Stein and Legislative Leaders File Final Briefs Before Nov. 10 N.C. Supreme Court Arguments on Judicial-Vacancy and Board Appointments
Gov. Josh Stein is challenging two kinds of laws: one limits whom he can pick to fill appellate court seats, and the others change his appointments to state boards. His separate appeal over the elections board, now appointed by Auditor Dave Boliek, is a different case.
Two fights, one courtroom
On Nov. 10, the North Carolina Supreme Court will set aside 2½ hours for two combined cases, Stein v. Berger and Stein v. Hall[2]. Gov. Josh Stein, a Democrat, is on one side. Senate Leader Phil Berger and House Speaker Destin Hall, both Republicans, are on the other[1]. Both sides filed their last written arguments by the deadline[1].
The cases cover two kinds of laws. One kind limits whom Stein can pick when a seat opens on the state's appeals courts. The other kind removed or moved some of his appointments to state boards and commissions[1]. The court will split its time between those two issues[2].
A third dispute is often lumped in with these. It isn't on the Nov. 10 schedule, and later sections explain why.
The judge-vacancy rule
Here's how the judicial rule works. A 2024 law says the governor must fill a Supreme Court or Court of Appeals vacancy from a list. The political party of the departing judge supplies that list[6][17].
Stein points to the state constitution's Article IV, Section 19. It says such vacancies "shall be filled by appointment of the Governor"[7]. His brief says the law "attempts to force the Governor to fill appellate court vacancies with jurists selected by partisan political operatives"[1]. A party's executive committee holds no public office and answers to no voters. Yet it decides which three people he may choose from. Stein says that turns his choice into mostly a formality[17].
Legislative leaders read the same section differently. It names who appoints, they say, and the governor still does. In their view it doesn't bar lawmakers from setting who is eligible[7]. They add that lawmakers routinely set qualifications for offices. They also say the rule keeps a seat with the party voters chose, until the next election[7][15].
The procedural path matters. A three-judge trial panel struck the rule down. The Court of Appeals reversed that ruling 2-1, so Stein is the one appealing[6]. The rule stays in force until the Supreme Court acts[6].
Who controls the boards
The board fight is a mixed picture. The Court of Appeals upheld changes to four bodies: the Wildlife Resources Commission, the Emergency Management Commission, the Coastal Resources Commission and the Residential Code Council. It struck down changes to three others[5]. Both Stein and Republican Treasurer Brad Briner have appealed parts of that ruling[13].
Stein leans on earlier state Supreme Court rulings on separation of powers. Those say the governor needs enough control over executive agencies to carry out his duty to see that laws are "faithfully executed"[12]. All five living former governors back him. They are Democrats Mike Easley, Bev Perdue and Roy Cooper, and Republicans Jim Martin and Pat McCrory[4]. They write that although their affiliation is bipartisan, their interest is "nonpartisan"[4].
The legislative side asks a blunt question in its brief: "Does the North Carolina Constitution require that the Governor control a majority of appointments to every statutory board and commission? The answer is no."[1]
Their key idea involves the Council of State. That's the group of statewide executive officials voters elect separately from the governor, such as the auditor, treasurer and labor commissioner. Lawmakers and these officials argue the executive branch isn't just the governor. If appointments move to another elected executive official, they say, the power stays in the executive branch and still answers to voters[3][8].
Auditor Dave Boliek and Labor Commissioner Luke Farley, both Republicans, filed briefs backing the legislators[3]. So did the conservative John Locke Foundation, which says the constitution gives the General Assembly broad power to structure state government[14]. Farley has argued that an earlier court ruling threatens the Council of State's independent role[20].
The case that isn't on the calendar
The elections board is the most politically charged piece, and it isn't part of Nov. 10. The Court of Appeals ruled 2-1 on Sept. 16 that the legislature could move elections-board appointments from the governor to the auditor[8]. Stein has asked the Supreme Court to review that ruling[9][10].
The stakes are concrete. Boliek's appointments changed the State Board of Elections and all 100 county boards from 3-2 Democratic majorities to 3-2 Republican majorities[10][16]. Those boards stay in place while Stein's petition is pending[8][9].
Stein warns that the lower court's logic would let lawmakers move "any executive duty or power" to whichever official they "favor more at any time"[9]. The legislature's answer is the same Council of State reasoning used in the Nov. 10 cases[8]. Some coverage blurs the two matters together. They are separate.
Why the stakes run past the briefs
Underneath the constitutional text sit three facts of political life. North Carolina has divided government. A Democrat is governor, Republicans control the General Assembly, and Republicans hold the auditor, treasurer and labor commissioner posts. So power moved away from the governor tends to land with the other party[3][13].
Courts matter too. The party-list rule decides which party fills appellate seats that open between elections. Republicans hold a majority on the state Supreme Court, and voters choose judges on partisan ballots[6][18].
Each side also has an institutional interest. Any governor, of either party, has a reason to keep control over the agencies that carry out state law. Any legislature has a reason to keep room to redesign those agencies. Stein wants to keep the office's appointment power for himself and future governors[4][9]. The leaders want to protect laws their supermajority passed[1][16]. If they lose, they may have to turn to constitutional amendments instead[5][12].
Business is watching as well. The N.C. Chamber, the state's main business lobby, notes that boards like the Coastal Resources Commission regulate businesses directly[12]. These bodies shape coastal permits, building codes, wildlife rules and utility decisions[5][13].
How the coverage split
Most detailed reporting comes from Carolina Journal, which is run by the John Locke Foundation. It quotes both sides and reports the former governors' brief. But its headlines use words like "showdown" and "clash," and it runs separate stories on Republican amicus briefs, including one from its own parent group[1][2][14]. North State Journal's headline on the elections ruling, "Court lets auditor keep elections appointments," treats Boliek's power as the starting point.
Regional and public outlets lead with the partisan result. WUNC and CBS17 stress that the elections boards flipped to Republican majorities, and CBS17 leans on Stein's petition language[8][9]. Courthouse News Service titled its judicial story "North Carolina governor can't claw back judicial appointment power." That phrase treats the appeals ruling as the baseline while the case is still on appeal[6]. The Daily Tar Heel's headline calls the September ruling a Supreme Court ruling, though it came from the Court of Appeals[16].
National and foreign outlets have largely passed on the story. That leaves the court with few outside readers beyond the state itself.
What happens on Nov. 10 is the open question. The justices could treat the judicial and board issues as one principle or as two. Whatever they decide, Stein's separate elections-board petition is still waiting.
Summary
Gov. Josh Stein, a Democrat, and the Republican leaders of the General Assembly have filed their last written arguments before the North Carolina Supreme Court[1]. The court has set aside 2½ hours on Nov. 10 to hear two combined cases, Stein v. Berger and Stein v. Hall[2]. The other side is Senate Leader Phil Berger and House Speaker Destin Hall[1]. Stein is challenging laws that limit his choices when he fills vacancies on the state's appeals courts. He is also challenging laws that removed or moved some of his appointments to state boards and commissions[1].
The judicial part works like this. When a Supreme Court or Court of Appeals judge leaves early, the governor must now pick a replacement from a list. The list comes from the political party of the departing judge[6][17]. Stein cites the state constitution, which says such vacancies 'shall be filled by appointment of the Governor'[7]. Legislative leaders answer that the governor still makes the appointment. In their view, the constitution does not stop lawmakers from defining who is eligible[7]. A trial panel sided with Stein. The Court of Appeals then ruled 2-1 against him, so he is the one appealing[6].
On the boards, the Court of Appeals split. It upheld changes to four boards and struck down changes to three[5]. Both Stein and Republican Treasurer Brad Briner have appealed parts of that ruling[13]. All five living former governors, three Democrats and two Republicans, filed a brief backing Stein[4]. Auditor Dave Boliek, Labor Commissioner Luke Farley and the conservative John Locke Foundation filed briefs backing lawmakers[3][14].
One point needs clarity. Boliek's control of the State Board of Elections is not one of the issues set for Nov. 10. That is a separate case. The Court of Appeals upheld the transfer to Boliek 2-1 in September, and Stein has asked the Supreme Court to review it[8][9]. The core dispute in both fights is the same, though. Stein says lawmakers are breaking the separation of powers by taking power from the governor. Lawmakers say they are only shaping the process, and that the power stays with elected executive officials[7][9].
The Event
Gov. Josh Stein and Republican legislative leaders Phil Berger and Destin Hall filed their final briefs before the court's deadline[1]. The briefs are in two combined cases before the North Carolina Supreme Court[1]. The court has scheduled 2½ hours of oral argument for Nov. 10, 2026[2][19]. The time is split between the judicial-vacancy issue and the boards-and-commissions issue[2].
Undisputed Facts
- The North Carolina Supreme Court will hear Stein v. Berger and Stein v. Hall on Nov. 10, 2026, with 2½ hours set aside for argument[2].
- A 2024 law requires the governor to fill vacancies on the state Supreme Court and Court of Appeals from a list. The list is supplied by the political party of the departing judge[6][17].
- A three-judge trial panel struck down that judicial-vacancy rule. The Court of Appeals reversed that decision 2-1, ruling against Stein[6].
- In the boards case, the Court of Appeals upheld changes to the Wildlife Resources Commission, the Emergency Management Commission, the Coastal Resources Commission and the Residential Code Council. It struck down changes to three other boards[5].
- All five living former governors filed a brief supporting Stein: Democrats Mike Easley, Bev Perdue and Roy Cooper, and Republicans Jim Martin and Pat McCrory[4].
- Auditor Dave Boliek and Labor Commissioner Luke Farley, both Republicans, filed friend-of-the-court briefs backing the legislative leaders[3].
- In a separate case, the Court of Appeals ruled 2-1 in September 2026 that the legislature could move appointments to the state and county elections boards from the governor to the auditor[8]. Stein has asked the Supreme Court to review that ruling[9][10].
- Boliek's May 2025 appointments changed the State Board of Elections and all 100 county boards from 3-2 Democratic majorities to 3-2 Republican majorities[10][16].
The Pressure
Strip away the moralizing and blame. What structural realities persist regardless of which narrative wins?
- Divided government
- A Democrat holds the governor's office, while Republicans control the General Assembly. Several other statewide offices are now held by Republicans, including the auditor, the treasurer and the labor commissioner. So any power moved away from the governor tends to land with the other party[3][13].
- Who sits on the courts
- The party-list rule decides which party fills appellate seats that open between elections. That matters because Republicans hold a majority on the state Supreme Court, and voters elect judges on partisan ballots[6][18].
- Control of election administration
- The board fights include the separate elections-board case. Whoever appoints the state board and the 100 county boards holds the majority on each of them[10][16].
Material realityWhatever the court decides, several things hold for now. Boliek's Republican-majority elections boards remain in place while Stein's separate petition is pending[8][9]. The Court of Appeals' rulings stand until the Supreme Court acts: the governor must choose appellate replacements from a party list, and the legislature's changes to four boards stay in effect[5][6]. These boards set coastal permitting, building codes, wildlife rules and emergency management policy. Their makeup shapes daily decisions for residents and businesses[5].
Narrative as a weaponStein and his allies are casting the case as a defense of constitutional text and a neutral principle. The bipartisan ex-governors' brief is their strongest tool for that[4]. Legislative leaders and Republican Council of State officials say they are protecting separation of powers too, by spreading executive power among elected officials instead of concentrating it in one office[3][7]. In-state conservative media, chiefly Carolina Journal, has done most of the detailed reporting, and its story choices lean toward Republican amicus filings[1][14]. Regional mainstream coverage tends to lead with the partisan effects on election boards[8][9]. National and foreign outlets have largely ignored the case. Readers should note that some coverage merges the elections-board case with the Nov. 10 cases, and the two are separate[8][9].
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 asThe constitution's text is plain, Stein argues. Appellate vacancies 'shall be filled by appointment of the Governor.' The constitution lets lawmakers set the process for some lower-court seats, but not for appellate courts[7]. His brief says the law 'attempts to force the Governor to fill appellate court vacancies with jurists selected by partisan political operatives'[1]. A party's executive committee holds no public office and answers to no voters, yet under this law it decides which three people the governor may choose from. Stein says that makes the governor's choice mostly a formality[17]. On boards, he points to past state Supreme Court rulings on separation of powers. Those rulings say the governor must have enough control over executive agencies to carry out his constitutional duty to see that laws are 'faithfully executed'[12]. The former governors, three Democrats and two Republicans, say that although their affiliation is bipartisan, their interest is 'nonpartisan'[4]. In the related elections case, Stein warns that the lower court's logic would let the legislature move 'any executive duty or power' to whichever official it 'favors more at any time'[9].
WhyStein wants to keep the governorship's power to appoint and to steer policy, for himself and for future governors. He also wants to win back control of the boards that run elections[9][4].
Impact on themIf Stein loses, he and future governors in both parties will have less say over who fills appellate court seats and who sits on key regulatory boards. A win would restore those powers and could help his separate elections-board appeal[5][9].
Frames it asThe leaders argue that Article IV, Section 19 names who fills appellate vacancies, and the governor still does. The section does not give the governor sole power to pick nominees free of qualifications set by law[7]. They note that lawmakers routinely set qualifications for offices. They also say the party-list rule keeps a seat with the party that voters chose, until the next election[7][15]. On boards, their brief asks: 'Does the North Carolina Constitution require that the Governor control a majority of appointments to every statutory board and commission? The answer is no.'[1] They argue there is no separation-of-powers violation when appointments move to other statewide officials, because those officials are also elected members of the executive branch. The Court of Appeals agreed with that reasoning in the elections-board case[8].
WhyThe leaders want to keep laws passed by their supermajority and limit a Democratic governor's reach over courts, regulators and election administration[1][16].
Impact on themIf they win, the legislature keeps broad room to redesign the governor's powers by statute. If they lose, they face new limits and may have to rely on constitutional amendments instead[5][12].
Frames it asThe Council of State is the group of statewide executive officials that voters elect separately from the governor, such as the auditor, treasurer and labor commissioner. These officials argue that the executive branch in North Carolina is not just the governor. Power shared among those elected officials, they say, still stays in the executive branch and answers to voters[3]. Farley has argued that an earlier court ruling threatens the independent role of the Council of State[20]. Briner, a party to the case, has asked the Supreme Court to revisit a part of the appeals ruling on utilities appointments that went against the legislature's changes[13].
WhyThese officials want to keep and protect appointment powers the legislature gave them, including the elections-board power Boliek now holds[3][11].
Impact on themTheir offices gain or lose real appointment powers depending on the outcome. Boliek's control of every elections board in the state hangs on the separate pending appeal[8][9].
Frames it asThe Locke Foundation, a conservative think tank, backs lawmakers. It argues that the constitution gives the General Assembly broad power to structure state government[14]. The N.C. Chamber, the state's main business lobby, describes the cases as setting how much the legislature may limit the governor's appointment power. Boards like the Coastal Resources Commission regulate businesses directly[12].
WhyThe Locke Foundation wants a stronger legislature as a policy matter. Businesses want regulatory boards they can predict and that are seen as legitimate[12][14].
Impact on themControl of regulatory boards affects coastal permits, building codes and utility decisions that businesses and residents face[5][13].
Like this article?
The Bias Ledger average rating 3.5
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 |
|---|---|---|---|---|
| Carolina Journal | U.S. right | 3 | Stein, lawmakers submit final words in showdown at top NC court | The paper covers the case most thoroughly and quotes both sides. But 'showdown' and 'clash' cast it as a contest, and it gives separate stories to each Republican amicus brief, including one from its own parent group, the Locke Foundation. It does report the bipartisan ex-governors' brief backing Stein. |
| WUNC | U.S. center-left (public radio) | 3 | NC Court of Appeals rules against Stein in elections board lawsuit | The headline is straight. The coverage puts the partisan result first: the board went from a Democratic to a Republican majority. The constitutional theory comes second. |
| The Daily Tar Heel | U.S. center-left (student newspaper) | 3 | Gov. Stein appeals N.C. Supreme Court ruling transferring elections board appointment authority to State Auditor | The headline says 'Supreme Court ruling,' but the September ruling came from the Court of Appeals. The mislabel blurs where the case actually stands. |
| North State Journal | U.S. right | 4 | Court lets auditor keep elections appointments | The headline treats Boliek's power as the starting point ('keep'). It does not say the power was taken from the governor by a 2024 law. |
| CBS17 | U.S. center (local commercial TV, Nexstar) | 4 | Stein asks NC Supreme Court to overturn ruling on state elections board appointments | The story mostly runs Stein's petition language, such as 'at its whim' and 'any executive duty.' It gives lawmakers' textual argument less space. |
| Courthouse News Service | U.S. center (legal trade press) | 4 | North Carolina governor can't claw back judicial appointment power | The phrase 'claw back' frames the power as already lost by the governor. That accepts the appeals court's view as the baseline while the case is still on appeal. |
References
- Stein, lawmakers submit final words in showdown at top NC court — Carolina Journal · U.S. right; published by the conservative John Locke Foundation
- Stein, legislative leaders to clash in top NC court on Nov. 10 — Carolina Journal · U.S. right; John Locke Foundation
- Boliek, Farley support legislators in NC court battle with Stein — Carolina Journal · U.S. right; John Locke Foundation
- Former NC governors all back Stein in cases at top state court — Carolina Journal · U.S. right; John Locke Foundation
- NC Appeals Court issues mixed ruling for Stein, legislators in appointments fight — Carolina Journal · U.S. right; John Locke Foundation
- North Carolina governor can't claw back judicial appointment power — Courthouse News Service · U.S. center; independent legal news wire
- Legislative leaders defend appointment limits in North Carolina Supreme Court briefs — NC Political News · State political news site; orientation not clearly disclosed
- NC Court of Appeals rules against Stein in elections board lawsuit — WUNC · U.S. center-left; public radio licensed to UNC
- Stein asks NC Supreme Court to overturn ruling on state elections board appointments — CBS17 · U.S. center; local commercial TV owned by Nexstar
- Stein appeals elections board appointment ruling to top NC court — Carolina Journal · U.S. right; John Locke Foundation
- NC Supreme Court allows Auditor Boliek to maintain elections board appointments — Carolina Journal · U.S. right; John Locke Foundation
- NC Supreme Court to Hear Separation-of-Powers Cases — NC Chamber · Statewide business lobby; generally aligned with the business-friendly legislative majority
- Stein, Briner appeal rulings on judicial, utilities appointments — Carolina Journal · U.S. right; John Locke Foundation
- Locke brief backs lawmakers in appointments fight at top NC court — Carolina Journal · U.S. right; John Locke Foundation, which itself filed the brief described
- Briefs filed in case over gubernatorial judicial appointments — North State Journal · U.S. right; conservative-leaning statewide paper
- Gov. Stein appeals N.C. Supreme Court ruling transferring elections board appointment authority to State Auditor — The Daily Tar Heel · U.S. center-left; independent UNC student newspaper
- NC constitutional scholar sides with Stein in judicial vacancy dispute — Carolina Journal · U.S. right; John Locke Foundation
- 2026 North Carolina judicial elections — Wikipedia · Crowd-sourced reference; no institutional orientation
- Stein, top lawmakers to get 2+ hours for disputes at top NC court — Carolina Journal · U.S. right; John Locke Foundation
- Farley said recent court ruling threatens Council of State — Carolina Journal · U.S. right; John Locke Foundation