All Five Living Former NC Governors File Brief Backing Stein in Appointment-Power Cases Set for Nov. 10 Argument
Democrats Cooper, Perdue and Easley and Republicans McCrory and Martin asked the North Carolina Supreme Court to accept a joint friend-of-the-court brief in Stein v. Berger and Stein v. Hall, two consolidated challenges to laws limiting the governor's board and judicial-vacancy appointments.
Two Republicans Are Defending a Democrat's Power to Hire
On Wednesday, Sept. 9, 2026, all five living former governors of North Carolina asked the state Supreme Court for permission to file a brief in a pair of cases about who gets to run the state[1]. Three of them are Democrats: Roy Cooper, Bev Perdue and Mike Easley. Two are Republicans: Pat McCrory and Jim Martin[1]. All five want the same thing: a win for the current governor, Democrat Josh Stein[1].
That split matters. McCrory and Martin have no reason to help a Democrat unless they believe the fight is bigger than one governor's term. Their brief argues the political-question defense raised by legislative leaders and by state Treasurer Brad Briner "should fail here"[1]. In plain terms, they're telling the court it cannot simply decline to referee this dispute.
The filing itself does not decide anything. It's a request for the justices to accept an outside opinion, known as a friend-of-the-court or amicus brief, before they hear the actual case[1]. The court still has to say yes.
What it does signal is where five people who have held the state's top job, across four decades and both parties, land on a question the legislature insists is not a legal question at all.
What Stein Says He's Losing
The brief is aimed at two consolidated cases, Stein v. Berger and Stein v. Hall, filed against Senate leader Phil Berger and House Speaker Destin Hall[1][2]. Stein is challenging laws the Republican-led General Assembly passed that changed who appoints members of several state boards, and that limited his options when a seat opens on the state Supreme Court or Court of Appeals[1][2].
The judicial piece comes from Senate Bill 382, passed in late 2024 over then-Gov. Cooper's veto[2][7]. Before that law, a governor filling an appellate court vacancy could pick any qualified person. Under SB 382, the governor must choose from three names supplied by the political party of the judge who is leaving[2].
Stein's lawyers rest their case on the state constitution's Take Care Clause, which says the governor must see that the laws are "faithfully executed"[3]. Their argument: if the legislature controls who runs the agencies that actually carry out the law, that duty becomes a title with no power behind it. Stein's brief says the challenged laws "increased legislative involvement in the appointment, supervision, and removal of decision-makers in executive agencies"[2].
Legislative leaders answer with a different constitutional passage. Their brief says lower courts turned the Take Care Clause into "a sweeping grant of power," when in fact "the Constitution assigns policymaking authority to the General Assembly, not the Governor"[3]. Their lawyer told the Court of Appeals that deciding "which Council of State member gets which statutory duty" is "a policy decision that belongs to the General Assembly," not the courts[2]. That's the political-question doctrine: the idea that some questions belong to elected lawmakers, and courts should stay out even if they could technically rule.
The Argument That Isn't About Stein at All
North Carolina elects more than just a governor statewide. Voters also pick a treasurer, an auditor and other officials who make up what the state constitution calls the Council of State[2][9][14].
That matters here because the legislature isn't just claiming power for itself. Several of the disputed laws move appointment authority from the governor to another elected official, like the treasurer or the auditor, rather than to lawmakers directly[2][9][14]. Treasurer Brad Briner, a Republican, argues that moving a duty from one statewide elected executive to another isn't "stripping" the executive branch of anything, since he answers to the same voters Stein does[9].
That framing does real work for the legislature's case. It's easier to defend moving power to an elected treasurer than to defend keeping it in the legislature itself. Briner has joined the political-question argument, saying the assignment of these duties is for lawmakers to decide, not judges[1][9].
The stakes for Briner are concrete. The Court of Appeals already upheld a law shifting a Utilities Commission appointment from the governor to him[9]. The Supreme Court's ruling will decide whether he keeps that seat.
The Score So Far: Split Decisions, No Consensus
Lower courts have not agreed with each other. A three-judge Superior Court panel unanimously struck down the judicial-vacancy limit in SB 382[5]. The Court of Appeals reversed that ruling 2-1 in January 2026[4]. Judge Allegra Collins dissented, warning the law tilts toward what she called "legislative dominance"[4].
On the boards and commissions, the record is more mixed. An all-Republican Court of Appeals panel ruled in October 2025, siding with lawmakers on four bodies — the Coastal Resources Commission, the Emergency Management Commission, the Wildlife Resources Commission and the Residential Code Council — and siding with Stein on three others, including the Board of Transportation and the Commission for Public Health[2].
The elections board fight has already gone further. SB 382 moved that board's appointment power from the governor to the state auditor, currently Republican Dave Boliek. The state Supreme Court let that change take effect in a 5-2 ruling, with Democratic-aligned Justices Anita Earls and Allison Riggs dissenting[10][14]. Supporters of the legislature note that ruling addressed a procedural stay, not the full merits of the case[14].
The state Supreme Court now carries a 5-2 Republican majority, produced through the state's partisan judicial elections[10]. Whatever it decides on Nov. 10 will be read through that fact by people on both sides.
Why This Keeps Happening, Whoever Wins
None of this started with Stein. Republicans have held legislative majorities for years while Democrats have won the last three governor's races[4]. When one party reliably controls the legislature and the other reliably wins the governorship, moving power away from the governor's office and toward the legislature or a Republican-held statewide office is the higher-payoff move, regardless of anyone's stated principles.
It also starts from an unusually low base. North Carolina's governor had no veto power at all until 1997, and by ProPublica's measure now ranks last among the 50 states in formal power[6]. Cooper and Perdue, as Democrats who held the office before Stein, have their own history with that weakness. So do McCrory and Martin, as Republicans who held it before the current fights over Stein even began.
If the SB 382 judicial provision survives, the effect outlasts any single term. A Democratic governor filling a Republican-held appellate seat would have to pick from three names chosen by the Republican Party. That locks in a court's partisan balance between elections, no matter who's governor at the time[2].
How the Story Gets Told Depends on Who's Telling It
Coverage of this fight splits along familiar lines. Carolina Journal, published by the free-market John Locke Foundation, has driven most of the close filing-by-filing coverage and reports it largely straight, though it gives more space to the legislature's Take Care Clause argument and Briner's position than to the bipartisan signal of the former governors' brief[1][2][3].
NC Newsline, part of the left-leaning States Newsroom network, and ProPublica frame the dispute as one chapter in what ProPublica's headline calls a "decade-long push to seize power" from Democratic governors[4][6]. Both lean on the state's last-place power ranking and on Judge Collins's dissent, while giving less room to the legislature's textual argument that the constitution assigns appointment authority to lawmakers[4].
The Associated Press took the more restrained route, describing the record as a "mixed ruling" — an accurate summary that also supplies less of the decade of context that explains why the fight matters[5]. Fox News used similarly plain language, calling the law one that "limits" the governor's powers rather than one that "reassigns" them, while giving the legislature's constitutional theory comparatively little room[11].
No outlet outside the United States has covered the filing or the coming argument. This is a dispute over the text of North Carolina's own constitution, with no foreign-policy angle to draw outside interest. The state Supreme Court has set aside two and a half hours for both cases on Nov. 10, one week after Election Day, when seven justices will decide whether any of these arguments settle the question, or whether the fight over who runs North Carolina continues into the next governor's term[2].
Summary
On Wednesday, Sept. 9, 2026, all five living former governors of North Carolina asked the state Supreme Court to accept a joint friend-of-the-court brief supporting Gov. Josh Stein, a Democrat[1]. Three are Democrats: Roy Cooper, Bev Perdue and Mike Easley. Two are Republicans: Pat McCrory and Jim Martin[1]. A friend-of-the-court brief, also called an amicus brief, is filed by someone who is not a party to a case. It offers the court an outside view. The court has to give permission first, which is what the former governors requested[1].
The brief lands in two consolidated cases, Stein v. Berger and Stein v. Hall[1][2]. The defendants are Senate leader Phil Berger and House Speaker Destin Hall, both Republicans[2]. Stein is challenging laws passed by the Republican-led General Assembly that changed who appoints members of several state boards, and that limited his choices when a seat opens on the state Supreme Court or Court of Appeals[1][2]. Under Senate Bill 382, passed in 2024 over then-Gov. Cooper's veto, the governor must fill an appellate court vacancy with one of three names supplied by the departing judge's political party[2][7]. Before that law, the governor could pick any qualified person[2]. The state Supreme Court has set aside two and a half hours on Nov. 10, one week after Election Day, to hear both cases[2].
The genuine dispute is about what the state constitution assigns to whom. Stein's side says the governor is given the duty to see that laws are faithfully carried out, so he must control the officials who carry them out[3]. Legislative leaders say the constitution gives policymaking authority to the General Assembly, and that deciding which elected official holds which statutory duty is a policy choice, not a question for judges[3]. That second point has a name: the political question doctrine. The former governors' brief argues directly that the political-question argument raised by lawmakers and by state Treasurer Brad Briner 'should fail here'[1].
Courts so far have split. A three-judge Superior Court panel unanimously struck down the judicial-vacancy limit[5]. The Court of Appeals reversed that 2-1 in January 2026, with Judge Allegra Collins dissenting and warning the law tilts toward 'legislative dominance'[4]. On the boards, an all-Republican Court of Appeals panel gave each side partial wins in October 2025[2]. The state Supreme Court now has a 5-2 Republican majority[10].
The Event
On Wednesday, Sept. 9, 2026, former North Carolina Govs. Roy Cooper, Bev Perdue and Mike Easley, all Democrats, and Pat McCrory and Jim Martin, both Republicans, filed a court document asking the North Carolina Supreme Court for permission to submit a joint friend-of-the-court brief supporting Gov. Josh Stein[1]. The brief is directed at two consolidated cases, Stein v. Berger and Stein v. Hall, which challenge state laws limiting the governor's appointments to state boards and commissions and his choices for filling appellate judicial vacancies[1]. Among other points, the former governors argue that the political-question defense raised by legislative leaders and Treasurer Brad Briner 'should fail here'[1]. The state Supreme Court has scheduled two and a half hours of oral argument in the consolidated cases for Nov. 10, 2026[2].
Undisputed Facts
- All five living former North Carolina governors — Democrats Cooper, Perdue and Easley and Republicans McCrory and Martin — signed the filing supporting Stein[1].
- The filing is a request for leave to submit a friend-of-the-court brief; the court decides whether to accept it[1].
- Senate Bill 382 was passed by the Republican-led General Assembly in late 2024 over then-Gov. Roy Cooper's veto[7].
- Under SB 382, a governor filling a state Supreme Court or Court of Appeals vacancy must choose from three names submitted by the departing judge's or justice's political party; before the law, the governor could name any qualified person[2].
- A three-judge Superior Court panel unanimously ruled that limit unconstitutional; the Court of Appeals reversed that ruling 2-1 in January 2026, with Judge Allegra Collins dissenting[4][5].
- In an October 2025 ruling, a unanimous all-Republican Court of Appeals panel upheld legislative changes to appointments for the Coastal Resources Commission, Emergency Management Commission, Wildlife Resources Commission and Residential Code Council, and ruled for Stein on the Board of Transportation, Economic Investment Committee and Commission for Public Health[2].
- The Court of Appeals also upheld a law shifting a state Utilities Commission appointment from the governor to Treasurer Brad Briner, a Republican[9].
- SB 382 moved appointment of the State Board of Elections from the governor to the state auditor, then Republican Dave Boliek; the state Supreme Court allowed that shift to take effect in a 5-2 decision, with Justices Anita Earls and Allison Riggs dissenting[10][14].
- The North Carolina Supreme Court currently has a 5-2 Republican majority[10].
- Oral argument in the consolidated cases is set for Nov. 10, 2026, one week after Election Day, with two and a half hours allotted[2].
The Pressure
Strip away the moralizing and blame. What structural realities persist regardless of which narrative wins?
- Divided control with one durable side
- Republicans have held legislative majorities for years while Democrats have won the last three governor's races[4]. When one party reliably holds the legislature and the other reliably holds the governorship, moving duties from the governor's office to legislatively-controlled or Republican-held statewide offices is the higher-yield move — regardless of anyone's stated principles.
- A structurally weak office
- North Carolina's governor had no veto at all until 1997 and now ranks last among the 50 states in formal power, by the measure ProPublica cites[6]. Each transfer starts from an already low base, which is why former governors of both parties treat this as an office-level problem.
- Council of State as the transfer channel
- Because North Carolina elects the treasurer, auditor and others separately, duties can be moved to a fellow statewide elected official rather than to the legislature itself[2][9][14]. That makes the transfer legally easier to defend and politically easier to describe as democratic.
- The court that decides is itself elected
- The state Supreme Court's 5-2 Republican majority was produced by partisan judicial elections, and Justice Earls's seat is on the 2026 ballot[10]. Whichever way it rules, the ruling will be read through that fact.
Material realitySeven boards and commissions are in play, covering coastal development, wildlife, building codes, emergency management, transportation projects, economic-development incentives and public health rules[2]. Whoever appoints those members shapes permits, contracts and regulations for years — long after any single election. Separately, if the SB 382 judicial-vacancy provision stands, a Democratic governor filling a Republican-held appellate seat must pick from three names chosen by the Republican Party, which locks in the partisan balance of a court between elections[2]. Two courts have already reached opposite conclusions on that provision, and the Court of Appeals split 2-1[4][5]. Argument is Nov. 10, 2026, one week after Election Day[2].
Narrative as a weaponThree groups are actively shaping how this reads. Stein and the five former governors want the story to be about the office, not the occupant — the presence of Republicans McCrory and Martin is the whole point of the filing, and it is designed to make a partisan explanation harder to sustain[1]. Berger, Hall and Briner want the story to be about text and structure: the legislature makes policy, Council of State members are elected too, and judges should stay out of a policy allocation[2][3]. National left-leaning newsrooms want the story to be about a pattern — a decade of transfers aimed at Democratic governors[4][6]. Each frame omits something. The bipartisan-brief frame skips that the two Republican former governors last held the office in 2017 and 1993, before the current fights. The legislature's frame skips that these transfers began after Democrats started winning the governorship. The pattern frame skips that the state constitution really does give the General Assembly broad appointment and policymaking language, which is why lower courts have split rather than converged.
How Each Side Sees It
Each major actor’s view — how it frames things, its underlying incentive, and how it’s materially affected. Tap a side to read it.
Frames it asTheir core claim is about function, not party. The state constitution makes the governor responsible for seeing that the laws are 'faithfully executed.' If the legislature can name, supervise and remove the people who actually run executive agencies, that duty becomes a title with nothing behind it[3]. Stein's brief says the challenged laws 'increased legislative involvement in the appointment, supervision, and removal of decision-makers in executive agencies'[2]. On judges, Stein's lawyers argue the constitution's Article IV 'erects different regimes for filling vacancies in different judicial offices' — the legislature may set the process for some judicial posts, they say, but not for appellate vacancies[2]. The former governors add the argument only they can make: two Republicans who held the office say the problem outlasts whoever wins the next election. Their brief also argues the political-question defense 'should fail here' — that is, courts cannot simply decline to decide[1].
WhyStein wants to run agencies he is judged on. The former governors, including the Republicans, have an institutional stake in the office itself rather than in Stein[1][6].
Impact on themIf the Court of Appeals rulings stand, Stein loses appointment control over several boards and must fill appellate vacancies from a rival party's shortlist[2][4]. He would still be blamed for how those agencies perform.
Frames it asThey argue the courts have the structure backwards. In their brief, lower-court decisions turned the Take Care Clause into 'a sweeping grant of power,' when 'the Constitution assigns policymaking authority to the General Assembly, not the Governor'[3]. North Carolina's constitution creates a Council of State of separately elected officials — treasurer, auditor, and others — who answer to voters directly, not to the governor. Their lawyer put it this way: deciding 'which Council of State member gets which statutory duty' is 'a policy decision that belongs to the General Assembly' when the duty is not assigned by the constitution to a specific officer[2]. That is the political question doctrine at work: courts stay out of choices the constitution gives to elected legislators. On judges, they note the legislature has long set rules for filling many judicial vacancies. They asked the justices to uphold the changes to all seven boards and commissions[2].
WhyLegislative leaders want to lock in policy through the agencies that carry it out, not only through statutes a governor's appointees can soften. Republicans have held legislative majorities while Democrats have won the last three governor's races[4].
Impact on themA loss would unwind parts of SB 382 and related budget provisions and limit future restructuring. A win would confirm a durable tool: moving duties to Council of State offices their party holds[2][14].
Frames it asTheir argument is that they are elected too. A treasurer or auditor who won a statewide race has his own mandate from the same voters. Giving him a board seat or an appointment is not 'stripping' the executive branch — it moves a duty from one statewide elected executive to another. Briner joins the political-question position that the assignment of such duties is for the legislature[1][9].
WhyMore statutory duties mean more real authority over utilities rates, elections administration and state contracting[9][14].
Impact on themThe Court of Appeals upheld the transfer of a Utilities Commission appointment to Briner; the state Supreme Court's ruling will decide whether he keeps it[9].
Frames it asThe court frames its own role as deciding the scope of two constitutional provisions, not refereeing a partisan fight. It granted review, consolidated the cases and set an unusually long argument[2]. It must also decide the threshold question: whether these are legal questions at all, or political ones it should leave alone[1][3].
WhyInstitutional. A broad ruling either way sets the rules for every future governor and legislature in the state.
Impact on themThe court has a 5-2 Republican majority[10]. Critics of the legislature note it has already ruled 5-2 to let the elections-board transfer take effect, over dissents by Justices Earls and Riggs[10]. Supporters note that ruling addressed a procedural stay, not the merits[14].
Frames it asAdvocates on the governor's side argue voters elected Stein by nearly 15 points in 2024 and should get the executive they chose[6]. Advocates on the legislature's side argue voters also elected the legislative majorities and the Republican Council of State members, and that the constitution — not the margin of a single race — decides who holds which power[3].
WhyNeither camp of voters gets a direct say here; the outcome is decided by seven justices.
Impact on themThe boards at issue set coastal development rules, wildlife policy, building codes, disaster response, transportation projects and public health rules[2]. Whoever appoints them shapes those decisions for years.
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The Bias Ledger average rating 3.8
The same story, as framed by outlets across the spectrum, ordered least to most biased. The bias score (1 = straight, 10 = heavily spun) is an AI assessment of that framing — click an outlet to see its track record. The tell is the word choice or omission that reveals the angle.
| Outlet | Vantage | Bias | How they frame it | The tell |
|---|---|---|---|---|
| Associated Press | U.S. center (wire service; read here on a republisher's site) | 1 | 'North Carolina judges issue mixed ruling on governor's appointment powers' | 'Mixed ruling' is the least loaded available summary and matches the record. The wire's restraint cuts the other way too: it rarely supplies the decade of context that explains why the case matters. |
| Carolina Journal | U.S. right (news outlet of the free-market John Locke Foundation) | 3 | 'Former NC governors all back Stein in cases at top state court' | The most detailed filing-by-filing coverage available, and it is largely straight. But it quotes the legislature's Take Care Clause brief and Briner's position at length, and treats the bipartisan governors' filing as one more document rather than as a political signal. Its opinion section separately frames the case as courts 'clarifying' legislative power — a framing friendly to the lawmakers. |
| Fox News | U.S. right | 3 | 'Judges block North Carolina law limiting governor's powers' | Plain event headline, notable for using 'limiting' rather than the lawmakers' preferred 'reassigning.' Coverage is thin and episodic — rulings get reported, the legislature's constitutional theory largely does not. |
| Courthouse News Service | U.S. center, courts-focused trade coverage | 4 | 'North Carolina governor blasts law stripping election board appointment ability' | 'Blasts' and 'stripping' in one headline import the challenger's framing, but the body is close courtroom reporting that quotes both sides' lawyers directly — including the legislature's fungible-Council-of-State exchange. |
| NC Newsline | U.S. left (States Newsroom nonprofit network, funded largely by progressive donors) | 5 | 'Appeals Court sides with NC General Assembly in latest lawsuit over appointment powers' | 'Latest' does real work: it frames each ruling as an installment in a continuing campaign. Foregrounds Judge Collins's 'legislative dominance' dissent while giving the 2-judge majority's reasoning less room. |
| ProPublica | U.S. left-leaning nonprofit investigative newsroom | 7 | 'Inside the North Carolina GOP's Decade-Long Push to Seize Power From the State's Democratic Governors' | 'Seize power' is a verdict in the headline. The reporting is documented and the last-in-the-nation power ranking is real, but the piece is built around one side's theory of the case and does not seriously engage the constitutional argument that appointment authority is legislative. |
References
- Former NC governors all back Stein in cases at top state court — Carolina Journal · U.S. right; news outlet of the free-market John Locke Foundation
- Stein, legislative leaders to clash in top NC court on Nov. 10 — Carolina Journal · U.S. right; John Locke Foundation
- Stein, lawmakers offer clues about upcoming NC Supreme Court arguments — Carolina Journal · U.S. right; John Locke Foundation
- Appeals Court sides with NC General Assembly in latest lawsuit over appointment powers — NC Newsline · U.S. left; States Newsroom nonprofit network, progressive-leaning donor funding
- North Carolina judges issue mixed ruling on governor's appointment powers — Associated Press · U.S. center wire service
- Inside the North Carolina GOP's Decade-Long Push to Seize Power From the State's Democratic Governors — ProPublica · U.S. left-leaning nonprofit investigative newsroom
- North Carolina GOP lawmakers override veto of bill to strip power from incoming Democratic officials — NBC News · U.S. center-left network news
- North Carolina governor blasts law stripping election board appointment ability — Courthouse News Service · U.S. center; courts-focused trade publication
- Appeals Court favors lawmakers over Stein in judicial, utilities case — Carolina Journal · U.S. right; John Locke Foundation
- NC Supreme Court allows GOP election board appointments — WCNC · U.S. center; NBC affiliate, Charlotte
- Judges block North Carolina law limiting governor's powers — Fox News · U.S. right
- Governor Stein Statement on Senate Bill 382 Litigation — Office of the Governor of North Carolina · Primary source; office of the Democratic governor who is a party to the case
- Stein v. Hall — appellate court opinion listing — North Carolina Judicial Branch · Primary source; state court system
- Foregone conclusion: legal struggle over NC elections appointment power essentially ends with court ruling — Carolina Public Press · U.S. center; North Carolina nonprofit newsroom