of Session Law 2017-6, when considered as a unified whole, leave the Governor with
little control over the views and priorities of the Bipartisan State Board by requiring that a
sufRcient number of its members to block the implementation of the Governor's policy preferences
be selected from a list of nominees chosen by the leader of the political party other than the one to
which the Governor belongs . . . ."); id. at 44 ("The majority ppimon imposes a constitutional
requirement that the Governor be able to appoint a majority of the members of the Bipartisan State
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Board of Elections and Ethics Enforcement from his own political party.") (IVtartin, C.J.,
dissenting).
9. The Court in Cooper II confinned that the Governor is entitled to set executive
policy that reflects his views and priorities and to appoint a controlling number of board members
in executive agencies who share the Governor's policy views and priorities. Cooper II, Slip Op.
at 33. With respect to election laws, for example, the Governor must have the authority to ensure
that those he appoints to the board administering our State's election laws reflect his views and
priorities with respect to the fundamental policy question of how easy or hard it is for citizens to
vote (i.e., execution of the laws governing the establishing of early voting times and sites for
elections).
10. Disregarding this limit on legislative authority, and apparently undeterred by two
consecutive judicial checks on its unconstitutional actions, the General Assembly passed House
Bill 90 onFebruary 13,2018, before the mandate in Cooper 7/had issued from the Supreme Court.
WMle the first part of House Bill 90 focused on addressing problems created by the General
Assembly's previous enactment of primary school class-size limitations without sufficient funding
for the additional teachers that abiding by those restrictions would necessitate, it was adorned with
yet another attempt at curtailing the Governor's constitutional prerogative to ensure that a majority
of the state board of elections reflects the Governor's policy views and priorities.
11. Part VIII of House Bill 90 represents the General Assembly's third attempt to
revamp the structure and operation of the executive agency charged with enforcing our State's
elections and ethics laws. As detailed below, however. Defendants are simply tinkering around
the edges, and they have failed, yet again, to clear the constitutional bar set by our Supreme Court
in its McCrory v. Berger and Cooper II decisions.

12. Specifically, House Bill 90 adds a ninth member to the New State Board, whom the
Governor is to appoint fi-om a list of two nominees unaffiliated with the two largest political parties
generated by the other eight members of the board (four of whom are appointed from a list of six
generated by the Governor's political party and four of whom are appointed from a list of six
generated by the opposing political party).
13. But Part VIII of House Bill 90 otherwise leaves the structure and operation of the
New State Board prescribed by Session Law 2017-6 almost entirely in place—notwithstanding the
Supreme Court's constitutional rulings in Cooper II.
14. The new 4-4-1 board structure created by House Bill 90 is unconstitutional for the
same reason the 4-4 board in Session Law 2017-6 was ruled unconstitutional. Under House Bill
90, the very first decision made by the four Republicans and four Democrats appointed to the New
State Board will be to choose a list of two unaffiliated voters to send to the Governor as choices
for the ninth board member. That decision will require a majority of five votes. In Cooper II, the
4-4 board structure was held unconstitutional, and yet House Bill 90 leaves the very same 4-4
board in place to select the potential ninth board member. This means that the Governor will be
unable to ensure that a majority of the New State Board is made up of members who share the
Governor's views and priorities.
15. The General Assembly's latest attempt to revamp the State's election and ethics
laws fails because Part VIII of House Bill 90 directly contravenes the Supreme Court's holding in
Cooper II. Accordingly, it is likewise unconstitutional.
16. In addition. House Bill 90 is premised on the notion that all the provisions of
Session 2017-6 not amended by House Bill 90 remain viable and will go into effect in conjunction
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with House Bill 90. The Governor disagrees because Cooper II invalidated Session Law 2017-6
m its entirety.
17. However, as of this filing, this issue remains the subject of litigation pending in the
Supreme Court in the Cooper II case. Until the Supreme Court resolves this question. House Bill
90 cannot and should not go into effect. For example, if the Supreme Court enjoins and invalidates
Sections 3 through 22 of Session Law 2017-6, House Bill 90 would be facially invalid because it
would be an amendment to a law that has been enjoined and invalidated.
18. This General Assembly's continued, direct attacks on executive authority
unconstitutionally infringe on the Governor's executive powers in violation of separation of
powers. N.C. CONST. art. I, § 6; id. art. II, § 1; id. art. Ill, §§ 1, 5(4).
19. As our Supreme Court recently observed, "The election of a particular candidate
signifies public support for that candidate's platform, policies, and ideology." Young v. Bailey,
368 N.C. 665,671,781 S.E.2d 277,281 (2016). Here, the General Assembly's repeated, sustained
efforts to disempower the Office of the Governor fail to respect the will of the electorate in
selecting him as North Carolina's chief executive.
20. The constitutional allocation of powers between the Office of the Governor and the
legislature must be protected, no matter the political affiliation of the Governor or the majority of
the legislature.
21. This General Assembly's actions have demonsti-ably and consistently failed to
respect fundamental principles of representative government and the basic guarantees of the North
Carolina Constitution, including the separation of power among the coordinate branches of North
Carolina's government. This failure requires the Governor to enforce his constitutional rights—
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for a third time just with respect to the State Board of Elections—and protect the constitutional
powers allocated to the Executive Branch of State Government by the people.
PARTIES AND JURISDICTION
22. On November 8, 2016, the voters of the State of North Carolina chose Plaintiff
Governor Roy Cooper ("Governor Cooper") to be their governor for a four-year term that
commenced on January 1, 2017. Governor Cooper is a resident of Wake County, North Carolina.
23. Defendant State of North Carolina is a sovereign state with its capital in Wake
County, North Carolina. The State's laws, as enacted by the General Assembly, are being
challenged as unconstitutional in this action.
24. Defendant Philip E. Berger is the President Pro Tempore of the North Carolina
Senate and, upon information and belief, is a resident ofRockingham County, North Carolina.
25. Defendant Timothy K. Moore is the Speaker of the North Carolina House of
Representatives and, upon infonnation and belief, is a resident of Cleveland County, North
Carolina.
26. Defendants lack sovereign immunity for the claims alleged herein, all of which
arise under the exclusive rights and privileges enjoyed by—and duties assigned to—the Governor
of the State of North Carolina by the North Carolina Constitution.
27. Pursuant to N.C. Gen. Stat. §§ 1-253, et seq., and North Carolina Rule of Civil
Procedure 57, Governor Cooper seeks judgment declaring unconstitutional Part VIII of House
Bill 90, a. true and correct copy of which is attached as Exhibit A, together with the unamended
portions of Session Law 2017-6. A true and correct copy of Session Law 2017-6 is attached as
Exhibit B,
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28. Part VIII of House Bill 90 and the unamended portions of Session Law 2017-6 are
referred to herein as House Bill 90 or Part VIII of House Bill 90.
29. As further alleged below, a present and real controversy exists between the parties
as to the constitutionality of House Bill 90.
30. Governor Cooper also seeks to restram and enjoin the application of House Bill 90.
Accordingly, this action is properly brought in the Superior Court Division of the General Court
of Justice pursuant to N.C. Gen. Stat. §§ 1-253, et seq., and 7A-245(a).
31. This Court has jurisdiction over the parties and subject matter of this lawsuit, and
venue is proper.
CONSTITUTIONAL PRINCIPLES
Separation of Powers
32. As the Supreme Court of North Carolina reaffirmed in 2016:
Our founders believed that separating the legislative, executive, and

judicial powers of state government was necessary for the
preservation of liberty. The Constitation of North Carolina
therefore vests each of these powers in a different branch of
government and declares that "[t]he legislative, executive, and
supreme judicial powers of the State government shall be forever
separate and distinct from each other."
State ex rel. McCrory v. Berger, 368 N.C. 633, 635, 781 S.E.2d 248, 250 (2016) (quoting N.C.
CONST. art. I, § 6).
33. "There should be no doubt that the principle of separation of powers is a
cornerstone of our state and federal governments." State ex rel. Wallace v. Bone, 304 N.C. 591,
601,286S.E.2d79,84(1982).
34. Indeed, our founders embedded separation of powers in our state Constitution. See,
e.g., N.C. CONST. art. I, § 6 ("The legislative, executive, and supreme judicial powers of the State
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government shall be forever separate and distinct from each other."); art. Ill, § 1 ("The executive
power of the State shall be vested m the Governor."); art. Ill, § 5(4) ("The Governor shall take
care that the laws be faithfully executed."); art. II, § 1 ("The legislative power of the State shall be
vested in. the General Assembly, which shall consist of a Senate and a House of Representatives.");
art. IV, § 1 ("The judicial power of the State shall ... be vested in a Court for the Trial of
bnpeachtnents and in a General Court of Justice.").
35. These core principles guided our Supreme Court in McCrory v. Berger, when it
held that the General Assembly had unconstitutionally encroached on the province of the Governor
by establishing three commissions (including the Coal Ash Management Commission), accordmg
them executive authority, and then limiting the Governor's ability to control those commissions.
36. "The clearest violation of the separation of powers clause occurs when one branch
exercises power that the constit-ition vests exclusively in another branch." 368 N.C. at 645, 781
S.E.2d at 256. The constitutional guarantee of separation of powers also "requires that, as the three
branches of government carry out their duties, one branch will not prevent another branch from
performing its core functions." See id. at 636, 781 S.E.2d at 250.
37. The McCrory Court made clear that the Governor's .ability to control executive
branch officers, boards, and commissions—and, concomitantly, the exercise of final executive
authority by those executive entities—depends on the Governor's ability to appoint such officials,
"to supervise their day-to-day activities, and to remove them from office." McCrory, 368 N.C. at
646,781 S.E.2dat256.
38. Under M.cCrory, the structure and composition of executive agencies must provide
the Governor with sufficient "control over the views and priorities" of the agency appointees to
allow him to ensure faithful execution of the laws. 368 N.C. at 647, 781 S.E.2d at 257.
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39. Earlier tMs year, the Supreme Court followed and applied the holding ofMcCrory
to sustain the Governor's challenge to Session Law 2017-6 in Cooper II:
As we have already noted, the North Carolina Constitution, unlike

the United States Constitution, contains an explicit separation-of-
powers provision. See N.C. Const. art. I, § 6 (stating that "[t]he
legislative, executive, and supreme judicial powers of the State
government shall be forever separate and distinct from each other").
For that and other reasons, "the separation of powers doctrine is well
established under North Carolina law." As we explained in
McCrory, separation-of-powers violations can occur "when one
branch exercises power that the constitution vests exclusively in
another branch" or "when the actions of one branch prevent another
-branch from performing its constitutional duties."
Cooper II, Slip. Op. at 29-30 (citations omitted).
40. With Session Law 2017-6, the General Assembly attempted to skirt, albeit
unsuccessfully, the flaws in Session Law 2016-125 by permitting the Governor to appoint all eight
members of the New Store Board. However, Session Law 2017-6 also required the Governor to
appoint four members from a list of sbc provided by the Governor's own political party and four
from a list of six provided by the opposing political party (assuming the Governor belongs to one
of the two primary political parties). Thus, notwithstanding the Governor's nominal authority to
appoint all eight members of the New State Board, the appointment provisions of Session Law
2017-6 ensured that there would not be a majority of members who shared the Govemor's views
and priorities.
41. The Supreme Court held in Cooper II that this constituted the cMef constitutional
failing of Session Law 2017-6, holding as follows:
Although we did not explicitly define "control" for separation-of-

powers purposes in McCrory, we have no doubt that the relevant
constitutional provision, instead of simply contemplating that the
Governor will have the ability to preclude others from forcing him
or her to execute the laws in a manner to which he or she objects,
also contemplates that the Governor will have the ability to
affirmatively implement the policy decisions that executive
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branch agencies subject to his or her control are allowed,
through delegation from the General Assembly, to make as well.
As was the case in M^cCrory, in which we determined that the

General Assembly had exerted excessive control over certain
executive agencies by depriving the Governor of "control over
the views and priorities" of a majority of the members of the
commissions at issue in that litigation, 368 N.C. at 647, 781
S.E.2d at 257, we conclude that the relevant provisions of Session
Law 2017-6, when considered as a unified whole, "leave[ ] the
Governor with little control over the views and priorities" of the
Bipartisan State Board, id. at 647, 781 S.E.2d at 257, by requiring
that a sufficient number of its members to block the implementation
of the Governor's policy preferences be selected from a list of
nominees chosen by the leader of the political party other than the
one to which the Governor belongs, limiting the extent to which
individuals supportive of the Governor's policy preferences have the
ability to supervise the activities of the Bipartisan State Board, and
significantly constraining the Governor's ability to remove
members of the Bipartisan State Board.
The General Assembly cannot, however, consistent with the textual

command contained in Article III, Section 5(4) of the North
Carolina Constitution, structure an executive branch commission in
such a manner that the Governor is unable, within a reasonable
period of time, to "take care that the laws be faithfully executed"
because he or she is required to appoint half of the commission
members from a list of nominees consisting of individuals who are,
in all likelihood, not supportive of, if not openly opposed to, his or
her policy preferences while having limited supervisory control over
the agency and circumscribed removal authority over commission
members. An agency structured in that manner "leaves the
Governor with little control over the views and priorities of the
[majority of] officers" and prevents the Governor from having "the
final say on how to execute the laws." M.cCrory, 368 N.C. at 647,
781 S.E.2d at 257. As a result, the manner in which the membership
of the Bipartisan State Board is structured and operates under
Session Law 2017-6 impennissibly, facially, and beyond a
reasonable doubt interferes with the Governor's ability to ensure
that the laws are faithfully executed as required by Article III,
Section 5(4) of the North Carolina. Id.
Cooper II, Slip Op. at 31, 33-34, 36 (emphasis added).
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42. The holding and instruction of Cooper II is clear: the separation-of-power clause of
the North Carolina Constitution requires that the Governor have the authority to appoint a majority
of members of the State board who share the Governor's views and priorities. That is necessary
so that the Governor, through his appointees, may implement executive policy consistent with his
views and priorities, on issues delegated by the General Assembly to executive agencies. The
failure of Session 2017-6 to do so was its principal constitutional failing.
43. Indeed, the first line of the Chief Justice's dissenting opinion recognizes this core
holding of the majority opinion: "The majority opinion imposes a constitational requirement that
the Governor be able to appoint a majority of the members of the Bipartisan State. Board of
Elections and Ethics Enforcement from his own political party." Cooper II, Slip Op. at 44 (Martin,
C.J., dissenting).
44. As further detailed below, Part VIII of House Bill 90 likewise violates separation
of powers by preventing the Governor from performing his core function under the North Carolina
Constitution to "take care that the laws be faithfully executed." N.C. CONST. art. Ill, § 5(4).
45. By seeking declaratory and injurLctive relief enj oining the operation of Part VIII of
House Bill 90, this lawsuit seeks to preserve the constitutional balance of power carefully crafted
by our founders—and most recently re-adopted by the people of North Carolina in the Constitution
of 1971—and to reaffirm that the executive branch is co-equal to the legislative branch, no matter
which political party holds the executive office.
CHALLENGES TO PART VIII OF HOUSE BILL 90
46. Because House Bill 90 purports to amend a handful of provisions of Session Law
2017-6, while leaving the rest of the law in place, it is necessary first to outline the changes to how
our State's elections laws would be executed under Session, Law 2017-6.
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47. The starting point of Session Law 2017-6 is that it abolishes the existing executive
agencies that enforce our State's election and ethics laws. In their place. Session Law 2017-6
creates a new agency—the New State Board—with the responsibility to execute both sets of laws.
48. As set forth in N.C. Gen. Stat. § 163-19 (before Session Law 2017-6), the State
Board of Elections (the "SBOE") consisted of five members, no more than three of whom may be
from the same political party. The Governor appointed all five members from lists of five
nominees submitted by the state party chairman of each of the two largest political parties. A five-
member SBOE with those appointment requirements ensured that the views and priorities of the
Governor will be reflected in at least three of its five members.
49. Under Session Law 2017-6, as incorporated into House Bill 90, the SBOE is
restruchired unconstitutionally to interfere with the Governor's faithful execution of those laws.
Specifically:
a. Under a portion of Session Law 2017-6 invalidated in Cooper II, a new

eight-member Bipartisan State Board of Elections and Ethics Enforcement
was to be created to execute elections and ethics laws, with its membership
split between four members of each of the two largest political parties.
Session Law 2017-6, § 4(c) (enacting §§ 163A-1, 163A-2). The Governor
was to appoint all eight members, half from a list provided by the largest
political party in the State and half from a list provided by the second
largest.
b. House Bill 90 increases the members of the New State Board from eight to
nine. Eight of those nine members are appointed exactly as they would have
been under Session Law 2017-6—the Governor appoints four each from
lists of six provided by the two largest political parties in North Carolina.
House Bill 90, § 8(b) (amending § 163A-2(a)).
c. The Governor appoints the ninth member from a list of two individuals not
registered with the two largest political parties generated by the other eight
members of the New State Board. Id. The Governor must fill any vacancy
using the same appointment criteria that applied to the vacating member.
Id., § 8(b) (amending § 163A-2(d)).
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d. Five members of the New State Board will be required to take most actions,
meaning that, under Session Law 2017-6, any vote split on political party
lines would have deadlocked the board and prevented action. See Session
Law 2017-6, § 4.(c) (enacting §§ 163A-3(c), 163A-4(d)).
e. The General Assembly has appointed Kim Strach as Executive Director of

the New State Board. Id. § 17. The Executive Director is the "chief State
elections official" who is "responsible for staffing, administration, and
execution of the State Board's decisions and orders." Id. (enacting
§§ 163A-6(c) and (d)); N.C. Gen. Stat. § 163-27.1. Ms. Strach was imtially
hired by the SBOE on a 3-2 partisan vote following Governor McCrory's
election and appointment of a majority Republican Board.
f. The Governor is empowered to appoint the first chair of the New State
Board. See Session Law 2017-6,. § 10. But, following that first
appointment, the New State Board selects its chair, and the board must
select a chair of a set political affiliation—if current registration statistics
hold, the chair will be a Republican for every year that Presidential,
gubernatorial, and Council of State elections are held. Id. (enacting § 163A-
2(f>). See also House Bill 90, § 8.(b).
g. Five members of the New State Board will be required to issue subpoenas,
Session Law 2017-6, § 4(c) (enacting § 163A-3(c), 163A-4(a),(d)). Under
the prior statutes, just the chair or any two of the remaining four members
ofSBOE may issue a subpoena. See N.C. Gen. Stat. § 163-23.
h. County boards of election will consist of four members, two of the political
party with the highest number of registered affiliates and two of the political
party with the second highest number of registered affiliates, with a vote of
three members required to take action. Session Law 2017-6, §§ 7(h)
(amending § 163-30), 7(i) (amending § 163-31).
i. At the county level, the Republican Party holds the chairmanship in even-
numbered years, when the vast majority of statewide and federal elections
(presidential. Congressional, gubernatorial. Council of State, General
Assembly, and judicial) take place. See id.
50. House Bill 90 makes very limited changes to Session 2017-6. The principal change
is to the membership and appointment of the New State Board. The only other substantive change
House Bill 90 makes to Session Law 2017-6 relates to removal of members. Whereas Session
Law 2017-6 limited the Governor's power to remove members to instances of "misfeasance,
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malfeasance, or nonfeasance," House Bill 90 permits the Governor to remove members "in the
Governor's discretion." House Bill 90, § 8(b) (amending § 163A-2(c)).
51. House Bill 90 purports to go into effect March 16, 2018, which means that, absent
the relief sought here. House Bill 90 will go into effect with uncertainty as to the status of the
uaamended provisions of Session Law 2017-6 it is premised upon.
A. PART vni or HOUSE BILL 90 VIOLATES SEPARATION OF POWERS AND THE FAITHFUL
EXECUTION CLAUSE.
(1) Both the existins SBOE and the New State Board created by Session Law 2017-
6 and House Bill 90 unquestionably constitute executive branch agencies.
52. Under the law before Session Law 2017-6, the SBOE is the principal executive
agency chargedwith executing the State's election laws.
53. North Carolina law designates the SBOE as an "independent regulatory and quasi-
judicial agency" with "all powers and duties conferred upon the heads of principal departments
under G.S. 143B-10." N.C. Gen. Stat. § 163-28. This means that the SBOE has all the powers
and duties of a principal department (like the Department of Environmental Quality). Many of the
powers granted to the SBOE under the current law are plainly executive in nature.
54. Under current law, the State's 100 county boards of elections—all appointed by the
SBOE—also undertake executive functions, including the primary duty of administering elections
on the county level. County boards "perform all the duties imposed upon them by law. . . ." N.C.
Gen. Stat. § 163-33. These include the duties to:
a. "[Mjake and issue rules, regulations, and instructions" as necessary "for the
guidance of election officers and voters." N.C. Gen. Stat. § 163-33(1).
b. "[EJstablish, define, provide, rearrange, discontinue, and combine election

precincts as it may deem expedient, and to fix and provide for places of
registration and for holding prunaries and elections." Id. § 163-33(4).
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c. " [R] eview, examine, and certify the sufficiency and validity of petitions and
nomination papers." Id. § 163-33(5).
d. Select and purchase voting equipment. Id. § 163-33(7).
e. Propose and approve one-stop early voting plan. Id. § 163-227.2.
f. Appoint precmct officials (Chief Judge and Judges), precinct assistants,

ballot counters, sample auditors, one-stop early voting staff, and teams to
administer absentee voting at nursing homes.
55. With respect to these and other key election law policy decisions, county boards
are the executive agencies closest to the voters and candidates—the first point of contact for most
citizens.
56. Under House Bill 90 and Session Law 201 7-6, the New State Board would exercise
executive authority, as would the county boards of election. Indeed, Session Law 2017-6 assigns
to the New State Board all of the executive duties detailed above—and set forth at length in
Chapter 163 of the General Statutes.
57. In Cooper II, the Supreme Court expressly found that the New State Board as
constituted under Session Law 2017-6 is an executive branch agency. See Cooper II, Slip Op. at
31 ("The Bipartisan State Board established by Session Law 2017-6, which has responsibility for
the enforcement of laws governing elections, campaign finance, lobbying, and ethics, clearly
performs primarily executive, rather than legislative or judicial, functions.").
(2) Part VIII of House Bill 90 and Session Law 2017-6 prevent the Governor from
exercising his executive function of ensuring that North Carolina's election
laws are faithfully executed.
58. Part VIII of House BUF90, both on its own and when combined with Session law
2017-6, is constitutionally infirm in a number of respects.
59. While leaving in place the executive duties of the current SBOE, House Bill 90 and
Session Law 2017-6 substantially change the entity charged with administering those laws, how
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the members of the new entity are appointed, and how that entity carries out those duties, all in
ways that conflict directly with our state Constitution.
60. Taken as a whole, the structures enacted by House Bill 90 and Session Law 2017-
6 serve to make it more difficult for the Governor to ensure that the New State Board and county
boards of election faithfully execute the election laws.
61. Under the Supreme Court's holdings in Cooper II and McCrory, House Bill 90 and
Session Law 2017-6 violate the separation-of-powers and faithful-execution clauses because they
unconstitutionally deprive the Governor of the ability to control the executive agency charged with
execution of the State's election and ethics laws.
(a) Appointment.
62. Specifically, as detailed above, under House Bill 90, the New State Board would
consist of nine members, with only four of the members appointed from a political party affiliated
with the Governor. The Governor's power of appointment is sharply constrained in that: (a) four
members must be appointed from each of the two major political parties; (b) for each political
party, those four members must be selected from a list of six members submitted by the State party
chair; (c) the ninth member must not be affiliated with either major political party; and (d) the
ninth member must be selected from a list of two submitted by the other eight members of the New
State Board.
63. Rather than providing the Governor with the constitutionally required "control" of
this executive agency. House Bill 90 constrains the Governor's power of appointment and removes
his ability to ensure that the members of the New State Board share his policy views and priorities.
House Bill 90 seeks to reduce the Governor's role in appointing the members of the New State
-17-
Board to that of a ministerial functionary signing off on lists compiled by the political parties and
by the other eight appointees.
64. The new 4-4-1 board structure created by House Bill 90 fails for the same reason
that the 4-4 stmctare in Session Law 2017-6 failed. Among other problems, under House Bill 90,
the very first decision made by the four Republicans and four Democrats appointed to the New
State Board will be the most important decision they make—to choose a list of two unaffiliated
voters to send to the Governor as choices for the ninth board member. That decision will require
a majority of five votes. In Cooper II, the 4-4 board structure was held unconstititional, and yet
House Bill 90 leaves the very same 4-4 board in place to select the potential ninth board member.
65. In short, the structure put in place by House Bill 90 means that the Governor will
be unable to ensure that a majority of the New State Board is made up of members who share the
Governor's policy views and priorities. As such. House Bill 90 violates the core holding of Cooper
II.
66. This unconstitutional structural constraint imposed on the Governor's authority by
House Bill 90 and Session Law 2017-6 remains no matter which political party holds the
Governor's of&ce.
(b) Supervision.
67. House Bill 90 does not rectify other constitutional flaws contained in Session Law
2017-6.
68. For example, under Session Law 2017-6, the General Assembly has legislatively
appointed the current Executive Director of the SBOE as the Executive Director of the New State
Board and barred the New State Board from appointing her replacement until May 2019, at the
earliest. The Executive Director was initially appointed to her position as Executive Director in
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a partisan 3-2 vote made by Governor McCrory's appointees to the SBOE. Beginmng in May
2019, the Executive Director will be appointed by the New State Board to serve a two-year, rather
than four-year, term. See id. § 4(c) (enacting § 163A-6); § 17.
69. The Executive Director of the New State Board is the "chief State elections
offiicial," which is akin to a cabinet secretary of a principal department. The Executive Director
is "responsible for staffing, administration, and execution of the State Board's decisions and
orders. . . ." See id. (enacting § 163A-6(c)). This type of official—with this level of discretion
and the power to exercise final executive authority—anywhere else in the executive branch would
be an exempt policymaking employee subject to removal at the Governor's sole discretion.
70. In addition, under Session Law 2017-6, the Governor has no power to appoint the
chair of the New State Board or of the county boards of elections. Instead, Session Law 2017-6
mandates that for every year that Presidential, gubernatorial, and Council of State elections are
held, a member of the Republican Party must be appointed chair of the New State Board of
Elections and, likewise, a Republican must be appointed chair of each county board of elections.
71. In sum, the structures created by Session Law 2017-6—and left untouched by
House Bill 90—for the New State Board and county boards of elections represent a substantial
diminution of and encroachment on the authority of the Governor.
(3) House Bill 90 and Session Law 2017-6, as a whole, violate separation of powers.
72. Though they claim to have created a "bipartisan" state board and "bipartisan"
county boards. Defendants have in fact created a New State Board and county boards that are
designed to weaken the State's elections oversight capabilities and prevent the Governor and the
executive branch from faithfully executing the State's elections laws.
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73. House Bill 90 denies the Governor Ms ability to control the New State Board, even
as that board continues to exercise core executive functions. House Bill 90, together with Session
Law 2017-6, violates separation of powers by limiting the Governor's powers of appointment and
supervision. Moreover, as the Cooper II Court held, "the provisions of Session Law 2017-6
governing the selection of the chair of the Bipartisan State Board and the manner in which the
county boards of elections are stmctured have the effect of compounding the separation-of-powers
violation." Cooper II, Slip Op. at 41.
74. The Governor caimot appoint a majority of members to the New State Board that
reflect the Governor's policy views and priorities, despite the clear command from the Supreme
Court in Cooper II that the state constitution requires that he be able to do so.
75. The Governor's ability to supervise is also limited because he has no authority over
the selection of the Executive Director, who is initially appointed by the General Assembly.
76. Moreover, in the election years when the most citizens vote, when the functioning
of the electoral process is most complicated and critical, when the State Board usually meets on a
weekly (rather than monthly) basis, and when the election results fill the greatest number of
positions in state and federal government—that is, when the President, Governor, members of the
Council of State, members of Congress, and members of the General Assembly are elected—the
Governor has no power to designate a chair of the New State Board or the county boards; instead
the chair must be a member of the Republican Party.
77. Under Session Law 2017-6, the county boards are designed to be deadlocked and
unable to carry out their duties under N.C. Gen. Stat. § 163-33. Under Session Law 2017-6, county
boards of elections change to four member boards, with a vote of three of four members required
to take action. See Session Law 2017-6, § 7(h), (i) (amending §§ 163-30, 163-31).
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78. The impact of the new law on both the Governor's ability to ensure that the laws
are faithfully executed and on his ability to ensure that those his administration appoints and
employs reflect his policy views and priorities can be seen in connection with the laws governing
the establishing of early voting times and sites for elections—in short, how easy or hard it, is for
citizens to vote.
79. Under the version ofN.C. Gen. Stat. § 163-227.2 in the statute books, the General
Assembly established that unless expanded by county boards of elections and approved by the
SBOE, early voting is limited to ten (10) days and may only take place at the local board of
elections office. See id. §§ 163-227.2(b), (f), (g). However, a federal court ruling in the case
challenging a new voter ID law restored a prior law providing for seventeen (17) days of early
voting. Whichever version of the law applies, the minimum time and place(s) for early voting are
set by statute, with statitory authorization for county boards of elections and the SBOE to decide
to expand the time and place(s) for early voting.
80. In recent years, many counties have substantially expanded both the number of days
(including weekends) on which early voting is allowed, as well as the number of sites for early
voting. The end result has been that it has been easier for citizens to vote.
81. Under the new law, because the Governor does not control a majority of the
appointments to the New State Board or the county boards of election, and because a majority is
required to change the default, limited early voting set forth in the statute, the Governor cannot
ensure that his viewed and priorities with respect to early voting and voting sites will be
implemented.
82. In short. House Bill 90 and Session Law 2017-6 together preclude the Governor
from ensuring that the New State Board and county boards execute the State's election laws in a
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manner consistent with the Governor's views and priorities. Accordingly, it prevents the Governor
from fulfilling his constitutional duty to see that the laws are faithfully executed.
(4) The lesislative appointment of the Executive Director, on its own, violates
separation of powers.
83. In Session Law 2017-6, the General Assembly appointed Kim Strach as Executive
Director of the New State Board, and barred the New State Board from replacing her until May
2019, at the earliest. See Session Law 2017-6, § 17.
84. The Court in Cooper II rejected the argument that the appointment of Ms. Strach in
Session Law 2017-6 was simply an "extension" of her prior term. Cooper II, Slip Op. at 37-38.
85. Rather, the Court noted, this appointment provision "limits the ability of persons
who share the Governor's policy preferences to supervise the day-to-day activities of the
Bipartisan State Board" and prevents the Governor from having the requisite "control over the
identity of the [Executive Director] until May 2019." See Cooper II, Slip Op. at 33 and 37.
86. The Court held that as the board was structured in Session Law 2017-6, "the
General Assembly's decision to appoint the Executive Director of the Bipartisan State Board and
to preclude the Bipartisan State Board from either selecting a new Executive Director prior to May
2019 or removing the Executive Director in the absence of 'cause,' could impermissibly constrain
the Governor's ability to ensure that the laws are faithfully executed." Cooper II, Slip Op. at 38.
87. Ultimately, however, the Court refrained from ruling on whether the Executive
Director provision, on its own, violated separation of powers.
(5) The county board provisions of Session Law 2017-6, on their own, violate
separation of powers.
88. As detailed above, under Session Law 2017-6 and House Bill 90, county boards of
election will consist of four members, two of the political party with the highest number of
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registered affiliates and two of the political party with the second highest number of registered
affiliates, with a vote of three members required to take action. See Session Law 2017-6, §§ 7(h)
(amending § 163-30), 7(i) (amending § 163-31).
89. The Cooper II Court did not rule on whether the county board provisions, on their
own, violated separation of powers, but it held that they had "the effect of compounding the
separation-of-powers violation." Cooper II, Slip Op.at 41.
90. The 2-2 county board structure under Session Law 2017-6 is no different from the
4-4 State board structure rejected by the Court in Cooper II.
91. In light of the crucial role county boards of elections play in executing the law in
accordance with the Governor's policy views and priorities. Cooper IF s holding that the Governor
must be able to appoint a majority of board members who share his policy views and priorities
applies with equal force to county boards.
(6) The rotating chair provisions of House Bill 90 and Session Law 2017-6, on their
own, violate separation of powers.
92. As detailed above, under House Bill 90, the Governor is empowered to appoint the
fast chair of the New State Board. See Session Law 2017-6, § 10. But, following that first
appointment, the New State Board selects its chair and must select a chair of a set political
affiliation—if current registration statistics hold, the chair will be a Republican for every year that
Presidential, gubernatorial, and Council of State elections are held. Id. (enacting § 163A-2(f)).
93. Similarly, under Session law 2017-6, at the county level the Republican Party holds
the chairmajasMp in even-numbered years, when the vast majority of statewide and federal
elections (presidential. Congressional, gubernatorial. Council of State, General Assembly, and
judicial) take place. See Session Law 2017-6, § 7.(h) (amending § 163-30).
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94. As it did with the 2-2 county board stmcture, the Cooper II Court did not rule on
whether the rotating chair provisions, on their own, violated separation of powers, but it held that
they had "the effect of compounding the separation-of-powers violation." Cooper II, Slip Op. at
41.
95. Because, on their own, they infringe on the Governor' s ability to supervise the work
of the agency tasked with enforcing election laws, the rotating chair provisions in House Bill 90
and Session Law 2017-6 violate separation of powers.
B. PART VIII OF HOUSE BILL 90 AND SESSION LAW 2017-6 CREATE IMMEDIATE,
IRREPARABLE HARM.
96. House Bill 90 was passed by the General Assembly on February 13, 2018, and it
was presented to the Governor on that date. Because the General Assembly adjourned its session
following enactment of House Bill 90, it will automatically become law on March 16,2018, unless
the Governor vetoes it.
97. The Governor has publicly stated that he opposed the elections law provisions of
Part VIII of House Bill 90, but he will neither sign, nor veto, the law because of the other provisions
unrelated to the SBOE. As a result. Part VIII of House Bill 90 will become law on March 16,
2018, unless it is enjoined.
98. Unless Part VIII of House Bill 90 and the unamended provision of Session Law
2017-6 are enjoined, on March 16, 2018, the SBOE and the State Ethics Commission will both be
abolished. Session Law 2017-6, §§ 5(a) to 5(d); 7(a), 7(c) to 7(g).
99. The New State Board that replaces the SBOE and Ethics Commission will be
appointed pursuant to an unconstitutional statutory scheme that:
a. Violates the constitutional guarantee of separation of powers, N.C. CONST.

art. I, § 6, in plain violation of the Supreme Court's holding in Cooper II;
and
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b. Interferes with the Governor's constitutional duty to ensure the laws are
faithfully executed, id. art. I, § 6; art. Ill, §§ 1, 5(4), in plain violation of the
Supreme Court's holding in Cooper II.
100. Accordingly, much of the constitutional harm to the Office of the Governor will
occur immediately if House Bill 90 and the unamended provisions of Session Law 2017-6 are
allowed to take effect. Moreover, if not enjoined during the pendency of this litigation, the
unconstitutional New State Board (and newly restructured county boards under Session Law 2017-
6) will be charged with enforcing the State's election laws during the 2018 national, statewide, and
local elections.
101. That is just one reason why, under North Carolina law, a threatened constitutional
violation is per se irreparable harm sufficient to support a preliminary injunction. See, e.g.. High
Point Surplus Co. v. Pleasants, 264 N.C. 650, 653, 142 S.E.2d 697, 700 (1965) ("[E]quity
jurisdiction will be exercised to enjoin the threatened enforcement of a statute or ordinance which
contravenes our Constitution, where it is essential to protect property rights arid the rights of
persons against injuries otherwise irremediable."); State v. Underwood, 283 N.C. 154, 163,195
S.E.2d 489,495 (1973) (citing Pleasants); S. S. Kresge Co. v. Tomlinson, 275 N.C. 1, 8,165 S.E.2d
236, 240 (1969) (same).
COUNT 1: DECLARATORY JUDGMENT
PART VIII OF HOUSE BILL 90 AND SESSION LAW 2017-6 VIOLATE

SEPARATION OF POWERS GUARANTEED BY THE NORTH CAROLINA CONSTITUTION.
102. The Governor restates and incorporates by reference the preceding paragraphs of
this Complaint, as if fully set forth herein.
103. A present and real controversy exists between the parties as to the constitutionality
of Part VIII of House Bill 90, together with the unamended portions of Session Law 2017-6.
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104. Part VIII of House Bill 90, together with the unamended portions of Session Law
2017-6, unconstitutionally prevents the Governor from performing his core executive function of
ensuring that the laws are faithfully executed in several respects.
105. As alleged herein. Part VIII of House Bill 90, together with the unamended portions
of Session Law 2017-6, denies the Governor his ability to control the New State Board, in
contravention of the Supreme Court's holding in Cooper II.
106. In addition. Part VIII of House Bill 90 unconstitutionally interferes with the
Governor's constitutional responsibility to ensure that a majority of the New State Board reflects
the Governor's views and priorities and therefore unconstitutionally constrains the Governor's
responsibility to supervise the New State Board and to ensure that the State's elections laws are
faithfully executed.
107. Accordingly, Part VIII of House Bill 90, together with the unamended portions of
Session Law 2017-6, violates the Separation of Powers Clause (Article I, Section 6) and the
Executive Power Clauses (Article III, Sections 1 and 5(4)) of the North Carolina Constitution and
is therefore void and of no effect.
108. Pursuant to N.C. Gen. Stat. §§ 1-253-1-267 and North Carolina Rule of Civil
Procedure 57, the Governor is entitled to a judgment declaring that Part VIII of House Bill 90,
together with the unamended portions of Session Law 2017-6, is unconstitutional and is therefore
void and of no effect.
PART VIII OF HOUSE BILL 90 VIOLATES SEPARATION OF POWERS

GUARANTEED BY THE NORTH CAROLINA CONSTITUTION.
-26-
of Part VIII of House Bill 90 on its own.
111. Part VIII of House Bill 90, on its own, unconstitutionally prevents the Governor
from performing his core executive function of ensuring that the laws are faithfully executed in
several respects.
112. As alleged herein, Part VIII of House Bill 90, on its own, denies the Governor his
ability to control the New State Board, in contravention of the Supreme Court's holding in Cooper
II.
113. In addition. Part VIII of House Bill 90 unconstitutionally interferes with the
Governor's constitutional responsibility to ensure that a majority of the New State Board reflects
the Governor's views and priorities and therefore unconstitutionally constrains the Governor's
responsibility to supervise the New State Board and to ensure that the State's elections laws are
faithfully executed.
114, Accordingly, Part VIII of House Bill 90, on its own, violates the Separation of
Powers Clause (Article I, Section 6) and the Executive Power Clauses (Article III, Sections 1 and
5(4)) of the North Carolina Constitution and is therefore void and of no effect.
Procedure 57, the Governor is entitled to a judgment declaring that Part VIII of House Bill 90 is
unconstitutional and is therefore void and of no effect.
COUNT 3; DECLARATORY JUDGMENT
SECTION 17 OF SESSION LAW 2017-6 VIOLATES SEPARATION OF POWERS GUARANTEED BY

THE NORTH CAROLLNA CONSTITUTION.
-27-
of Section 17 of Session Law 2017-6, which legislatively appoints the Executive Director of the
New State Board until at least May 2019.
118. Section 17 of Session Law 2017-6 unconstitutionally prevents the Governor from
performmg his core executive function of ensuring that the laws are faithfully executed in. several
respects.
119. As alleged herein. Section 17 of Session Law 2017-6 denies the Governor his
ability to control the New State Board, in contravention of the Supreme Court's holding in Cooper
II.
120. Accordingly, Section 17 of Session Law 2017-6 violates the Separation of Powers
Clause (Article I, Section 6) and the Executive Power Clauses (Article III, Sections 1 and 5(4)) of
the North Carolina Constitution and is therefore void and of no effect.
Procedure 57, the Governor is entitled to a judgment declaring that Section 17 of Session Law
2017-6 is unconstitutional and is therefore void and of no effect.
SECTION 7.(H) OF SESSION LAW 2017-6 VIOLATES SEPARATION OF POWERS GUARANTEED BY

THE NORTH CAROLINA CONSTITUTION.
of Section 7.(h) of Session Law 2017-6, which establishes 2-2 county boards of elections.
-28-
124. Section 7.(h) of Session Law 2017-6 unconstitutionally prevents the Governor &om
performing his core executive function of ensuring that the laws are faithfully executed in several
respects.
125. As alleged herein. Section 7.(h) of Session Law 2017-6 denies the Governor his
ability to control the county boards of election, in contravention of the Supreme Court's holding
in Cooper II.
126. Accordingly, Section 7.(h) of Session Law 2017-6 violates the Separation of
Powers Clause (Article I, Section 6) and the Executive Power Clauses (Article III, Sections 1 and
5(4)) of the North Carolina Constitution and is therefore void and of no effect.
Procedure 57, the Governor is entitled to a judgment declaring that Section 7.(h) of Session Law
2017-6 is unconstitutional and is therefore void and of no effect.
THE ROTATING CHAIR PROVISIONS OF HOUSE BILL 90 AND SESSION LAW 2017-6 VIOLATE
SEPARATION OF POWERS GUARANTEED BY THE NORTH CAROLINA CONSTITUTION.
of Section 7.(h) of Session Law 2017-6 and Section 8.(b) of House Bill 90 (collectively, the
"Rotating Chair Provisions"), which mandate that Republicans will chair the State and county
boards during all statewide election cycles.
130. The Rotating Chair Provisions unconstitutionally prevent the Governor from
perfonning his core executive function of ensuring that the laws are faithfully executed in several
respects.
-29-
131. As alleged herein, the Rotating Chair Provisions deny the Governor his ability to
supervise the State and county boards of election, in contravention of the Supreme Court's holding
in Cooper II.
132. Accordingly, the Rotating Chair Provisions violate the Separation of Powers Clause
(Article I, Section 6) and the Executive Power Clauses (Article III, Sections 1 and 5(4)) of the
North Carolina Constitution and are therefore void and of no effect.
Procedure 57, the Governor is entitled to a judgment declaring that the Rotating Chair Provisions
are unconstitutional and is therefore void and of no effect
COUNT 6: INJUNCTIVE RELIEF
THE GOVERNOR IS ENTITLED TO PRELIMINARY AND PERMANENT INJUNCTTÊ RELIEF
this Complaint, as if folly set forth herein.
135. The Governor is entitled to a preliminary and permanent injunction pursuant to
North Carolina Rule of Civil Procedure 65 barring Part VIII of House Bill 90, together with the
unamended portions of Session Law 2017-6, from taking effect.
136. Without such relief, the unconstitutional statute will remain in effect during the
pendency of this litigation, preventing the Governor from performing his core executive function
of ensuring that the laws are faithfully executed.
137. Part VIII of House Bill 90, together with the unamended portions of Session Law
2017-6, threatens immediate and irreparable harm to Governor Cooper, the Office of the Govemor,
and the people of North Carolina whom he was elected to serye.
138. As set forth above, the Governor is likely to succeed on the merits of his claims.
-30-
139. Providing the Governor the injunctive relief he seeks is necessary to protect his
rights during the course of this litigation.
140. The balance of the equities and the public interest strongly favor granting the
injunctive relief sought by the Governor.
MOTION FOR TEMPORARY RESTRAINING ORDER

AND MOTION FOR PRELIMINARY INJUNCTION
142. As described above. Part VIII of House Bill 90, together with the unamended
portions of Session Law 2017-6, violates core guarantees of the North Carolina Constitition and
directly contravenes the Supreme Court's recent holding in Cooper II, with each such violation
constituting irreparable harm as a matter of law. Thus no further showing of irreparable harm is
required.
143. Even if the Court required a further showing, as a matter of law, the facts alleged
above, and the other facts of record establish irreparable harm to Office of the Governor if Part
VIII of House Bill 90, together with the unamended portions of Session Law 2017-6, is allowed
to take effect on March 16,2018.
144. As set forth above, Part VIII of House Bill 90 makes two limited changes to Session
2017-6 and therefore is premised on the unamended provisions of that statute going into effect in
tandem with House Bill 90. The Governor and the General Assembly disagree whether the
Supreme Court's decision in Cooper II invalidated Session Law 2017-6 in its entirety, and that
question is currently being litigated in Cooper II. Accordingly, Part VIII of House Bill 90 should
not be permitted to go into effect while there remains uncertainty over the status of Session 2017-
6.
-31-
145. As set forth above, the Governor is likely to succeed on the merits of his claims.
146. Providing the Governor the injunctive relief sought herein is necessary to protect
the Governor's rights during the course of this litigation.
147. The temporary and preliminary injunctive relief sought by the Governor will
preserve the status quo under which the elections of 2016 were conducted while the Court
adjudicates the constitutionality of Part VIII of House Bill 90.
148. The balance of the equities and the public interest strongly favor granting the
injunctive relief sought by the Governor.
149. Accordingly, the Governor moves for a temporary restraining order and
preliminary injunction barring Part VIII of House Bill 90 from taking effect.
PRAYER FOR JUDGMENT
WHEREFORE, Plaintiff Governor Cooper prays as follows:
1. That the Court issue a temporary restraining order and prelmiinary injunction
pursuant to North Carolina Rule of Civil Procedure 65 barring Part VIII of House Bill 90, together
with the unamended portions of Session Law 2017-6, from taking effect during the pendency of
this litigation;
2. That the Court enter a declaratory judgment and injunction, pursuant to N.C. Gen.
Stat. § 1-253, et seq., and North Carolina Rules of Civil Procedure 57 and 65, declaring that
Part VIII of House Bill 90, together with the unamended portions of Session Law 2017-6, is
unconstitutional and therefore void and of no effect;
3. That the Court enter a declaratory judgment and injimction, pursuant to N.C. Gen.
Stat. § 1-253, et seg., and North Carolina Rules of Civil Procedure 57 and 65, declaring that
Part VIII of House Bill 90, on its own, is unconstitutional and therefore void and of no effect;
-32-
Stat. § 1-253, etseq., and North Carolina Rules of Civil Procedure 57 and 65, declaring that Section
17 of Session Law 2017-6 is unconstitutional and therefore void and of no effect;
Stat. § 1-253, etseq., and North Carolina Rules of Civil Procedure 57 and 65, declaring that Section
7.(h) of Session Law 2017-6 is unconstitutional and therefore void and of no effect;
Stat. § 1-253, et seq., and North Carolina Rules of Civil Procedure 57 and 65, declaring that the
Rotating Chair Provisions are unconstitutional and therefore void and of no effect;
7. That the Court award to Plaintiff his. costs and expenses, pursuant to applicable
statutory and common law, including N.C. Gen. Stat. §§ 6-20, and 1-263; and
8. That the Court grant such other and further relief as the Court deems just and proper.
-33-
Respectfully submitted this the 13th day of March, 2018.
JimW.PhiUips;Jr.
N.C. State Bar No. 12516
inhillips(%brookspierce.com
Eric M. David
N.C. State Bar No. 3 8118
edavid@brookspierce. corn
Daniel F. E. Smith
dsmith(%brookspierce. corn
Charles E. Cable
ccoble@,brookspierce.com
Attorneys for Plaintiff Roy A. Cooper, III, Governor

of the State of North Carolina
OF COUNSEL:
BROOKS, PIERCE, MCLENDON,
HUMPHREY & LEONARD, L.L.P.
Suite 2000 Renaissance Plaza
230 North Elm Street
Greensboro, NC 27401
(336)373-8850
(336) 378-1001 (fax)
34-
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF WAKE 18CVS
ROY A. COOPER, III, in his official capacity

as GOVERNOR OF THE STATE OF
NORTH CAROLINA,
Plaintiff,
V.
VERIFICATION
PHILIP E. BERGER, in his official capacity
as PRESIDENT PRO TEMPORE OF THE
NORTH CAROLINA SENATE; TIMOTHY
K. MOORE, in his official capacity as
SPEAKER OF THE NORTH CAROLINA
HOUSE OF REPRESENTATIVES; and THE
STATE OF NORTH CAROLINA,
Defendants.
I, Kristi Jones, being first duly sworn, depose and say:
I am Chief of Staff to Roy Cooper, Governor of the State of North Carolina, and I have
the authority to execute this verification on behalf of the Governor, acting in his official capacity.
I have read the COMPLAINT filed in this matter on behalf of Governor Cooper, acting in
his official capacity, and can verify based on personal knowledge to the factual contents thereof,
and that the same is tme to the best of my knowledge or are believed by me to be true based upon
reasonable inquiry.
[SIGNATURE ON FOLLOWING PAGE]

{(AM^
KRISTI JONES
Chief of Staff
Office of the Governor
of the State of North Carolina
Wake County, North Carolina
I certify that the following person personally appeared before me this day, acknowledging
to me that she signed the foregoing document: Kristi Jones
Date : 3 - /^?- c?^/^ iP^nOA uy} i<- ^>GO^-

[Qf&cial Signature of Notary]
[Official Seal] ~^^\o^ru,^ A- A^ r^ôtary Public
[Notary's prmted or typed name]
My Commission Expires: ^- /~ c^(o<^ °

Demarvis K. Barrett
Notary Public
Wake County, NC
My Commission Expires 5-1-2020
EXHIBIT A
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2017
HOUSE BD.L 90
RATIFIED BILL
AN ACT TO PROVIDE ADDITIONAL FUNDS TO SCHOOLS LOCATED IN COUNTIES

THROUGH WHICH THE ATLANTIC COAST PIPELINE RUNS; TO PHASE IN
CLASS SIZE REQUIREMENTS OVER FOUR YEARS; TO CREATE AN
ALLOTMENT FOR PROGRAM ENR^NCEMENT TEACHERS; TO MODIFY
TRANSFER REQUIREMENTS FOR THE CLASSROOM TEACHER AND PROGRAM
ENHANCEMENT TEACHER ALLOTMENTS; TO PHASE IN FUNDING OF
PROGRAM ENHANCEMENT TEACHERS STARTING IN 2018-2019; TO MAKE
CHANGES TO PERSONAL EDUCATION SAVINGS ACCOUNTS; TO APPROPRIATE
FUNDS FOR THE NC PRE-K PROGRAM IN FUTURE YEARS; AND TO
IMPLEMENT THE NORTH CAROLINA SUPREME COURT'S HOLDING IN COOPER
V. BERGER BY GIVING THE GOVERNOR INCREASED CONTROL OVER THE
BIPARTISAN STATE BOARD OF ELECTIONS AND ETHICS ENFORCEMENT.
The General Assembly of North Carolina enacts:
PART I. ACP/MOU/ADDITIONAL FUNDING FOR PUBLIC SCHOOLS

SECTION l.(a) Purpose. - The purpose of this section is to ensure that the local
school administrative units (school units) located, in whole or in part, in the counties directly
impacted by placement of the Atlantic Coast Pipeline (ACP) within their respective
jurisdictions shall receive the benefit of any funds provided or gifted for the benefit of the State
or the people of the State as a result of the ACP. In addition, the General Assembly finds that
compensatory mitigation payments for proposed impacts to streams, buffers, and wetlands in
those areas were assessed under the 401 Certification issued by the Department of
Environmental Quality to the Atlantic Coast Pipeline, LLC, on January 26,2018.
SECTION l.(b) Memorandum of Understanding. - The Mitigation Project
Memorandum of Understanding by and between Roy Cooper, Governor of North Carolina, in
his Official Capacity and Atlantic Coast Pipeline, LLC, dated January 25, 2018, (MOU)
purports to provide funding in the form of a gift, voluntary contribution, or otherwise (funds) to
be used for (i) mitigation for the unavoidable effects of the ACP on the interior forest habitats,
open-space lands, waterbodies, and natural resources of the communities along the ACP's
route; (ii) support and funding for economic development in the counties that would be
impacted by the ACP; and (iii) extension of renewable energy projects into certain local
communities which may stand to be affected by the ACP's operation. Notwithstanding the
terms of the MOU, the allocation of funds to State and local entities, officers, or officials falls
within the purview of the General Assembly; and, therefore, the General Assembly authorizes
the acceptance of these funds only if the requirements of this section are met.
SECTION l.(c) Required School Unit Allocation. - Notwithstanding any other
provision of law, a state or local entity, officer, or official acting within an official capacity
may accept, direct the use of, or otherwise participate in directing the disbursement of the funds
received pursuant to the MOU, or any successive contract or document evidencing an intent to
agree that funds be used for the benefit of the State or the people of the State for effects of the
ACP, only if the school units located, in whole or in part, in counties through which the ACP
*H90-V-4*
runs are the sole recipients of these funds. Of the funds received, one-half shall be allocated
among the school units based on the allotted average daily membership for the 2017-2018
fiscal year as determined and certified by the State Board of Education (ADM) as follows: the
ADM allocation to a school unit is equal to one-halfofthe total amount of the funds multiplied
by a fraction, the numerator of which is the ADM of the school unit located in the county
through which the ACP runs and the denominator of which is the ADM of all school units
located in all counties through which the ACP in the State mns. The remaining funds shall be
allocated among the school units based on linear ACP miles as follows: the linear ACP miles
allocation to a school unit is equal to the remainder of the total amount of the funds multiplied
by a fraction, the numerator of which is the linear miles of the ACP in the county m which the
school unit is located and the denominator of which is the total linear miles of the ACP in the
State. If more than one school unit is located in a county through which the ACP runs, the
linear ACP miles allocation for that county shall be allocated among the school units pro rata
based on ADM.
SECTION l.(d) Reports. - Each school unit receiving funds pursuant to subsection
(c) of this section shall report to the Department of Public Instruction on funds received within
10 days of receipt of the funds. The Department of Public Instruction shall collate all reports
required by this section and remit the collated information to the Joint Legislative Commission
on Governmental Operations quarterly. The first submission of collated information shall be
remitted no later than September 1, 2018, and the school units shall continue to report, and the
Department shall continue to remit the collated infomiation until the Department certifies that
all funds governed by the MOU have been received by the school units.
SECTION l.(e) No Conflict. - The legislative power of the State is vested in the
General Assembly of the State of North Carolina. The Legislature must declare the policy of
the law, fix legal principles which are to control in given cases, and provide standards for
guidance in executing the law. The Governor shall take care that the laws be faithfully
executed. Therefore, nothing in this section shall be construed, or is intended, to (i) be in
conflict with the rights of any person or any mandatory provision of federal law or to infringe
on the constitutional powers of the Governor to execute the laws of this State or (ii) preclude or
supersede any mitigation agreement entered into under applicable State or federal law.
SECTION l.(f) Effective date. - This section becomes effective January 25,2018.
PART II. CLASS SIZE PHASE IN

SECTION 2.(a) Section l(b) of S.L. 2017-9 reads as rewritten:
"SECTION l.(b) Notwithstanding G.S. 115C-301, as amended by this act and any other
provision of law, for the 2017-2018 and 2018-201 9 school yea^years^ the average class size for
kindergarten through third grade in a local school administrative unit shall not exceed one
teacher per 20 students. At the end of the second school month and for the remainder of the
school year, the size of an individual class in kindergarten through third grade shall not exceed
one teacher per 23 students. The class size requirements set forth in G.S. 115C 301, as
amended by this act, shall apply beginning with the 2018 2019 school year."
SECTION 2.(b) Notwithstanding G.S. 115C-301, as amended by this act, and any
other provision of law, for the 2019-2020 school year, the average class size for kindergarten
through third grade in a local school administrative unit shall not exceed one teacher per 19
students. At the end of the second school month and for the remainder of the school year, the
size of an individual class in kindergarten through third grade shall not exceed one teacher per
22 students.
SECTION 2.(c) Notwithstanding G.S. 115C-301, as amended by this act, and any
other provision of law, for the 2020-2021 school year, the average class size for kindergarten
through third grade in a local school administrative unit shall not exceed one teacher per 18
students. At the end of the second school month and for the remainder of the school year, the
Page 2 House Bill 90-Ratified

size of an individual class in kindergarten through third grade shall not exceed one teacher per
21 students.
SECTION 2.(d) The class size requirements set forth in G.S. 115C-301, as
amended by this act, shall apply beginning with the 2021-2022 school year.
. PART III. PROGRAM ENHANCEMENT TEACHER ALLOTMENT

SECTION 3.(a) Effective July 1, 2018, G.S. 115C-301 is amended by adding a
new subsection to read:
"(âl} Teacher Position Allotments. - Funds for classroom teachers in the State Public
School Fund shall consist of the following position allotments:
U} Classroom teachers for kindergarten through twelfth grade, which shall
include funds for program enhancement teachers, self-contained exceptional
children teachers, math, science, and commrter teachers, and matchmg
benefits.
{2} Program enhancement teachers for kindergarten through fifth sa-ade."
SECTION 3.(b) Effective July 1, 2021, G.S. 115C-301(al), as enacted by
subsection (a) of this section, reads as rewritten:
"(al) Teacher Position Allotments. - Funds for classroom teachers in the State Public
School Fund shall consist of the following position allotments:
(1) Classroom teachers for kindergarten through twelfth grade, which shall
include funds for program enhancement teacherQ,teachers for sixth through
twelfth grade, self-contained exceptional children teachers, math, science,
and computer teachers, and matching benefits.
(2) Program enhancement teachers for kindergarten through fifth grade."
SECTION 3.(c) G.S. 115 C-301 (d) reads as rewritten:
"(cl) Class Size Exceptions for Kindergarten Through Third Grade. - Class size
requirements for kindergarten through third grade provided in subsection (c) of this section
shall not apply to <teftkhe following classes:
d) Dual language immersion classes. For the purposes of this subsection, dual
language immersion classes are classes in which (i) at least one-third of the
students' dominant language is English and (ii) instruction involves both
English and a target foreign language with a minimum of fifty percent (50%)
of core content taught in the target foreign language in order to promote dual
language proficiency for all students.
{2} Program enhancement classes."
SECTION 3.(d) G.S. 115C-301 is amended by adding a new subsection to read:
"{c2} Program Enhancement Teacher Allotment for Kindergarten Through Fifth Grade. -
U} Definitions. - For the purposes of this section, "program enhancement"
refers_to any of the following:
a; Arts disciplines, including dance, music, theater, and the visual arts.
b. Physical education and health programs^
c. World languages.
d. Other supplemental classes as defined by the State Board of
Education.
(2) Allotment ratio calculation. - The allotment ratio for kindergarten through
fifth grade program enhancement teachers shall be one teacher per 191
students."
SECTION 3.(e) G.S. 115C-301(f)(2)a. reads as rewritten:
"a. The number of program enhancement teachers. For the purposes of
this subdivision, program enhancement teachers arc teachers who
teach any of the following:
House Bill 90-Ratified Page 3

-k Arts disciplines, including dance, muGic, theater, and the
visual arts.
3r Physical education and health programs.
3>- World languages."
SECTION 3.(f) Effective July 1, 2018, Section l(a)(2) of S.L. 1995-450 is
repealed.
PART IV. ALLOTMENT TRANSFER RESTRICTIONS

SECTION 4.(a) Effective July 1, 2018, G.S. 115C-105.25(b) is amended by
adding a new subdivision to read:
"{5d} No positions shall be transferred out of the allocation for program
enhancement teachers for kindergarten through fifth grade except as
provided in this subdivision. Positions allocated for program enhancement
teachers for kindergarten through fifth grade may be converted into positions
allocated for classroom teachers for kindergarten through twelfth grade. For
the purposes of this subdivision. the term "program enhancement" is as
defined in G.S. H5C-301(c2')."
SECTION 4.(b) Effective July 1, 2021, G.S. 115C-105.25(b), as amended by
subsection (a) of this section, reads as rewritten:
"(b) Subject to the following limitations, local boards of education may transfer and may
approve transfers of funds between funding allotment categories:
(5a) No positions shall be transferred out of the allocation for classroom teachers
for kindergarten through _twelfth grade,,êxcept as prQyidecL in this
subdivision. Positions allocated for classroom teachers may be converted to
dollar equivalents to contract for visiting international exchange teachers
through a visiting international exchange teacher program approved by the
State. These positions shall be converted at the statewide average salary for
classroom teachers, including benefits. The converted funds shall be used
only to provide visiting international exchange teachers with salaries
commensurate with their experience levels, to provide any State-approved
bonuses, and to cover the costs associated with supporting visiting
international exchange teachers within the local school administrative unit,
including programming and related activities, background checks, medical
coverage, and other program administration services in accordance with the
federal regulations for the Exchange Visitor Program, 22 C.F.R. Part 62.
(5b) Except as provided in subdivision (5a) of this subsection, poGitionoPositions
allocated for classroom tcuchoFS-a-ft4-instructional support personnel may be
converted to dollar equivalents for any purpose authorized by the policies of
the State Board of Education. These positions shall be converted at the
salary on the first step of the "A" Teachers Salary Schedule. Certified
position allotments shall not be transferred to dollars to hire the same type of
position.
PART V. APPROPRIATIONS FOR PROGRAM ENHANCEMENT TEACHERS

SECTION 5.(a) Notwithstanding G.S. 143C-5-2, for the 2018-2019 fiscal year,
there is appropriated from the unappropriated fund balance of the General Fund to the
Department of Public Instruction the sum of sixty-one million three hundred fifity-nine
thousand two hundred twenty-five dollars ($61,359,225) in recurring funds for a position
allotment for program enhancement teachers for kindergarten through fifth grade.

SECTION 5.(b) Section 2.1 ofS.L. 2017-57 reads as rewritten:
"SECTION 2.1. Appropriations from the General Fund of the State for the maintenance of
the State departments, institutions, and agencies, and for other purposes as enumerated, are
made for the fiscal biennium ending June 30, 2019, according to the following schedule:
Current Operations - General Fund FY 2017-2018 FY 2018-2019
EDUCATION
Department of Public Instruction 9,125,109,1269.486.468.651
TOTAL CURRENT OPERATIONS -

GENERAL FUND ... $23,650,253,95823,711,613.183"
SECTION 5.(c) Section 2.2(a) ofS.L. 2017-57 reads as rewritten:
"SECTION 2.2.(a) The General Fund availability used in developing the 2017-2019 fiscal
biennial budget is shown below:
FY 2017-2018 FY 2018-2019
Unappropriated Balance $208,607,416 $ 499,303,328
Disaster Recovery Appropriations (S.L. 2016-124) (200,928,370) 0
Transfer From Savings Reserve 100,928,370 0
Revised Unappropriated Balance 108,607,416 499,303,328
Over Collections FY 2016-17 580,600,000 0

Reversions FY 2016-17 271,000,000 0
Replenish Savings Reserve (S.L. 2016-124) (100,928,370) 0
Earmarkings of Year End Fund Balance:
Savings Reserve (263,000,000) 0
Repairs and Renovations (125,000,000) 0
Beginning Unreserved Fund Balance 471,279,046 499,303,328
Revenues Based on Existing Tax Structure 22,303,700,000 23,299,200,000
Non-tax Revenues
Investment Income 60,100,000 60,600,000
Judicial Fees 240,900,000 240,500,000
Disproportionate Share 164,700,000 149,600,000
Insurance 75,500,000 75,500,000
Master Settlement Agreement (MSA) 127,200,000 127,200,000
Other Non-Tax Revenues 180,600,000 182,900,000
Subtotal Non-tax Revenues 849,000,000 836,300,000
Total General Fund Availability 23,623,979,046 24,634,803,328
Adjustments to Availability: 2017 Session

Tax Law Changes (6,900,000) (521,800,000)
Transfer of Taxes From Short-Term Lease

or Rental of Motor Vehicles to Highway Fund (10,000,000) (10,000,000)
Transfer to Savings Reserve (S.L. 2017-5) 0 (72,090,000)
Transfer Additional MSA funds to Golden L.E.A.F. (7,500,000) (7,500,000)
Transfer to Medicaid Transformation Fund (75,000,000) 0
Transfer from Contingency and Emergency Fund 7,000,000 0
Transfer from Department of Insurance 3,655,405 4,026,728
Transfer from the Department of the State Treasurer (5,453,230) (5,434,773)
Subtotal Adjustments to Availability: 2017 Session (94,197,825) (612,798,045)
Revised General Fund Availability $ 23,529,781,221 $ 24,022,005,283
Less General Fund Net Appropriations (23,030,477,893) (23,652,171,951)
Unappropriated Balance
Remaining $ 499,303,328 $ 369,833,332308.474.107"
SECTION 5.(d) G.S. 115C-301(c2), as enacted by Section 3(d) of this act, is
amended by adding a new subdivision to read:
"{3} Appropriation. - Beginning with the 2019-2020 fiscal year. there is
appropriated from the General Fundto the Department of Public Instruction
for the allotment for program enhancement teachers for kindergarten through
fifth grade an amount eaual to the percentage of the total funds required to
alloLBrogram enhancement teacher positions for kindergarten through fifth
grade on a basis of one teacher per 191 students for each fiscal year as
follows;
Fiscal Year Appropriation
2019-2020 50%
2020-2021 75%
2021-2022 and each subsequent fiscal yearthereafter 100%.
When developing the base budget, as defined by G.S. 143C-1-L for each
fiscal year specified in this subdivision, the Director of the Budget shall
mclude the appropriated amount for that fiscal year."
PART VI. CHANGES TO PERSONAL EDUCATION SAVINGS ACCOUNTS

SECTION 6.(a) G.S. 1150-591(3) reads as rewritten:
"(3) Eligible student. - A student residing in North Carolina who has not yet
received a high school diploma and who meets all of the following
requirements:
a. Meets one of the following criteria:Is eligible to attend a North
Carolina public school pursuant to G.S. 115C-366.
4- Was a full time student (i) assigned to and attending a public
school pursuant to G.S. 115C 366 or (ii) enrolled in a
Department of Defense Elomontary and Secondary School,
established pursuant to 10 U.S.C. § 2164 and located in North
Carolina, durmg the previous semester.
Sr Received scholarship funds for a personal education savmgs
account during the previous school year.
•^T Is entering either kindergarten or the first grade.
4r Is a child in foQtor caro, as dofmcd in G.S. 13 ID 10.2(9).
•&T Is a child whoso adoption docroc was entered not more than
one year prior to Bubmission of the scholarship application.

^r Is a. child whose parent or legal guardian is on full time duty
status in the active uniformed sorvice of the United States,
including mombcrQ of the National Guard and Reserve on
active duty orders pursuant to 10 U.S.C. § 12301, ot ooq., and
10U.S.C.§ 12^101, otocq.
7r Is a child enrolled part time in u public school and part time
in a nonpublic school that exclusively provides oervices for
children with disabilities.
b. Has not enrolled in a postsecondary institution in a matriculated
status eligible for enrollment for 12 hours of academic credit.
c. Is a child with a disability, as defined in G.S. 1150-106.3(1),
including, for example, intellectual disability, hearing impairment,
speech or language impairment, visual impairment, serious emotional
disturbance, orthopedic impairment, autism, traumatic brain injury,
other health impairments, specific learning disability, or disability as
may be required to be included under IDEA.
d. Has not been placed in a nonpublic school or facility by a public
agency at public expense."
SECTION 6.(b) G.S. 115C-591 is amended by adding a new subdivision to read:
"{5a} Part-time student. - A child enrolled part time in a public school and part
time in a nonpublic school that exclusively provides services for children
with disabilities."
SECTION 6.(c) G.S. 115C-592(b) reads as rewritten:
"(b) Scholarship Awards. - Scholarships shall be awarded each year for an amount not to
exceed nine thousand dollars ($9,000) per eligible student for the fiscal year in which the
application is roccivod.received, except for eligible part-time students, who shall be awarded
scholarships each year for an amount not to exceed four thousand five hundred dollars ('$4.500)
per eligible student for the fiscal year in which the application is received. Recipients shall
receive scholarship funds deposited in equal amounts to a PESA in each quarter of the fiscal
year. The first deposit of funds to a PESA shall be subject to the execution of the parental
agreement required by G.S. 115C-595. The parent shall then receive a debit card with the
prepaid funds loaded on the card at the beginning of the fiscal year. After the initial
disbursement of funds, each subsequent, quarterly disbursement of funds shall be subject to the
submission by the parent of an expense report. The expense report shall be submitted
electronically and shall include documentation that the student received an education, as
described in G.S. 115C-595(a)(l), for no less than 35 days of the applicable quarter. The debit
card shall be renewed upon the receipt of the parental agreement under G.S. 115C-595 for
recipients awarded scholarship funds in subsequent fiscal years. Any funds remaining on the
card at the end of the fiscal year may be carried forward to the next fiscal year if the card is
renewed. Any funds remaining on the card if an agreement is not renewed shall be returned to
the Authority."
SECTION 6.(d) G.S. 115C-595(a)(2) reads as rewritten:
"(2) Unless the student is an eligible student pursuant to G.S. 115C 591(3)a.7., a
part-time eligible student, release a local education agency in which the
student is eligible to attend under G.S. 115C-366 of all obligations to
educate the eligible shident while the eligible student is receiving
scholarship funds under this Article. A parent of a student, other than a
student who is an eligible student pursuant to G.S. 115C 591(3)a.7.,other
than a part-time eligible student, who decides to enroll the student into the
local education agency or other North Carolina public school during the term

of the agreement shall notify the Authority to request a release from the
agreement and shall return any unexpended funds to the Authority."
SECTION 6.(e) Notwithstanding G.S. 115C-592(a), for the 2018-2019 school year
only, the State Education Assistance Authority shall give priority in award of scholarships to
applicants with one or more of the following disabilities:
(1) Autism.
(2) Developmental disability.
(3) Hearing impairment.
(4) Moderate or severe intellectual disability.
(5) Multiple, permanent orthopedic impairments.
(6) Visual impairment;
PART VII. NC PRE-K STATUTORY APPROPMATION

SECTION 7. Chapter 143B of the General Statutes is amended by adding a new
section to read:
"S 143B-168.10B. NC Prekindersarten Prosram Funds.
Thejjeneral Assembly finds_that due to the continued growth and ongoing need in this
Stateto_Brovide early childhood services and education to North Carolina children from birth to
five years, it is imperative that the State provide an increase in funds to the General Fund for
two fiscaL years for the NC Prekinderearten fNC Pre-K) program. To that end, there is
apDropriated from the General Fund to the Department of Health and Human Services, Division
of Child Development and Early Education, the followingâmounts each fiscal year to provide
fundsjorNC Pre-K slots for the NC Pre-K nro gram:
Fiscal Year Appropriation
2019-2020 $82.001.394
2020-2021 and each subsequent fiscal year thereafter $91.351.394
When develoDing the base budget, as defined by G.S. 143C-1-1. for each fiscal year
specified in this section, the Director of the Budget shall include the appropriated amount
specifiedjn this section for that fiscal year/'
PART VIII. IMPLEMENT THE NORTH CAROLINA SUPREME COURT'S

HOLDING IN COOPER V. BERGER BY GIVING THE GOVERNOR INCREASED
CONTROL OVER THE BIPARTISAN STATE BOARD OF ELECTIONS AND
ETHICS ENFORCEMENT
SECTION 8.(a) The General Assembly finds that the legislative intent in the
enactment of S.L. 2017-6 and establishment of the Bipartisan State Board of Elections and
Ethics Enforcement was to continue the practice of having an independent, quasi-judicial body
for elections and ethics enforcement for the State and consolidate those bodies under a single
entity. The General Assembly finds that the entity enforcing these laws must have sufficient
distance from political interference due to the potential for abuse of oversight of elections and
ethics investigations for partisan purposes. The General Assembly further finds that
appointment of a State Board member who is not affiliated with the two largest political parties
will foster nonpartisan decision-making by the State Board. As such, by amending the section
of the General Statutes establishing the membership of the State Board enacted in S.L. 2017-6,
the purpose of this legislation is to implement the decision of the North Carolina Supreme
Court on January 26, 2018, in Cooper V. Berger (No. 52PA17-2) to give the Governor
executive control over the Bipartisan State Board of Elections and Ethics Enforcement and to
provide for representation on the State Board by unaffiliated and third-party voters.
SECTION 8.(b) G.S. 163A-2 reads as rewritten:
"§163A-2. Membership.

(a) The State Board shall consist of eigh^-nine individuals registered to vote in North
Carolina, appointed by the Governor, as follows:
H} four of whom shall bo ofFour individuals registered with the political party
with the highest number of registered affiliates affiliates in the State, from a
list of six nominees submitted by the State party chairs of that party.
{2} and four of whom shall bo of Four individuals registered with the political
party with the second highest number of registered affiliateG,affiliates in the
State, from a list of six nominees submitted by the State party chairs of that
party.
{3} One mdividual not registered with either the political party with the largest
number of registered affiliates in thejitatôr of the_ political party with the
second-largest number of registered affiliates in the State, from a list of two
nominees selected by the other eight members of the State Board.
The number of registered affiliates shall be as reflected by the latest registration statistics
published by the State Board. The Governor shall appoint four members each from a list of six
nominees Gubmittcd by the State party chairs of the two political parties with the highest
number of registered uffiliatoG, as reflected by the latest registration GtatiGtico published by the
State Board. The Governor shall make all appointments promptlv upon receipt of the list of
nominees from each nominating entity and in no instance^hall appoint later than 30 days after
receipt of the list.
fal) Within 14 days of appointment by the Governor of the eight members appointed
under subdivisions CD and (2) of subsection (a) ofthisêction, the eight members shall hold an
initial appointment selection meeting for the sole purpose of selecting two nominees who meet
the qualifications for appointment under subdivision f3) of subsection (a) of this section and
shall promptly submit thosejiamesjto the Governor. No additional actions, other than the oath
of office, shall be taken by the eight members appointed under subdivisions (1) and f2) of
subsection fa) of this section at the^ppointment selection meeting.
(c) Members shull be removed by the Governor from the State Board only for
misfeasancc, mulfoasance, or nonfeasanco. Violation of G.S. 163A 3 (d) shall bo considered
eefifeasaHeerMembers ma.y_be_removed from the State Board by the Governor, acting in the
Governor's discretion. Vacancies created on the State Board by removal from office by the
GovemoLshall be filled in accordance with subsection Cd) of this section.
(d) Any vacancy occurring on the State Board shall be filled by an individual affiliated
with the same political pai4y-efineeting the same appointment criteria under subsection (a) of
this section as the vacating member. Any vacancy occurring in the State Board shall be filled
by the Governor, and the person so appointed shall fill the unexpired term. The Governor shall
fill vacancies as follows:
U) For a vacancy for an appointment under subdivision d) or f2) of subsection
(a} of this section, The-the Governor shall fill the vacancy from a list of two
names submitted by the State party chair of the political party with which the
vacating member was affiliated if that list is submitted within 30 days of the
occurrence of the vacancy.
{2} For a vacancy for an appointment under subdivision f3) of subsection (a) of
this section^thejjovemor shall fill the vacancy from a list of two names
submitted by the remaining members of the State Board if that list is
submitted within 30 days of the occurrence of the vacancy. The State Board
shall hold a meeting within 21 days of the occurrence of the vacancy for the
purpose of selecting two nominees for submission to the Governor to fill the
vacancy.

(e) At the first meeting held after any new appointments are made, the members of the
State Board shall take the following oath:
"I, _, do solemnly swear (or affirm) that I will support the Constitution of the United
States; that I will be faithful and bear true allegiance to the State of North Carolina and to the
constitutional powers and authorities which are or may be established for the government
thereof; that I will endeavor to support, maintain, and defend the Constitution of said State; and
that I will well and truly execute the duties of the office of member of the Bipartisan State
Board of Elections and Ethics Enforcement according to the best of my knowledge and ability,
according to law, so help me God."
(f) At the first meeting in May,held after the appointment of the member under
subdivision (3) of subsection fa) of this section, the State Board shall organize by electing one
of its members chair and one of its members vice-chair, each to serve a two-year temi as such.
In 2017 and every four years thereafter, the chair shall be a member of the political party with
the highest number of registered affiliates, as reflected by the latest registration statistics
published by the State Board, and the vice-chair a member of the political party with the second
highest number of registered affiliates. In 2019 and every four years thereafter, the chair shall
be a member of the political party with the second highest number of registered affiliates, as
reflected by the latest registration statistics published by the State Board, and the vice-chair a
member of the political party with the highest number of registered affiliates.
(g) At the first meeting held after now appointmontQ arc made afitor taking the oath,
after the appointment under subdivision (3) of subsection Ca) of this section, the State Board
shall elect one of its members secretary, to serve a two-year term as such.
11
SECTION 8.(c) Notwithstanding G.S. 163A-2, members appointed to the

Bipartisan State Board of Elections and Ethics Enforcement m 2018 shall serve a term of office
beginning March 1, 2018, and expiring April 30, 2019, and the State Board shall hold its first
meeting in March 2018.
PART DC. EFFECTIVE DATE

SECTION 9. Except as otherwise provided herein, this act is effective when it
becomes law.
In the General Assembly read three times and ratified this the 13 day ofFebmary,
2018.
s/ Joyce Krawiec
Presiding Officer of the Senate
s/ Tim Moore
Speaker of the House of Representatives
Roy Cooper
Governor
Approved _.m. this _ day of_, 2018

EXHIBIT B
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2017
SESSION LAW 2017-6

SENATE BILL 68
AN ACT TO REPEAL G.S. 126-5(D)(2C), AS ENACTED BY S.L. 2016-126; TO REPEAL

PART I OF S.L. 2016-125; AND TO CONSOLIDATE THE FUNCTIONS OF
ELECTIONS, CAMPAIGN FINANCE, LOBBYING, AND ETHICS UNDER ONE
QUASI-JUDICIAL AND REGULATORY AGENCY BY CREATING THE NORTH
CAROLINA BIPARTISAN STATE BOARD OF ELECTIONS AND ETHICS
ENFORCEMENT.
Whereas, the General Assembly finds that bipartisan cooperation with elections
administration and ethics enforcement lend confidence to citizens in the integrity of their
government; and
Whereas, the General Assembly finds that the State Board of Elections, which is
charged with elections administration and campaign finance enforcement, is an "independent
regulatory and quasi-judicial agency and shall not be placed within any principal administrative
department" pursuant to G.S. 163-28; and
Whereas, the General Assembly finds that the State Ethics Commission, which is
charged with mterpretation of the State Government Ethics Act and the Lobbying Law, is
"located within the Department of Administration for administrative purposes only, but shall
exercise all of its powers, including the power to employ, direct, and supervise all personnel,
independently of the Secretary of Administration" pursuant to G.S. 138A-9; and
Whereas, the functions of ethics, elections, and lobbying affect and regulate a
similar group of persons; and
Whereas, the rights of that group of persons affected may include issues directly
related to the First Amendment right of free speech; and
Whereas, the General Assembly finds it beneficial and conducive to consistency to
establish one quasi-judicial and regulatory body with oversight authority for ethics, elections,
and lobbying; and
Whereas, the General Assembly also finds it imperative to ensure protections of free
speech rights and increase public confidence in the decisions to restrict free speech; and
Whereas, the General Assembly finds that voices from all major political parties
should be heard in decisions relating to First Amendment rights of free speech; and
Whereas, the General Assembly finds that important governmental and First
Amendment rights will be impacted in the decisions of the quasi-judicial and regulatory body
regulating ethics, elections, and lobbying; Now, therefore,
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 126-5(d)(2c), as enacted by S.L. 2016-126, is repealed.

SECTION 2. Part I of S.L. 2016-125 is repealed.
SECTION 3. Recodification; Technical and Conforming Changes. - The Revisor
of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General
Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new
Chapter 163A of the General Statutes to be entitled "Elections and Ethics Enforcement Act," as
*S68-V-6*
enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of
the General Statutes other existing statutory laws relating to elections and ethics enforcement
that are located elsewhere in the General Statutes as the Revisor deems appropriate. The new
Chapter 163A of the General Statutes shall have the following structure:
SUBCHAPTER I. GENERAL PROVISIONS.
Article 1. Bipartisan State Board of Elections and Ethics Enforcement.
SUBCHAPTER II. ETHICS AND LOBBYING.
Article 5. General Provisions.
Article 6. Public Disclosure of Economic Interests.
Article 7. Ethical Standards for Covered Persons.
Article 8. Lobbying.
Part 1. Registration.
Part 2. Prohibitions and Restrictions.
Part 3. Reporting.
Part 4. Liaison Personnel.
Part 5. Exemptions.
Part 6. Miscellaneous.
Article 9. Violation Consequences.
SUBCHAPTER III. ELECTION AND ELECTION LAWS.
Article 15. Time of Primaries and Elections.
Part 1. Time of Primaries and Elections.
Part 2. Time of Elections to Fill Vacancies.
Article 16. Election Officers.
Part 1. State Board Powers and Duties.
Part 2. County Boards of Elections.
Part 3. Political Activities by Board of Elections Members and Employees.
Part 4. Precinct Election Officials.
Article 17. Qualifying to Vote.
Part 1. Qualifications of Voters.
Part 2. Registration of Voters.
Part 3. Challenges.
Part 4. HAVA Administrative Complaint Procedure.
Article 18. Political Parties.
Article 19. Nomination of Candidates.
Part 1. Primary Elections.
Part 2. Nomination by Petition.
Part 3. Challenge to Candidacy.
Article 20. Conduct of Primaries and Elections.
Part 1. Precincts and Voting Places.
Part 2. Precinct Boundaries.
Part 3. Voting.
Part 4. Counting Official Ballots, Canvassing Votes, Hearing Protests, and
Certifying Results.
Part 5. Members of United States House of Representatives.
Part 6. Presidential Electors.
Part 7. Presidential Preference Primary Act.
Part 8. Petitions for Elections and Referenda.
Article 21. Absentee Voting.
Part 1. Absentee Ballot.
Part 2. Uniform Military and Overseas Voters Act.
Article 22. Regulation of Election Campaigns.
Page 2 Session Law 2017-6 Senate Bill 68

Part 1. Corrupt Practices and Other Offenses Against the Elective Franchise.
Article 23. Regulating Contributions and Expenditures in Political Campaigns.
Part 1. In General.
Part 2. Disclosure Requirements for Media Advertisements.
Part 3. Municipal Campaign Reporting.
Article 24. The North Carolina Public Campaign Fund.
Article 25. The Voter-Owned Elections Act.
Article 26. Legal Expense Funds.
Article 27. Municipal Elections.
Part 1. Municipal Election Procedure.
Part 2. Conduct of Municipal Elections.
Article 28. Nomination and Election of Appellate, Superior, and District Court
Judges.
When recodifying, the Revisor is authorized to change all references to the State Ethics
Commission, to the State Board of Elections, or to the Secretary of State, to instead be
references to the Bipartisan State Board of Elections and Ethics Enforcement. The Revisor may
separate subsections of existing statutory sections into new sections and, when necessary to
organize relevant law into its proper place in the above structure, may rearrange sentences that
currently appear within subsections. The Revisor may modify statutory citations throughout the
General Statutes, as appropriate, and may modify any references to statutory divisions, such as
"Chapter," "Subchapter," "Article," "Part," "section," and "subsection," adjust the order of lists
of multiple statutes to maintain statutory order, correct terms and conform names and titles
changed by this act, eliminate duplicative references to the Bipartisan State Board of Elections
and Ethics Enforcement that result from the changes authorized by this section, and make
conforming changes to catch lines and references to catch lines. The Revisor may also adjust
subject and verb agreement and the placement of conjunctions. The Revisor shall consult with
the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new
Bipartisan State Board of Elections and Ethics Enforcement on this recodification.
SECTION 4.(a) The General Statutes are amended by adding a new Chapter to
read:
"Chapter 163A.
"Elections and Ethics Enforcement Act."
SECTION 4.(b) Chapter 163A of the General Statutes, as enacted by this act, is
amended by adding a new Subchapter to read:
"SUBCHAPTERI. GENERAL PROVISIONS."
SECTION 4.(c) Subchapter I of Chapter 163A of the General Statutes, as enacted
by this act, is amended by adding a new Article to read:
"Article 1.
"Bieartisan State Board of Elections and Ethics Enforcement.
"§ 163A-U?martisan State Board of Elections and Ethics Enforcement established.
There is established the Bipartisan State Board of Elections and Ethics Enforcement,
referred to as the State Board in this Chapter.
"S 163A-2. Membership.
{a} The State Board shall consist of eight individuals registered to vote in North
Carolina, appointecLby the Governor, four of whom shall be of the political party with the
highest number of registered affiliates and four of whom shall be of the political party with the
second highest number of registered affiliates, as reflected by the latest registration statistics
published by _the_State_Board. The Governor shall appoint four members each from a list of six
nominees submitted by the State party chairs of the two political parties with the highest
number of registered affiliates, as reflected by thejatest registration statistics published by the
State Board.
Senate Bill 68 Session Law 2017-6 Page 3

{b} Members shall serve for two-year terms, beginning May 1 of the odd-numbered
rear.
{c} Members shall be removed by the Governor from the State Board only for
misfeasance, malfeasance, or nonfeasance. Violation of G.S. 163A-3fd') shall be considered
nonfeasance,
(d) Any vacancy occurring on the State Board shall be filled by an individual affiliated
with the same political party of the vacating member. Any vacancy occurring in the State Board
shall be filled by the Governor, and theêrson so apnomted shall filL the unexpired term. The
Governor shall fill the vacancy from a list of two names submitted by the State party chair of
the political party with which the vacating member was affiliated if that list is submitted within
30 daYS_ofthe occurrence of the vacancy.
(e) At the first meeting held after new appointments are made, the members of the State
Board shall take the following oath:
"I,_ , do solemnly swear for affirm) that I will support the
Constitution of the United States; that I will be faithful and bear tme allegiance to
the State of North Carolma_and to the constitutional powers and authorities which
are or may be established for the eovemment thereof; that I will endeavor to
support, maintain, and defend the Constitution of said State; and that I will well and
truly executejhe dutieôfthe office of member of the Bipartisan State BoarcLof
Elections and Ethics Enforcement according to the best of my knowledge and
ability, according to law, so help me God,"
(f) At the first meeting in May, the State Board shall organize by electing one of its
members chair and one of its members vice-chair, each to serve a two-year term as such. In
2017 and every four yearsjhereafiter, the chair shall be a member of the political party with the
highest number of registered affiliates, as reflected by the latest registration statistics published
by the State Board, and the vice-chair a member of the political party with the second highest
number of registered affiliates. In 2019 and every four years thereafter, the chair shall bâ
member of the political party with the second highest number of registered affiliates, as
reflected by the latest registration statistics published by the State Board, and the vice-chair a
member ofjthe political party with the highest number of registered affiliates.
(g) At the first meeting held after new appointments are made after taking the oath. the
State Board shall elect one of its members secretary, to serve a two-year tenn as such.
(h) No person shall be eligible to serve as a member of the State Board who:
{1} Holds any elective or appointive office under the government of the United
States, the State of North Carolina, or any political subdivision thereof.
{2} Holds any office in a political party or organization.
{3} Is a candidate for nomination or election to any office.
(4) Is a campaign manager or treasurer of any candidate in a prunary or election.
{5} Has served two full consecutive terms.
{0 No person while serving on the State Board shall:
{1J Make a reportable contribution to a candidate for a public office over which
the_State Board would have jurisdiction or authority,
{2} Register as a lobbyist under Article 8 of this Chapter.
{3} Make written or oral statements intended for general distribution or
dissemination to the public at large suDporting or opnosme thejiomination
or election of one or more clearly identified candidates for public office.
{4} Make written or oral statements intended for general distribution or
dissemination to the public at large supporting or oDposing the passage of
one or more clearly identified referendum or ballot issue proposals.
{5} Solicit contributions for a candidate, political committee, or referendum
committee.

{]} Members of the State Board shall receive per diem, subsistence, and travel, as
provided in G.S. 138-5 and G.S. 138-6.
"§ 163A-3. Meetinss; quorum; majority.
{a} The State Board shall meet at least monthly and at other times as called by its chair
or^Lajnaiority of its members. In the case of a vacancy in the chair, meetings may be called
by the vice-chair.
J^b} A majority of the members constitutes a quorum for the transaction of business by
the State Board.
{c} Unless otherwise specified in this Chapter, an affirmative vote of at least five
members of the State Board shalTb^required for all actions by the State Board.
(d) If any member of the State Board fails to attend a meeting, and by reason thereof
there is no Quorum, the members present shall ad\oumfrom_da\ to day for not more than three
days. By the end of which time, if there is no quorum, the Governor may summarily remove
any member failing to attend and appoint a successor.
"§ 163A-4. Powers of the Stateôard in the execution of State Board duties.
{a} In the performance of the duties enumerated m Article 8 of Subchapter II of this
Chapter and Subchapter III of this Chapter, the StateJ3oard shall have power to issue
subpoenas, summon witoiessesândcompel the production of papers. books, records, and other
evidence. Such subpoenas for designated witnesses or identified papers, books, records, and
other evidence shall be signed and issued by the chair.
{b} In the absence of the chair or upon the chair's refusal to act. the vice-chair may sign
and issue subpoenas, summon witnesses. and compel the production of papers, books, records,
and other evidence approved in accordance with subsection (a} of this section.
{c} In the performance of the duties enumerated in this Chapter, the State Board, acting
through the chair, shall have the power to administer oaths. In the absence of the chair or upon
the chair's refusal to act, any membCTofthe State Board may administer oaths.
{d} Except as provided in subsection fa) of this section, the State Board, upon a vote of
five or more of its members, may petition the Superior Court of Wake County_for the approval
to issue subpoenas and subpoenas. _duces tecum as _necessary to conduct investigations of
violationsj3f the remainder this Chapter. The court shall authorize subpoenas under this
subsection when the court determines they are necessary for the enforcement of this Chapter.
Subpoenas issued under this subsection shall bênforceable by the court through contempt
powers. Venue shall be with the Superior Court of Wake County for any nonresident person, or
that person's agent, who makes a reportable expenditure under this Chapter, and personal
iurisdictionmaybe asserted under G.S. 1-75.4.
"§^163A-5._ Independent asency, staff, and offices.
{a} The State Board shall be and remain an independent regulatory and quasi-judicial
agency and shall not be placed within any principal administrative department. The State Board
shall exercise its statutory powers, duties, functions, and authority and shall have all powers
and duties conferred upon the heads of principal departmentsunder G.S. 143B-10.
(b) The State Board may employ professional and clerical staff, including an Executive
Director.
"§ 163A-6. Executive Director of the State Board.
(a) There is hereby created the position of Executive Director of the State Board, who
shalLBerform all duties imposed by statute and such duties as may be assigned by the State
Board.
{b) The State Board shall appoint an Executive Director for a term of two years with
compensation to be determined by the Office of State Human Resources. The Executive
Director shall serve beginning May 15 after the first meeting held after new appomtments to
the State Board are made, unless removed for cause, until a successor is appointed. In the event
ofa^vacancy, the yacancy shall be filled for the remainder of the term.

{c) The Executive Director shall be responsible for staffing, administration, and
execntion_ofthe State Board^decisipns and orders and shall perform such other responsibilities
as may be assigned by the State Board.
{d} The Executive Director shall be the chief State elections official."
SECTION 5.(a) G.S. 13 8A-6 is repealed.
SECTION 5.(b) G.S. 138A-7 is repealed.
SECTION 5.(c) G.S. 138A-8 is repealed.
SECTION 5.(d) G.S. 138A-9 is repealed.
SECTION 5.(e) G.S. 138A-12(r) is repealed.
SECTION 5.(f) G.S. 138A-13 reads as rewritten:
"§ 138A-13. Request for advice.
(a2) A request for a formal advisory opinion under subsection (a) of this section shall be
in writing, electronic or otherwise. The CommisGion State Board shall issue formal advisory
opinions having prospective application only. A public servant or legislative employee who
relies upon the advice provided to that public servant or legislative employee on a specific
matter addressed by the requested formal advisory opinion shall be immune from all of the
following:
(1) Investigation by the CommisQJon, State Board, except for an inquiry under
G.S. 138A-12(b)(3).
(2) Any adverse action by the employing entity.
(3-) Investigation by the Secretary of State.
(bl) A request by a legislator for a recommended formal advisory opinion shall be in

writing, electronic or otherwise. The Commission State Board shall issue recommended formal
advisory opinions having prospective application only. Until action is taken by the Committee
under G.S. 120-104, a legislator who relies upon the advice provided to that legislator on a
specific matter addressed by the requested recommended formal advisory opinion shall be
immune from all of the following:
(1) Investigation by the Committee or Commission, State Board, except for an
inquiry under G.S. 138A-12(b)(3).
(2) Any adverse action by the house of which the legislator is a member.
{3) Investigation by the Secretary of State.
Any recommended formal advisory opinion issued to a legislator under this subsection shall
immediately be delivered to the chairs of the Committee, together with a copy of the request.
Except for the Lieutenant Governor, the immunity granted under this subsection shall not apply
after the time the Committee modifies or overturns the advisory opinion of the Commission in
accordance with G.S. 120-104.
ft
SECTION 6. Chapter 120C of the General Statutes reads as rewritten:

"Chapter 120C.
"Lobbying.
"§ 120C-101. Rules and forms.

(a) The Commission State Board shall adopt any mles or definitions necessary to
interpret the provisions of this Chapter Article and adopt any rules necessary to administer the
provisions of this Chapter, except for Articles 2, 1 and 8 of this Chapter. The Secretary of State
shall adopt any rules, orders, and forms as are necessary to administer the provisions of Articles
2,1 and 8 of this Chapter. The Secretary of State may appoint a council to advise the Secretary
in adopting rules under this scction.Article.

(b) With respect to the fonns adopted under subsection (a) of this section, the Secretary
of State State Board shall adopt rules to protect from disclosure all confidential information
under Chapter 132 of the General Statutes related to economic development initiatives or to
industrial or business recruitment activities. The information shall remain confidential until the
State, a unit of local government, or the business has announced a commitment by the business
to expand or locate a specific project in this State or a final decision not to do so, and the
business has communicated that commitment or decision to the State or local government
agency involved with the project.
(c) In adopting rules under this Chapter, Article, the Commiosion State Board is exempt
from the requirements of Article 2A of Chapter 150B'ofthe General Statutes, except that the
CommisGion State Board shall comply with G.S. 150B-21.2(d). At least 30 business days prior
to adopting a mle, the Commisoion State Board shall:
(1) Publish the proposed rules in the North Carolina Register.
(2) Submit the mle and a notice of public hearing to the Codifier of Rules, and
the Codifier of Rules shall publish the proposed rule and the notice of public
hearing on the Internet to be posted within five business days.
(3) Notify those on the mailing list maintained in accordance with
G.S. 150B-21.2(d) and any other interested parties of its intent to adopt a
rule and of the public hearing.
(4) Accept written comments on the proposed rule for at least 15 business days
prior to adoption of the rule.
(5) Hold at least one public hearing on the proposed rule no less than five days
after the rule and notice have been published.
A rule adopted under this subsection becomes effective the first day of the month following the
month the final rule is submitted to the Codifier of Rules for entry into the North Carolina
Administrative Code, and applies prospectively. A rule adopted by the Commission that does
not comply with the procedural requirements of this subsection shall be null, void, and without
effect. For purposes of this subsection, a rule is any Commission State Board regulation,
standard, or statement of general applicability that interprets an enactment by the General
Assembly or Congress, or a regulation adopted by a federal agency, or that describes the
procedure or practice requirements of the CommisGion.State Board.
(d) For purposes of G.S. 150B 21.3(b2), a written objection filed by the CommisQion to
a rule adopted by the Secretary of State pursuant to this Chapter shall be deemed written
objections from 10 or more persons under that statute. Notwithotanding G.S. 150B 21.3(b2), a.
rule adopted by the Secretary of State pursuant to this Chapter objected to by the Commisoion
under this Qubsection shall not bccomo offcctivc until an act of the General Assembly
approving the rule has become law. If the General Assembly does not approve a rule under this
Gubsoction by the day of adjournment of the next regular session of the General Assembly that
begins at leaot 25 days after the date the Rules Review Commission approves the rule, the
permanent rule shall not become effective and any temporary rule associated with the
permanent rule expires. If the General Assembly fuilB to approve a rule by the day of
adjournment, the Secretary of State may initiate rulemaldng for a new permanent rule,
including by the adoption of a temporary rule.
"§ 120C-102. Request for advice.
(a) At the request of any person. State agency, or governmental unit affected by this
Chapter, Article, the CommJGsion State Board shall render advice on specific questions
involving the meaning and application of this Chapter Article and that person's. State agency's,
or any governmental unit's compliance therewith. Requests for advice and advice rendered in
response to those requests shall relate to real or reasonably anticipated fact settings or
circumstances.

(al) A request for a formal opinion under subsection (a) of this section shall be in
writing, electronic or otherwise. The Commission State Board shall issue formal advisory
opinions having prospective application only. An individual, State agency, or governmental
unit who relies upon the advice provided to that individual, State agency, or governmental unit
on a specific matter addressed by a requested formal advisory opinion shall be immune from all
of the following:
(1) Investigation by the CommiGsion. State Board.
(2) Any adverse action by the employing entity.
{3) Investigation by the Secretary of State.
(b) Staff to the Commission State Board may issue advice, but not formal advisory
opinions, under procedures adopted by the Commiooion. State Board.
(c) The Commission State Board shall publish its formal advisory opinions within 30
days of issuance, edited as necessary to protect the identities of the individuals requesting
opinions.
(d) Except as provided under subsections (c) and (dl) of this section, a request for
advice, any advice provided by Commission State Board staff, any formal advisory opinions,
any supporting documents submitted or caused to be submitted to the Commission State Board
or Commission State Board staff, and any documents prepared or collected by the Commission
StateJBârd_or the Commission State Board staff in connection with a request for advice are
confidential. The identity of the mdividual, State agency, or governmental unit making the
request for advice, the existence of the request, and any information related to the request may
not be revealed without the consent of the requester. An individual. State agency, or
governmental unit who requests advice or receives advice, including a formal advisory opinion,
may authorize the release to any other person, the State, or any governmental unit of the
request, the advice, or any supporting documents.
For purposes of this section, "document" is as defined in G.S. 120-129. Requests for advice,
any advice, and any documents related to requests for advice are not "public records" as
defined in G.S. 132-1.
{d-1-) Staff to the CommisGion may share all information and documents related to
requests under subQcction (a) and (al) of this section with staff of the Office of the Secretary of
State. The information and documcntQ in the possession of the staff of the Office of the
Secretary of State shall remain confidential and not public records. The Commission shall
forward an unedited copy of each formal advisory opinion under this section to the Secretary of
State at the time the formal advisory opinion is issued to the requestor, and the Secretary of
State shall treat that uncdited advisory opinion as confidential and not a public record.
(e) Requests for advisory opinions may be withdrawn by the requester at any time prior
to the issuance of a formal advisory opinion.
"§ 120C-601. Powers and duties of the Commission.State Board.

(a) The Commission State Board may investigate complaints of violations of this
Chapter and shall refer complaints related solely to Articles 2, 1, or 8 of this Chapter to the
Secretary of State.Article.
{b) The Commission may petition the Superior Court of Wake County for tho approval
to issue subpoenas and subpoenas duces tccum ao necessary to conduct investigations of
violations of this Chapter. The court shall authorize subpoenas under this subsoction when the
court determines they are necessary for the enforcement of this Chapter. Subpoenas issued
under this subsection shall bo cnforccablo by the court through contempt powers. Venue shall
be with the Superior Court of Wake County for any nonresident person, or that person's agent,
who makes a reportublc expenditure under this Chapter, and personal jurisdiction may be
assorted under G.S. 1 75.4.

(c) Complaints of violations of this Chapter Article and all other records accumulated in
conjunction with the investigation of these complaints shall be considered confidential records
and may be released only by order of a court of competent jurisdiction. Any information
obtained by the CommisGJon State Board from any law enforcement agency, administrative
agency, or regulatory organization on a confidential or otherwise restricted basis in the course
of an investigation shall be confidential and exempt from G.S. 132-6 to the same extent that it
is confidential in the possession of the providing agency or organization.
(d) The Commission State Board shall publish annual statistics on complaints,
including the number of complaints, the number of apparent violations of this Chapter Article
referred to a district attorney, the number of dismissals, and the number and age of complaints
pending.
"§ 120C-602. Punishment for violation.
(a) Whoever willfully violates any provision of Article 2 or Article 3 of this Chapter
Part 2 or Part 3 of this Article shall be guilty of a Class 1 misdemeanor, except as provided in
those Articles. In addition, no lobbyist who is convicted of a violation of the provisions of this
Chapter Article shall in any way act as a lobbyist for a period of two years from the date of
conviction.
(b) In addition to the criminal penalties set forth in this section, the Secretary of State
may levy civil fmeo for u violation of any provision of Articles 2, 1, or 8 of this Chapter up to
five thousand dollars ($5,000) per violation. In addition to the criminal penalties set forth in
this section, the Commission State Board may levy civil fines for a violation of any provision
of this Chapter except Article 2, 1, or 8 of this Chapter Article up to five thousand dollars
($5,000) per violation.
"§ 120C-603. Enforcement by district attorney and Attorney General.
(a) The Commission or the Secretary of State, as appropriate, State Board may
investigate complaints of violations of this Chapter Article and shall report apparent violations
of this Chapter Article to the district attorney of the prosecutorial district as defined in
G.S. 7A-60 of which Wake County is a part, who shall prosecute any person or governmental
unit who violates any provisions of this Chapter .Article.
(b) Complamts of violations of this Chapter Article involving the Commission State
Board_or any member employee of the CommioQJon State Board shall be referred to the
Attorney General for investigation. The Attorney General shall, upon receipt of a complaint,
make an appropriate investigation thereof, and the Attorney General shall forward a copy of the
investigation to the district attorney of the prosecutorial district as defined in G.S. 7A-60 of
which Wake County is a part, who shall prosecute any person or governmental unit who
violates any provisions of this Chapter.Article.
II
SECTION 7.(a) G.S. 163-19 is repealed.

SECTION 7.(b) G.S. 163-20 reads as rewritten:
"§ 163-20. Meetings of Board; quorum; minutes.
(a) Call of Meeting. —The State Board of Elections shall meet at the call of the
chairman whenever necessary to discharge the duties and functions imposed upon it by this
Chapter. The chairmun shall call a mooting of the Board upon the written application or
applications of any two members thereof. If there is no chairman, or if the chairman does not
call a meeting within three days after receiving u written request or roquostQ from two
members, any throe members of the Board shall have power to call a meeting of the Board, and
any duties imposed or powers conferred on the Board by this Chapter may be performed or
exercised at that meeting, although the time for performing or exercising the same prescribed
by this Chapter may have expired.
(b) Place of Meeting. - Except as provided in subsection (c), below, the State Board ef
Elections shall meet in its offices in the City of Raleigh, or at another place in Raleigh to be

designated by the chairman. However, subject to the limitation imposed by subsection (c),
below, upon the prior written request of any four a majority of its members, the State Board ef
Eleetieas-shall meet at any other place in the State designated by the four a majority of its
members.
(c) Meetings to Investigate Alleged Violations of This Chapter. - When called upon to
investigate or hear sworn alleged violations of this Chapter, the State Board ofEloctiono shall
meet and hear the matter in the county in which the violations are alleged to have occurred.
(d) Quomm. —A majority of the members constitutoQ a quomm for the ta-unsaction of
business by the State Board of Elections. If any member of the Board fails to attend u meeting,
and by reason thereof there is no quorum, the members present shall adjourn from day to day
for not more than three days, by the end of which time, if there is no quorum, the Governor
may summarily remove any member failing to attend and appoint his succossor.
(e) Minutes. - The State Board of Elections shall keep minutes recording all
proceedings and fmdings at each of its meetings. The minutes shall be recorded in a book
which shall be kept in the office of the Board in Raleigh."
SECTION 7.(c) G.S. 163-21 is repealed.
SECTION 7.(d) G.S. 163-23 is repealed.
SECTION 7.(e) G.S. 163-26 is repealed.
SECTION 7.(f) G.S. 163-27 is repealed.
SECTION 7.(g) G.S. 163-28 is repealed.
SECTION 7.(h) G.S. 163-30 reads as rewritten:
"§ 163-30. County boards of elections; appointments; terms of office; qualifications;
vacancies; oath of office; instructional meetings.
In every county of the State there shall be a county board of elections, to consist of three
four persons of good moral character who are registered voters in the county in which they are
to act. Members Two of the members of the county board of elections shall be of the political
party with the highesUmmber of registeredaffiliates, and_two_shall be of the political party
with_the second highest number of registered affiliates, as reflected by the latest registration
statistics published by the State Board. In 2017. members of county boards of elections shall be
appointed by the State Board on the second Tuesday in July. In 2019, members of county
boards of elections shall be appointed by the State Board of Elections on the last Tuesday in
June 1985, and every two years thereafter, and their terms of office shall continue for two years
from the specified date of appointment and until their successors are appointed and qualified.
Not more than two members of the county board of elections shall belong to the same political
party.
No person shall be eligible to serve as a member of a county board of elections who holds
any elective office under the government of the United States, or of the State of North Carolina
or any political subdivision thereof.
No person who holds any office in a state, congressional district, county or precinct
political party or organization, or who is a campaign manager or treasurer of any candidate or
political party in a primary or election, shall be eligible to serve as a member of a county board
of elections, provided however that the position of delegate to a political party convention shall
not be considered an office for the purpose of this section.
No person shall be eligible to serve as a member of a county board of elections who is a
candidate for nomination or election.
No person shall be eligible to serve as a member of a county board of elections who is the
wife, husband, son, son-in-law, daughter, daughter-in-law, mother, mother-in-law, father,
father-in-law, sister, sister-in-law, brother, brother-in-law, aunt, uncle, niece, or nephew of any
candidate for nomination or election. Upon any member of the board of elections becoming
ineligible, that member's seat shall be declared vacant. This paragraph only applies if the
county board of elections is conducting the election for which the relative is a candidate.

The State chairman chair of each political party shall have the right to recommend to the
State Board of Elections three registered voters in each county for appointment to the board of
elections for that county. If such recommendations are received by the Board 15 or more days
before the last Tuesday in June 1985,2017, and each two years thereafter, it shall be the duty of
the State Board of Elections to appoint the county boards from the names thus recommended.
Whenever a vacancy occurs in the membership of a county board of elections for any cause
the State chairman chair of the political party of the vacating member shall have the right to
recommend two registered voters of the affected county for such office, and it shall be the duty
of the State Board ofEloctionQto fill the vacancy from the names thus recommended.
At the meeting of the county board of elections required by G.S. 163-31 to be held on
Tuesday following the third Monday in July in the year of their appointment the members shall
take the followmg oath of office:
"I, _, do solemnly swear (or affirm) that I will support the
Constitution of the United States; that I will be faithful and bear true allegiance
to the State of North Carolina and to the constitutional powers and authorities
which are or may be established for the government thereof; that I will endeavor
to support, maintain and defend the Constitution of said State, not inconsistent
with the Constihition of the United States; and that I will well and truly execute
the duties of the office of member of the _ County Board of Elections
to the best of my knowledge and ability, according to law; so help me God."
At the first meeting in July annually, the county boards shall organize by electing one of its
members chair and one of its members vice-chair, each_to serve a one-year term as such. In the
odd-numberecLêar^the chair shall be a member of the political party with the highest number
of_registered affiliates, as reflected by the latest registration statistics published by the State
Board, and the vice-chair a member of the_ EoUtical_Barty with the second highest number of
registered affiliatesJLn the even-numbered year, the chair shall be a member of the political
party with the second highest number of registered affiliates, as reHected by the latest
registration statistics published by the State BoarcLandthe vice-chair a member of the political
party with the highest number of registered affiliates.
Each member of the county board of elections shall attend each instructional meeting held
pursuant to G.S. 163-46, unless excused for good cause by the chairman chair of the board, and
shall be paid the sum of twenty-five dollars ($25.00) per day for attending each of those
meetings."
SECTION 7.(i) G.S. 163-31 reads as rewritten:
"§ 163-31. IVEeetings of county boards of elections; quorum; majority; minutes.
In each county of the State the members of the county board of elections shall meet at the
courthouse or board office at noon on the Tuesday following the third Monday in July in the
year of their appointment by the State Board of Elections and, after taking the oath of office
provided in.G.S. 163-30, they shall organize by electing one member chairman chair and
another member secretary of the county board of elections. On the Tuesday following the third
Monday in August of the year in which they are appointed the county board of elections shall
meet and appoint precinct chief judges and judges of elections. The board may hold other
meetings at such times as the chairman chair of the board, or any •twe-three_members thereof,
may direct, for the performance of duties prescribed by law. A majority of the Three members
shall constitute a quomm for the transaction of board business. Except where required by law to
act unanimously, a maiority vote for action of the board shall require three of the four
members_The chuirman chair shall notify, or cause to be notified, all members regarding every
meeting to be held by the board.
The county board of elections shall keep minutes recording all proceedings and findings at
each of its meetings. The minutes shall be recorded in a book which shall be kept in the board
office and it shall be the responsibility of the secretary, elected by the board, to keep the

required minute book current and accurate. The secretary of the board may designate the
director of elections to record and maintain the minutes under his or her supervision."
SECTION 7.(j) G.S. 163-182.13 reads as rewritten:
"§ 163-182.13. New elections.
(a) When State Board May Order New Election. - The. State Board of Elections may
order a new election, upon agreement of at least four five of its members, in the case of any one
or more of the following:
(1) Ineligible voters sufficient in number to change the outcome of the election
were allowed to vote in the election, and it is not possible from examination
of the official ballots to determine how those ineligible voters voted and to
correct the totals.
(2) Eligible voters sufficient in number to change the outcome of the election
were improperly prevented from voting.
(3) Other irregularities affected a sufficient number of votes to change the
outcome of the election.
(4) Irregularities or improprieties occurred to such an extent that they taint the
results of the entire election and cast doubt on its fairness.
(b) State Board to Set Procedures. - The State Board of Elections shall determine when
a new election shall be held and shall set the schedule for publication of the notice, preparation
of absentee official ballots, and the other actions necessary to conduct the election.
(c) Eligibility to Vote in New Election. - Eligibility to vote in the new election shall be
determined by the voter's eligibility at the time of the new election, except that in a prmiary, no
person who voted in the initial primary of one party shall vote in the new election in the
primary of another party. The State Board el-Bleefctees-shall promulgate adopt rules to effect
the provisions of this subsection.
(d) Jurisdiction in Which New Election Held. - The new election shall be held in the
entire jurisdiction in which the original election was held.
(e) Which Candidates to Be on Official Ballot. - All the candidates who were listed on
the official ballot in the original election shall be listed in the same order on the official ballot
for the new election, except in either of the following:
(1) If a candidate dies or otherwise becomes ineligible between the time of the
original election and the new election, that candidate may be replaced in the
same manner as if the vacancy occurred before the original election.
(2) If the election is for a multiseat office, and the irregularities could not have
affected the election of one or more of the candidates, the new election, upon
agreement of at least few-five members of the State Board, may be held
among only those candidates whose election could have been affected by the
irregularities.
(f) Tie Votes. - If ineligible voters voted in an election and it is possible to determine
from the official ballots the way in which those votes were cast and to correct the results, and
consequently the election ends in a tie, the provisions ofG.S. 163-182.8 concerning tie votes
shall apply."
SECTION 7.(k) G.S. 163-278.22(7) reads as rewritten:
"(7) To make investigations to the extent the State Board deems necessary with
respect to statements filed under the provisions of this Article and with
respect to alleged failures to file any statement required under the provisions
of this Article or Article 22M of the General Statutes and, upon complaint
under oath by any registered voter, with respect to alleged violations of any
part of this Article or Article 22M of the General Statutes. The State Board
shall conclude all myestigatiQns nojater than one year from the date of the
start of the investiRation, unless the State Board has reported an apparent

violation to the eroper district attomeând additional investigation of the
apparcntviolationjs deemed_necessary by the State Board."
SECTION 8. G.S. 120-70.141 reads as rewritten:
"§ 120-70.141. Purpose and powers of Committee.
(a) The Joint Legislative Elections Oversight Committee shall examine, on a continuing
basis, election administration and campaign finance regulation in North Carolina, in order to
make ongoing recommendations to the General Assembly on ways to improve elections
administration and campaign finance regulation. In this examination, the Committee shall do
the following:
(1) Study the budgets, programs, and policies of the Bipartisan State Board of
Elections and Ethics Enforcement and the county boards of elections to
determine ways in which the General Assembly may improve election
administration and oampaign finance regulation.administration.
fla) Study the budgets, programs. and policies of the Bipartisan State Board of
ElectionsL^nd_Ethics EnforcemenLandthe counfry boards of elections to
determine ways in which the General Assembly may improve campaign
finance regulation.
(2) Examine election statutes and court decisions to determine any legislative
changes that are needed to improve election administration and campaign
finance regulation.
(3) Study other states' initiatives in election administration and campaign
finance regulation to provide an ongoing commentary to the General
Assembly on these initiatives and to make recommendations for
implementing similar initiatives in North Carolina; and
(4) Study any other election matters that the Committee considers necessary to
fulfill its mandate.
(b) The Committee may make interim reports to the General Assembly on matters for
which it may report to a regular session of the General Assembly. A report to the General
Assembly may contain any legislation needed to implement a recommendation of the
Committee."
SECTION 9. Notwithstanding G.S. 163A-2, as enacted by Section 4 of this act, the
chairs of the two political parties shall submit a list of names to the Governor on or before April
20, 2017, and the Governor shall make appointments from those lists no later than May 1,
2017. The State chairs of the two political parties shall not nominate, and the Governor shall
not appoint, any individual who has served two or more full consecutive ten-ns on the State
Board of Elections or State Ethics Commission, as of April 30, 2017.
SECTION 10. Notwithstanding G.S. 163A-2(f) and (g), as enacted by Section 4 of
this act, the Governor shall appoint a member of the State Board to serve as chair, a member to
serve as vice-chair, and a member to serve as secretary of the State Board until its first meeting
in May 2019, at which time the State Board shall select it a chair and vice-chair in accordance
with G.S. 163A-2(f) and select a secretary in accordance with G.S. 163A-2(g).
SECTION 11. Any previous assignment of duties of a quasi-legislative or
quasi-judicial nature by the Governor or General Assembly to the agencies or functions
transferred by this act shall have continued validity with the transfer under this act. Except as
otherwise specifically provided in this act, each enumerated commission, board, or other
function of State government transferred to the Bipartisan State Board of Elections and Ethics
Enforcement, as created in this act, is a continuation of the former entity for purposes of
succession to all the rights, powers, duties, and obligations of the former. Where the former
entities are referred to by law, contract, or other document in their former name, the Bipartisan
State Board of Elections and Ethics Enforcement, as created in this act, is charged with
exercising the functions of the former named entity.

SECTION 12. No action or proceeding pending on May 1, 2017, brought by or
against the State Board of Elections, the State Ethics Commission, or the Secretary of State
regarding the lobbyist registration and lobbying enforcement of the Secretary of State shall be
affected by any provision of this act, but the same may be prosecuted or defended in the name
of the Bipartisan State Board of Elections and Ethics Enforcement, as created in this act. In
these actions and proceedings, the Bipartisan State Board of Elections and Ethics Enforcement
or its Executive Director, as appropriate, shall be substituted as a party upon proper application
to the courts or other administrative or quasi-judicial bodies.
Any business or other matter undertaken or commanded by any State program or
office or contract transferred by this act to the Bipartisan State Board of Elections and Ethics
Enforcement pertaining to or connected with the functions, powers, obligations, and duties set
forth herein, which is pending on May 1, 2017, may be conducted and completed by the
Bipartisan State Board of Elections and Ethics Enforcement in the same manner and under the
same temis and conditions and with the same effect as if conducted and completed by the
original program, office, or commissioners or directors thereof.
SECTION 13. The consolidation provided for under this act shall not affect any
ongoing investigation or audit. Any ongoing hearing or other proceeding before the State Ethics
Commission or State Board of Elections on May 1, 2017, shall be transferred to the Bipartisan
State Board of Elections and Ethics Enforcement, as created by this act, on May 1, 2017.
Prosecutions for offenses or violations committed before May 1, 2017, are not abated or
affected by this act, and the statutes that would be applicable but for this act remain applicable
to those prosecutions.
SECTION 14. Rules and forms adopted by the State Ethics Commission, Secretary
of State related to lobbying, and the State Board of Elections shall remain in effect as provided
in G.S. 150B-21.7. Policies, procedures, and guidance shall remain in effect until amended or
repealed by the Bipartisan State Board of Elections and Ethics Enforcement. The list of covered
boards adopted by the State Ethics Commission under G.S. 13 8A-11 as of April 30, 2017, shall
continue in effect until amended or repealed by the Bipartisan State Board of Elections and
Ethics Enforcement.
SECTION 15. Any evaluation of a statement of economic interest issued by the
State Ethics Commission pursuant to Article 3 of Chapter 138A of the General Statutes in 2016
shall remain in effect until amended or repealed by the Bipartisan State Board of Elections and
Ethics Enforcement.
SECTION 16. The authority, powers, duties and functions, records, personnel,
property, and unexpended balances of appropriations, allocations, or other funds, including the
functions of budgeting and purchasing, of the State Ethics Commission are transferred to the
Bipartisan State Board of Elections and Ethics Enforcement, as created in this act. The
authority, powers, duties and functions, records, personnel, property, and unexpended balances
of appropriations, allocations, or other funds, including the functions of budgeting and
purchasing, of the State Board of Elections are transferred to the Bipartisan State Board of
Elections and Ethics Enforcement, as created in this act. The authority, powers, duties and
functions, records, personnel, property, and unexpended balances of appropriations, allocations,
or other funds, including the functions of budgeting and purchasing, of the lobbying
registration and lobbying enforcement functions of the Secretary of State are transferred to the
Bipartisan State Board of Elections and Ethics Enforcement, as created in this act. The Director
of the Budget shall resolve any disputes arising out of this transfer.
SECTION 17. Notwithstanding G.S. 163A-6, the Bipartisan State Board of
Elections and Ethics Enforcement shall not appoint an Executive Director until May 2019.
Until such time as the Bipartisan State Board of Elections and Ethics Enforcement appoints an
Executive Director in accordance with G.S. 163A-6, as enacted by this act, the Executive

Director of the State Board of Elections under G.S. 163-26, as of December 31, 2016, shall be
the Executive Director.
SECTION 18. The appropriations and resources of the State Ethics Commission is
transferred to the Bipartisan State Board of Elections and Ethics Enforcement, and the transfer
shall have all the elements of a Type I transfer under G.S. 143A-6.
SECTION 19. The appropriations and resources of the State Board of Elections,
including any office space of the State Board of Elections, is transferred to the Bipartisan State
Board of Elections and Ethics Enforcement, and the transfer shall have all the elements of a
Type I transfer under G.S. 143A-6, with the Budget Code for the newly established State Board
being the previous State Board of Elections Budget Code of 18025.
SECTION 20. The appropriations and resources of the lobbying registration and
lobbying enforcement functions of the Secretary of State are transferred to the Bipartisan State
Board of Elections and Ethics Enforcement, and the transfers shall have all the elements of a
Type I transfer under G.S. 143A-6. Specifically, the following positions shall be transferred:
Lobbying Compliance Director (Position 60008800), Law Enforcement Agent (Position
60008806), Administrative Assistant II (Position 60008801), Administrative Assistant II
(Position 60008802), and Administrative Assistant II (Position 60008803).
SECTION 21. The Bipartisan State Board of Elections and Ethics Enforcement
shall report to the Joint Legislative Commission on Governmental Operations, Joint Legislative
Elections Oversight Committee, and the Legislative Ethics Committee on or before April 1,
2018, and again on or before March 1, 2019, as to recommendations for statutory changes
necessary to further implement this consolidation.

SECTION 22. Notwithstanding the recodification in Section 3 of this act, the Bipartisan State
Board of Elections and Ethics Enforcement shall not administer or enforce Part 1, Part 3, or
Part 6 of Article 8 of Chapter 163A of the General Statutes, and the Secretary of State shall
maintain the authority to administer and enforce Articles 2, 4, and 8 of Chapter 120C of the
General Statutes, as those Articles existed on May 1, 2017, until October 1, 2017. Section 20 of
this act becomes effective October 1, 2017. Sections 9 and 10 of this act become effective when
it becomes law. G.S. 163-30, as amended by Section 7(h) of this act, and G.S. 163-31, as
amended by Section 7(i) of this act, become effective July 1, 2017. G.S. 163-278.22(7), as
amended by Section 7(k) of this act, becomes effective May 1, 2017, and applies to
investigations initiated on or after that date. Except as otherwise provided, this act becomes
effective May 1,2017.
In the General Assembly read three times and ratified this the 11th day of April,
2017.
s/ Philip E. Berger
President Pro Tempore of the Senate
s/ Tim Moore
Speaker of the House of Representatives
.VETO Roy Cooper

Governor
Became law notwithstanding the objections of the Governor at 10:06 a.m. this 25
day of April, 2017.
s/ James White
House Principal Clerk

2018 Cooper v. Berger

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2018 Cooper v. Berger

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8CVU0331a8

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

ROY A. COOPER, III, in his official

PHILIP E. BERGER, in his official capacity VERIFIED COMPiAIP<Ft, MOTION

responsible for administrating our State's election laws.

statewide election years.

operates to be unconstitutional as a violation of separation of powers. See Cooper v. Berger and

-N.C. —, — S.E. 2d— Slip Op. at 33 (Jan. 26,2018)("Cooper IF).

in its McCrory v. Berger and Cooper II decisions.

generated by the opposing political party).

Supreme Court's constitutional rulings in Cooper II.

Governor's views and priorities.

Cooper II. Accordingly, it is likewise unconstitutional.

would be an amendment to a law that has been enjoined and invalidated.

18. This General Assembly's continued, direct attacks on executive authority

unconstitutionally infringe on the Governor's executive powers in violation of separation of

selecting him as North Carolina's chief executive.

powers allocated to the Executive Branch of State Government by the people.

PARTIES AND JURISDICTION

challenged as unconstitutional in this action.

of the State of North Carolina by the North Carolina Constitution.

referred to herein as House Bill 90 or Part VIII of House Bill 90.

as to the constitutionality of House Bill 90.

of Justice pursuant to N.C. Gen. Stat. §§ 1-253, et seq., and 7A-245(a).

32. As the Supreme Court of North Carolina reaffirmed in 2016:

Our founders believed that separating the legislative, executive, and

CONST. art. I, § 6).

33. "There should be no doubt that the principle of separation of powers is a

bnpeachtnents and in a General Court of Justice.").

to sustain the Governor's challenge to Session Law 2017-6 in Cooper II:

As we have already noted, the North Carolina Constitution, unlike

Cooper II, Slip. Op. at 29-30 (citations omitted).

failing of Session Law 2017-6, holding as follows:

Although we did not explicitly define "control" for separation-of-

As was the case in M^cCrory, in which we determined that the

The General Assembly cannot, however, consistent with the textual

Cooper II, Slip Op. at 31, 33-34, 36 (emphasis added).

failure of Session 2017-6 to do so was its principal constitutional failing.

which political party holds the executive office.

CHALLENGES TO PART VIII OF HOUSE BILL 90

Governor will be reflected in at least three of its five members.

a. Under a portion of Session Law 2017-6 invalidated in Cooper II, a new

e. The General Assembly has appointed Kim Strach as Executive Director of

Governor's discretion." House Bill 90, § 8(b) (amending § 163A-2(c)).

uaamended provisions of Session Law 2017-6 it is premised upon.

agency chargedwith executing the State's election laws.

Gen. Stat. § 163-33. These include the duties to:

b. "[EJstablish, define, provide, rearrange, discontinue, and combine election

d. Select and purchase voting equipment. Id. § 163-33(7).

e. Propose and approve one-stop early voting plan. Id. § 163-227.2.

f. Appoint precmct officials (Chief Judge and Judges), precinct assistants,

Chapter 163 of the General Statutes.

performs primarily executive, rather than legislative or judicial, functions.").

2017-6, is constitutionally infirm in a number of respects.

ways that conflict directly with our state Constitution.

boards of election faithfully execute the election laws.

execution of the State's election and ethics laws.

by the other eight appointees.

66. This unconstitutional structural constraint imposed on the Governor's authority by

than four-year, term. See id. § 4(c) (enacting § 163A-6); § 17.

be an exempt policymaking employee subject to removal at the Governor's sole discretion.

diminution of and encroachment on the authority of the Governor.

executive branch from faithfully executing the State's elections laws.

violation." Cooper II, Slip Op. at 41.