Republicans in North Carolina have gone to extraordinary extremes to undermine democracy, but their latest power grab can only be described as a nuclear attack on the rule of law: They want to gerrymander the judiciary and then pack the state Supreme Court, all in order to do away with the one-seat Democratic majority on the bench.
It’s a devastatingly devious scheme, and it all begins with the GOP’s gerrymander of the legislature itself—maps that allowed the party to lock in veto-proof majorities even though they’ve been struck down as unconstitutional by the courts. With that ill-gotten hammerlock on the state House and Senate, Republicans last week placed a constitutional amendment on the ballot this fall that would transfer the power to fill judicial vacancies from Democratic Gov. Roy Cooper to legislators themselves.
And if the measure passes, it would effectively gerrymander the judiciary. That’s because this amendment would create a commission to provide the governor with a list of names from which he or she would choose an appointee any time there’s a judicial vacancy. But that commission would be a sham: It would be stocked with members chosen by the legislature—that is to say, the GOP—and it could therefore send Cooper nothing but hardcore conservative partisans, giving him no one else to choose from.
But there’s more. North Carolina's constitution allows lawmakers to add two more justices to the state Supreme Court, simply by passing a new law doing so. Right now, the court has seven members, with four Democrats and three Republicans. You can see where this is going: If the amendment passes, the GOP could then put two more justices on the court, creating vacancies that their rigged commision would be in charge of recommending names for.
And with that, the North Carolina Supreme Court would have a five-to-four Republican majority.
Note that Republicans could pull this off even if they lose their illegally obtained supermajorities in November (which looks likely) by calling a lame-duck session after the elections to pack the court over Cooper's veto. State House Minority Leader Darren Jackson took to the House floor to accuse the GOP of preparing to do exactly this on Thursday and dared his Republican colleagues to deny it.
North Carolina Republicans have relentlessly shown they will stop at nothing to hold onto power. They have gerrymandered every level of government from Congress down to local school boards. When they passed one of the most restrictive voter suppression laws since Jim Crow, a federal court struck it down for targeting black voters "with almost surgical precision." And when Cooper ousted GOP Gov. Pat McCrory in 2016's elections, the GOP legislature used a lame-duck session to try to usurp as much power as they could, much like this judicial appointment amendment would.
With the U.S. Supreme Court poised to take a radical lurch to the right following Anthony Kennedy's retirement, state courts will soon become the last refuge for those seeking to place a check on Republican power run amok. Consequently, defeating this amendment in this November's referendum is critical for preserving the independence of the one branch of North Carolina's government that is currently able to limit the GOP.
But even if this amendment succeeds, Democrats have one other way to stop the GOP takeover of the court: at the ballot box. Earlier this week, Daily Kos proudly announced our endorsement of Democrat Anita Earls in her race against Republican Justice Barbara Jackson this fall. As a civil rights attorney, Earls has fought and won cases against GOP gerrymandering and voter suppression. Crucially, if she prevails, Democrats would hold five seats on the high court, meaning that even if the GOP went ahead with its court-packing scheme, Democrats still have a five-to-four majority.
However, Earls doesn't have an easy road ahead of her. With their power on the court threatened, Republicans eliminated this year's primaries entirely, forcing all candidates to run on a single ballot in the fall so that fake Democrats could try to split the vote. But Earls scored a very lucky break when no other Democrat ended up on the ballot, and a second Republican made it on there instead.
And if Earls wins and voters defeat this amendment, she’d be able to join what would be a five-to-two Democratic majority to strike down Republican gerrymandering and voter suppression laws in a way that would not be subject to U.S. Supreme Court review. That very thing happened earlier this year in Pennsylvania, where a Democratic-majority Supreme Court interpreted the state constitution to ban gerrymandering. North Carolina's constitution guarantees similar rights.
Indeed, Republicans fear that exact outcome, which is why they passed another constitutional amendment—this one to enshrine a voter ID requirement. They also recently overrode Cooper’s veto of a law that tries to eliminate Saturday early voting only to abruptly pass a subsequent measure to restore it on a temporary basis this year. Since black voters disproportionately used Saturday voting, it’s likely that Republicans were worried about judicial review until the courts move further right.
But that isn’t the end of it: The GOP put a third amendment on the November ballot this week that would transfer control of the bipartisan state Board of Elections from the governor to the legislature itself. When Cooper took office, Democrats would have gained a majority on the board and been able to reverse past voter suppression measures the previous GOP majority had enacted, but this amendment would make that impossible. Republicans, desperate to avoid this fate, previously passed three separate statutes in furtherance of this goal, but state courts struck down or curtailed them every time.
Republicans in North Carolina have pursued every imaginable angle in their quest to ensure they'll remain in power no matter how much or how often the electorate would prefer Democrats in a fair election. But voters will have the power to fight back this fall by electing Anita Earls and rejecting this amendment to gerrymander the judicial branch.