Last month, Democrat Roy Cooper unseated Republican Gov. Pat McCrory, while Democrats also gained a majority on the state Supreme Court, breaking the Republican stranglehold on North Carolina’s state government. Now, though, Republicans have used the pretext of a lame-duck special legislative session—ostensibly convened for disaster relief—to introduce a slew of measures that radically curtail the authority of the governor and even the high court itself. This nakedly partisan plot is unprecedented in modern state history. Indeed, you have to go back to the 1890s to find a parallel, when reactionaries violently introduced Jim Crow after a multiracial coalition of progressives briefly won power.
The scope of the GOP’s war on democracy is stunning. Republican proposals would remove the governor’s party’s control over all the state and county boards of election. They would require state Senate approval for the governor’s cabinet appointees. One bill would slash the governor’s number of executive branch appointees from 1,500 to 300. Another eliminates the governor’s ability to appoint members of the state board of education and the University of North Carolina. One more measure would make state Supreme Court races partisan and require state constitutional challenges to first go before the Republican-dominated state Court of Appeals. Republicans might still even outright pack the Supreme Court to regain their majority.
Legislative Republicans under Gov. Pat McCrory had already put North Carolina on the front lines of the battle against voting rights. Almost immediately after the Supreme Court gutted a key provision of the Voting Rights Act in 2013, McCrory signed America’s most sweeping voter suppression law in half a century, which included a strict voter ID requirement, the end of same-day registration, and cutbacks to early voting opportunities. Republicans literally ordered data on which voting methods black voters used more and eliminated them. This law was so extreme that a federal court said it “targeted African Americans with almost surgical precision” when it struck it down in July.
Republicans had previously gerrymandered the legislature so aggressively that they won veto-proof majorities in 2012 despite losing the popular vote, and they easily maintained them in 2016 despite McCrory’s loss. A court in 2016 struck down those maps as unconstitutional racial gerrymanders, meaning that North Carolina Republicans are using an illegally obtained legislative majority to usurp the powers of the fairly elected new Democratic governor. Democracy relies on electoral losers recognizing the legitimacy of the victor, and this breathtaking power-grab can only be described as a full-blown legislative coup d’état designed to subvert democracy itself.
Below we examine the details of each of the GOP’s proposals.
STATE AND COUNTY BOARDS OF ELECTIONS
Under current state law, the governor’s party controls the state board of elections with a three-to-two majority, and it also controls all 100 county elections boards with a two-to-one majority. After Republicans took power in 2013 with McCrory’s victory, they used control over these election boards to engage in sweeping voter suppression efforts.
They removed polling places from college campuses and heavily minority communities as a way to make voting far more inconvenient for Democratic-leaning voters, who often lack transportation options. After a federal court in 2016 ordered the restoration of a week of early voting that the GOP had eliminated under their sweeping 2013 voter suppression law, Republicans on the state board of elections urged counties to implement changes to limit early voting hours—which they were able to do because the GOP held majorities on all those local boards.
The newest Republican proposal would create an eight-member state elections board with four members from each party, requiring a supermajority of six votes to take action. They would similarly create two-to-two partisan split on all 100 county boards. Consequently, any action Democrats might want to take in order to expand access to voting would be subject to a Republican veto.
Furthermore, Republicans are trying to prevent the state board from having any involvement with redistricting. Last month, a federal court ordered the state to redraw its unconstitutional legislative districts and hold special elections next year under new maps. That means North Carolina Republicans could lose their veto-proof legislative majorities next year. The state elections board provides important election data to map-makers, so Republicans would literally make it harder for new maps to be drawn.
Republicans are spinning this radical change as a bid to promote bipartisan fairness, but the goal is simply to create gridlock. If this change were truly about fairness, Republicans would have passed it when they assumed power in 2013, not only because they lost it in 2016.
North Carolina's governor has the power to appoint the heads of key departments concerning transportation, natural resources, the environment, and more. Republicans have introduced a measure to require that these posts be subject to state Senate approval. Since the legislature is hopelessly gerrymandered to produce a Republican majority, that simply means Republicans would institutionalize a veto over any Democratic appointees.
Similarly, Republicans would slash the number of executive branch appointees from roughly 1,500 to 300. After McCrory took over from Democratic Gov. Bev Perdue in 2013, the Republican legislature dramatically increased the number of these appointments, meaning this reversal is a transparently cynical ploy to retain power. That would leave Republican officials in charge of key regulatory decisions. To give you a sense of the kinds of things the GOP would target, the legislature even tacked on a measure to abolish car-emissions testing requirements to this package.
Republicans would also completely eliminate the governor’s authority to appoint members of the state Board of Education and to the UNC system’s board of governors. Under McCrory, Republicans have tried to eviscerate public education so that they could privatize and profiteer off of it. Their proposal would give the legislature itself the authority to appoint board members and would transfer other powers to the superintendent of public instruction—a Republican elected official.
STATE SUPREME COURT
Democrats won a four-to-three majority on the nominally nonpartisan state Supreme Court in 2016 for the first time in well over a decade. Republicans almost immediately began contemplating packing the court with two more justices—who would be appointed by McCrory right before he leaves office. Although Republican leaders have denied they plan to follow through with this ploy, they offered no hint before Election Day about their current agenda to limit the governor’s powers, so court-packing can’t be ruled out.
Even if Republicans don’t proceed on that front, though, they have nonetheless introduced a bill that would curtail the court’s authority. Currently, appeals concerning state constitutional matters go directly before the state Supreme Court. The latest Republican bill would have those legal matters first get heard by the state Court of Appeals, where Republicans hold a commanding majority, and would limit the sort of appeals the Supreme Court can hear.
Republicans would also make Supreme Court races partisan, stemming from their belief that incumbent Republican Justice Bob Edmunds only lost the 2016 election to Democrat Mike Morgan because candidates were not identified by party labels on the ballot, and Morgan was listed first. They might very well be right that they would have prevailed in a partisan race, but that makes this change even all the more obscene: It’s flagrantly motivated by power, not democratic principles.
Republicans had previously tried to switch Supreme Court races to retention elections ahead of 2016, where incumbents would simply face a “yes” or “no” vote. That ploy came about only after Republicans had spent millions trying to oust every remaining Democratic justice in the 2014 election cycle. The switch to retention elections was a transparent bid to protect Justice Edmunds from defeat, but fortunately, the state Supreme Court itself found that the change violated the state constitution.
The Supreme Court is so critical because it’s the only state institution standing in the way of Republican efforts to abrogate the governor’s powers. Democrats have promised to sue, and election law expert Rick Hasen thinks they might have a strong case in both state and federal court. Yet if Republicans succeed in packing the Supreme Court, the justices who wind up on the bench thanks to such a court-packing scheme could get to rule on the legality of the law that put them there in the first place. It’s dizzying.
The high court will also play a crucial role in the next round of legislative redistricting following the 2020 census because the governor has no ability to veto new maps. The current Democratic majority could curtail any future Republican gerrymanders, which is why the GOP wants so badly to eliminate it.
The New Jim Crow
In sum, a legislature that owes its existence to an unconstitutional gerrymander is trying to usurp the powers of a governor who was fairly elected by the people. Republicans are deeming any attempt at governance by the Democratic Party as illegitimate and are taking extreme actions—any that they can—to prevent Democrats from exercising any political power.
As we noted at the outset, there’s no precedent for this power grab in modern U.S. history. But the GOP’s behavior is strongly reminiscent of the reactionary backlash to North Carolina’s populist flourishing in the mid-1890s, when a coalition of white progressives and black voters briefly took power. White supremacists violently overthrew the multi-racial local government of the city of Wilmington in an 1898 coup d’état. The state legislature soon followed up with a raft of measures that prevented African Americans from voting, a bondage they were not released from until the passage of the Voting Rights Act in 1965.
Republicans are fighting to usher in a new era of Jim Crow, and what we are witnessing now in North Carolina is simply a bid to overturn democracy itself.