AN ACT TO CONSOLIDATE THE FUNCTIONS OF ELECTIONS, CAMPAIGN FINANCE, LOBBYING, AND ETHICS UNDER ONE STATE AGENCY BY CREATING THE NORTH CAROLINA BIPARTISAN STATE BOARD OF ELECTIONS AND ETHICS ENFORCEMENT; TO CLARIFY THE GENERAL ASSEMBLY'S AUTHORITY TO CORRECT DEFECTS IDENTIFIED BY A COURT IN APPORTIONMENT OR DISTRICTING PLANS; TO RESTORE PARTISAN ELECTIONS FOR THE NORTH CAROLINA SUPREME COURT AND COURT OF APPEALS; TO MODIFY APPELLATE REVIEW OF CERTAIN CASES; AND TO MODIFY THE TERM FOR INDUSTRIAL COMMISSIONERS.
Part I creates a new Bipartisan State Board of Elections and Ethics Enforcement. Section 1 directs the Revisor of Statutes to recodify existing GS Chapters 138A (the State Government Ethics Act), 120C (Lobbying), and 163 (Elections and Election Laws) into a new Chapter 138B. The new chapter is titled the “Elections and Ethics Enforcement Act.” The Revisor is authorized to make necessary technical and conforming changes both within the new chapter and elsewhere in the General Statutes, including changing all references to the State Ethics Commission, the State Board of Elections, and Secretary of State (where appropriate) to the Bipartisan State Board of Elections and Ethics Enforcement. The Revisor must 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 the recodification.
The organization of the new Chapter 138B is as follows:
Subchapter II incorporates the provisions of Chapter 138A (ethics) and Chapter 120C (lobbying), some of which are amended elsewhere in the act.
Subchapter III incorporates the provisions of Chapter 163 (elections and elections laws), some of which are amended elsewhere in the act.
Section 2 amends the General Statutes by creating a new Subchapter I, Article 1, of the new Chapter 138B establishing the Bipartisan State Board of Elections and Ethics Enforcement (the Board) and providing for the Board’s membership, powers, administration, and staff as follows:
New GS 138B-1 formally establishes the board.
New GS 138B-2(a) sets out the membership of the Board as follows:
Four members appointed by the Governor, two of whom shall be of the political party with the highest number of registered voters and two of whom shall be of the political party with the second highest number of registered voters. The Governor’s appointees shall be selected from a list of three nominees submitted by the two political parties with the highest number of registered voters.
Two members appointed by the General Assembly upon recommendation of the Speaker, with one being of the political party with the highest number of registered voters and the other being of the political party with the second highest number of registered voters. The House’s appointees shall be selected from a list of three nominees submitted by the two political parties with the highest number of registered voters, one submitted by the majority leader and the other submitted by the minority leader.
Two members appointed by the General Assembly upon recommendation of the President Pro Tempore of the Senate, with one being of the political party with the highest number of registered voters and the other being of the political party with the second highest number of registered voters. The Senate’s appointees shall be selected from a list of three nominees submitted by the two political parties with the highest number of registered voters, one submitted by the majority leader and the other submitted by the minority leader.
Subsections (b) and (c) provide that members of the Board serve four-year terms commencing on May 1st immediately following the gubernatorial election and may be removed only for misfeasance, malfeasance, or nonfeasance. Under subsection (d), vacancies on the board shall be filled in the same manner as initial appointment. The oath of office of the Board members is prescribed in subsection (e) of the new statute. Subsections (f) and (g) provide for election of the Board chair, vice-chair, and secretary. Under subsection (h), membership on the board is prohibited if the individual holds a federal, state, or local elective or appointive office, a political party office, or is a candidate for elective office, campaign manager, or campaign treasurer. In addition, Board members are prohibited from making campaign contributions to a candidate for office over which the Board has jurisdiction; registering as lobbyists; making public statements for or against identified candidates for office or referendum or ballot issue proposals; and soliciting contributions for candidates, PACs, and referendum committees.
New GS 138B-3 requires the Board to meet at least monthly and provides that six members both constitutes a quorum and is required for a majority vote.
New GS 138B-4 sets out the powers of the Board in executing its duties, including the power to administer oaths, issue subpoenas, summon witnesses, compel the production of evidence, and petition the Superior Court of Wake County for approval to issue a subpoena when necessary to conduct investigations of violations of the Chapter.
New GS 138B-5 provides that the Board is an independent regulatory and quasi-judicial agency that may not be placed within a principal administrative department of state government, and authorizes the Board to employ staff.
New GS 138B-6 creates the position of Executive Director of the Board, who shall be appointed by the Board for a term of four years and is authorized to hire staff. The Executive Director also serves as the chief State elections official.
Section 3 repeals four sections of Chapter 138A (GS 138A-6, establishing the State Ethics Commission; GS 138A-7, setting out the Commission’s membership; GS 138A-8, providing for meetings and quorum of the Commission; and GS 138A-9, authorizing staff and administrative functions of the Commission) and makes technical conforming changes to GS 138A-13 consistent with the establishment of the new Board.
Section 4 makes technical and conforming changes to various sections of Chapter 120C consistent with the establishment of the new Board.
Sections 5(a) through (g) make changes to various sections of Chapter 163 (elections laws) as follows:
Repeals GS 163-19 (which establishes the State Board of Elections)
Makes technical and conforming changes to GS 163-20 consistent with the establishment of the new Board
Repeals five sections of Chapter 163 (GS 163-21, providing for compensation of the State Board of Elections; GS 163-23, granting powers to the State Board of Elections chair; GS 163-26 and -27, creating the position of Executive Director of the State Board of Elections and setting compensation; and GS 163-28, establishing the State Board of Elections as an independent state agency)
Section 5(h) amends GS 163-30 to increase the membership of county boards of elections from three members to four and to require that two members be from the political party with the highest number of registered voters and the other two members be from the political party with the second highest number of registered voters. The chairs and vice-chairs of the county boards serve for one-year terms and must be of different political parties; the political party affiliation of the chairs and vice-chairs must rotate on an annual basis.
Section 5(i) amends GS 163-31 to make technical and conforming changes and to provide that a majority vote requires three of the four members of the board.
Section 5(j) amends GS 163-183.13 to require at least six members of the Board (was four members) must agree to order a new election.
Section 5(k) amends GS 163-278.22(7) to require the Board to conclude all investigations of allegations of violations of campaign contributions and expenditures laws within one year from the start of the investigation unless the Board has reported the violation to the district attorney and deems additional investigation necessary.
Section 6 amends GS 120-70.141 to expand the powers of the Joint Legislative Elections Oversight Committee to include studying the Board’s budgets, programs, and policies as well as county boards of elections.
Section 7 preserves the legal validity of quasi-legislative or quasi-judicial duties of the commissions being eliminated by the act that are transferred to the Board.
Section 8 preserves the validity of legal actions and proceedings brought by or against the commissions being eliminated by the act and authorizes the Board to continue prosecution and defense of such proceedings.
Section 9 preserves the validity of any ongoing investigations or audits, and transfers to the Board any ongoing hearings or proceedings before the commissions being eliminated by the act; also preserves the legal validity of any prosecutions for offenses or violations.
Section 10 preserves the validity of any rules, policies, and procedures adopted by the commissions being eliminated by the act.
Section 11 preserves the validity of statement of economic interest evaluations conducted by the State Ethics Commission (which is eliminated by the act).
Section 12 transfers all authority, powers, duties, functions, records, personnel, property, unexpended funds, budgeting and purchasing functions, and other administrative authorities of the commissions being eliminated by the act to the Board.
Section 13 carries over the current membership of the State Ethics Commission to the Board and names the current chair and vice-chair of the State Ethics Commission as the chair and vice-chair of the Board until June 30, 2017.
Section 14 names the current Executive Director of the State Board of Elections as the Executive Director of the Board until the Board appoints a new Executive Director.
Sections 15, 16, and 17 transfer the appropriations and resources of the commissions being eliminated by the act to the Board, and transfers the appropriations, resources, and personnel of the lobbying registration and enforcement functions of the Secretary of State to the Board.
Section 18 requires the Board to report to the Joint Legislative Commission on Governmental Operations, Elections Oversight Committee, and Legislative Ethics Committee by April 1, 2018, and again by March 1, 2019, on statutory changes necessary to further implement the act.
Section 19 makes the changes in Part I of the act effective January 1, 2017.
Part II amends GS 120-2.4, 163-22, 163-33, and 163-27.1 to prohibit the State Board of Elections or any county board of elections to alter, amend, correct, impose, or substitute any redistricting plan for congressional districts, legislative districts, or districts for a unit of local government other than a plan enacted by the General Assembly or imposed by court order.
Part III amends GS 163-106 to provide thatj ustices of the North Carolina Supreme Court and judges of the North Carolina Court of Appeals shall be elected on a partisan basis (these elections are currently held on a nonpartisan basis). Also makes technical and conforming changes to GS 163-107, GS 163-107.1, GS 163-111, GS 163-321, GS 163-323, GS 163-325, GS 163-329, GS 163-332, GS 163-165.5, and repeals GS 163-323(h). Effective January 1, 2018.
Part IV modifies appellate review of certain legal cases. Section 22.(a) amends GS 7A-16 to authorize the North Carolina Court of Appeals to sit en banc to hear or rehear a case upon a majority vote of the court and to provide that, when the court is sitting en banc, a majority of the then sitting judges constitutes a quorum.
Section 22.(b) amends GS 7A-27 eliminating the right of appeal directly to the North Carolina Supreme Court from a lower court judgment holding an act of the General Assembly unconstitutional.
Section 22.(c) amends GS 7A-30 to limit an appeal of right to the North Carolina Supreme Court from a ruling of the Court of Appeals in which there is a dissent among a three-judge panel until the Court hears the case en banc and renders a decision, the Court denies a motion for rehearing en banc, or the time for filing a motion for rehearing en banc has expired.
Section 22.(d) amends GS 7A-31(a) to include reference to a cause heard by the Court of Appeals en banc.
Section 22.(e) amends GS 58-65-131(c) to eliminate the right of parties to petition the Supreme Court to certify the case for discretionary review prior to determination by the Court of Appeals.
Section 22.(f) repeals GS 120-2.5 to eliminate a right of appeal directly to the North Carolina Supreme Court from a lower court judgment declaring invalid an act of the General Assembly redistricting congressional or legislative districts.
Section 23 amends GS 1A-1, Rule 42(b)(4), of the Rules of Civil Procedure to provide that, when a challenge to the validity of an act of the General Assembly is brought in any court, when the case is transferred to a three-judge panel in Wake County Superior Court, the court of origin retains jurisdiction over motions filed pursuant to Rule 11 or Rule 12(b)(1) through (7) and shall rule on such motions. If the court of origin declines to rule on a motion brought under Rule 12(b)(6), that motion is transferred to the three-judge panel in Wake County Superior Court for disposition. This section of the act is effective February 1, 2017, and applies to motions filed on or after that date.
Part V modifies terms of office for members of the Industrial Commission by amending GS 97-77(a1) to provide that appointments to fill a vacancy shall have a term of six years plus the remainder to the unexpired term to which the individual is appointed (under current law the individual appointed to fill an unexpired term serves only for the duration of the unexpired term). This change is effective when it becomes law and applies to appointments made on or after that date. On December 31, 2016, the provision reverts to current law under which appointments to fill unexpired terms made after December 31, 2016, will serve only for the remainder of the unexpired term.
© 2022 School of Government The University of North Carolina at Chapel Hill
This work is copyrighted and subject to "fair use" as permitted by federal copyright law. No portion of this publication may be reproduced or transmitted in any form or by any means without the express written permission of the publisher. Distribution by third parties is prohibited. Prohibited distribution includes, but is not limited to, posting, e-mailing, faxing, archiving in a public database, installing on intranets or servers, and redistributing via a computer network or in printed form. Unauthorized use or reproduction may result in legal action against the unauthorized user.