LEADING OFF
● North Carolina: 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 advance 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. In this special session, Republicans enacted a new law that removes the governor’s party’s control over all the state and county boards of election. That same measure also makes previously nonpartisan state Supreme Court races into partisan contests and requires state constitutional challenges to first go before the Republican-dominated state Court of Appeals. The legislature has passed another bill awaiting McCrory’s signature that would require state Senate approval for the governor’s cabinet appointees. This bill would also slash the governor’s number of executive branch appointees from 1,500 to 425 and eliminate the governor’s ability to appoint members of the state Board of Education and the University of North Carolina’s board of trustees.
Under McCrory, Republican legislators had already put North Carolina on the front lines of the battle against voting rights. Almost immediately after the United States 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. The 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 designed to subvert democracy itself—and reinstate a new era of Jim Crow.
Below we examine the details of each of the GOP’s new changes to North Carolina law.
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 two-to-one majorities on each. After Republicans took power in 2013 with McCrory’s victory, they used control over these election boards to engage in harsh voter suppression efforts.
They started by removing 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. A federal court then ordered the restoration of a week of early voting that the GOP had eliminated under their sweeping 2013 voter suppression law, but Republicans easily found a way around that, too, by urging 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 statute 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 splits on all 100 county boards. Consequently, any efforts Democrats might want to make 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—remember, the very same ones that have enabled the GOP to engage in this assault on democracy in the first place—and hold special elections next year under new maps. As a result, North Carolina Republicans could lose their veto-proof majorities in the legislature. So how have they reacted? Well, 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 these radical alterations as a bid to promote bipartisan fairness, but the goal is simply to create gridlock. If this were truly about fairness, Republicans would have made these changes when they assumed power in 2013, not because they lost it in 2016.
In November, Democrats won a four-to-three majority on North Carolina’s nominally nonpartisan state Supreme Court for the first time in well over a decade. Republicans almost immediately began contemplating packing the court with two more justices—who would have been appointed by McCrory right before he leaves office. Republican leaders denied they planned to follow through with this ploy and ultimately appear to have backed down, but they’ve made major changes to the state’s court system nonetheless.
Even though the GOP opted not to jam two more Republicans on to the high court, their new law would still curtail its authority. Currently, appeals concerning state constitutional matters go directly before the state Supreme Court. Now, those legal matters will first get heard by the state Court of Appeals, where the Republicans hold a commanding majority. In addition, the GOP has limited the types of appeals the Supreme Court can hear.
Republicans have also converted Supreme Court races, which until now had been nonpartisan, into partisan affairs, a move stemming from their belief that incumbent Republican Justice Bob Edmunds only lost this year’s election to Democrat Mike Morgan because candidates were not identified by party labels on the ballot, and Morgan happened to be 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 a lust for power, not democratic principles.
Republicans had previously tried to switch Supreme Court races to retention elections ahead of 2016, in which incumbents would have simply faced a “yes” or “no” vote. That ploy came about only after Republicans had spent millions unsuccessfully 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 high court will 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 on the Supreme Court could curtail any future Republican gerrymanders, which is why the GOP wants so badly to eliminate it.
The Supreme Court is also so critical because it’s the only state institution standing in the way of these very efforts to abrogate the governor’s powers. Democrats have promised to sue to stop Republicans from implementing these radical new legal changes, alleging that this special session was called in violation of the state constitution. Election law expert Rick Hasen also thinks Democrats might have a strong federal case on Voting Rights Act and equal protection grounds.
North Carolina's governor has the power to appoint the heads of key departments concerning transportation, natural resources, the environment, and more. In the bill McCrory has yet to sign, Republicans are now trying 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, in this same bill, Republicans would slash the number of executive branch appointees from roughly 1,500 to 425. 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 yet another 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.
And as we mentioned above, Republicans would also completely eliminate the governor’s authority to appoint members of the state Board of Education and to the University of North Carolina’s board of trustees, a move that could subject UNC to serious sanctions by accrediting authorities. Instead, the GOP’s changes 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. Under McCrory, Republicans have tried to eviscerate public education so that they can privatize and profiteer off of it, so this is very much in keeping with the GOP’s past behavior.
In sum, a legislature that owes its existence to an unconstitutional gerrymander is trying to usurp the powers of a governor who was chosen by the people, despite the GOP's best efforts to suppress the vote of minorities. Republicans have deemed 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 kind of power grab in modern U.S. history. But the GOP’s behavior is strongly reminiscent of an extremely dark chapter in North Carolina history: the reactionary backlash to the state’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.
STATE VOTER ID LAWS
● Arkansas: Republican state Rep. Mark Lowery introduced a bill that would revive Arkansas’ voter ID law, which the state Supreme Court previously struck down in 2014 for violating the state constitution. Republicans have since expanded their legislative majorities to surpass the two-thirds mark, and Lowrey believes that a new measure that attains supermajority support would survive state constitutional scrutiny. However, even if Republicans pass a new measure with increased support, there is no guarantee that the state Supreme Court will validate it.
● Michigan: Michigan’s state House passed a strict new voter ID measure last week almost as soon as it began debating it. With Republicans holding an even more dominant majority in the state Senate, its odds of becoming law seemed high. However, the Republican state Senate leadership now appears to have nixed that idea for the time being, as Senate Majority Leader Arlan Meekhof stated that the upper chamber would not take up the measure during the current lame-duck session like its counterpart had.
Unfortunately, this good news doesn’t mean voter ID is completely dead. The GOP’s legislative majorities aren’t going anywhere when the new session convenes in 2017, and Meekhof and the Senate might have merely wanted more time to hash out the details with the House. Republicans will be defending their tenuous hold on the Michigan state government in the 2018 elections, when unpopular Gov. Rick Snyder will be term-limited, so they may yet be looking for new suppressive voting laws to increase their chances of victory.
Consequently, a revival of this strict voter ID provision next year wouldn’t be surprising, especially given Michigan Republicans’ past record of trying to manipulate electoral laws to their advantage.
● Texas: Earlier this year, a federal court struck down Texas’ strict voter ID law in a case that was hailed as a major victory for voting rights, ruling that it had a discriminatory impact against minority voters. The law had gone into effect only after the Supreme Court gutted a key provision of the Voting Rights Act in 2013 that once forced states like Texas with a history of racially discriminatory voting laws to clear any proposed changes to voting procedures with the Justice Department.
However, now that President-elect Donald Trump will soon appoint a replacement for the late Justice Antonin Scalia to the Supreme Court, conservatives are feeling optimistic about overturning the lower court ruling on appeal. Indeed, Texas Attorney General Ken Paxton just formally asked the Supreme Court to reinstate Texas’ law, and given swing Justice Anthony Kennedy’s past rulings in favor of voter ID measures, there’s a good chance the court will oblige him.
The return of a strict ID requirement could unduly burden several hundreds thousand registered voters who lack the appropriate identification. During the 2014 election cycle, one study even suggested voter ID had decreased turnout enough among Democratic-leaning demographics to possibly have cost the party a key congressional race.
● Virginia: A panel of judges on the Fourth Circuit Court of Appeals has ruled against a Democratic-backed challenge to Virginia’s voter ID law, finding that the law had neither discriminatory impact nor intent. This appellate circuit in particular had recently been one of the friendlier ones to voting rights, and another panel on it had thrown out North Carolina’s voter ID law earlier in 2016. However, the Virginia provision was not nearly as onerous as those in other states. That the state made free voter ID cards readily available meant it was much harder for plaintiffs to prove it violated voters’ rights.
