North Carolina Republicans Try to Curtail the New Democratic Governor's Power

After Roy Cooper narrowly won the gubernatorial race, the GOP-led state legislature is using a special session to sharply limit the incoming executive’s authority.

N.C. House Speaker Tim Moore, Lieutenant Governor Dan Forest, and Senate President Pro Tem Phil Berger (Gerry Broome / AP)

DURHAM, N.C.—With a Democratic governor scheduled to take the reins in Raleigh on January 1, Republicans in the North Carolina General Assembly are taking advantage of an emergency session for disaster relief to bring forward a raft of bills designed to sharply curtail the governor’s power.

Among the bills introduced on Wednesday are measures that would make Cabinet appointees subject to state senate approval, remove the governor’s power to appoint trustees of the University of North Carolina system and the state board of education, and eliminate other gubernatorial appointments.

Another bill would overhaul the state’s elections boards, the latest in a long series of steps Republicans have taken to alter the voting process in the state, many of which have been turned back by federal courts. Other steps would slash currently required environmental reports and reduce regulation elsewhere.

It’s a brazen and unabashed attempt to undercut Roy Cooper, the Democratic governor-elect, in the wake of a hard-fought election that spilled well into December when Governor Pat McCrory, a Republican, refused to concede and challenged results in several counties. Voting on the bills will start Tuesday, though it’s unclear whether all of them will move forward. Republicans hold large majorities in both houses of the legislature, making it difficult for Democrats to stop the bills. Even if only a few are passed, it will be the latest trick from a legislature that has proven to be one of the most ingenious and powerful in the country since a Republican takeover in 2010. The North Carolina NAACP, which organized the influential Moral Mondays protests, has called for a major demonstration Thursday morning. Legislators could also amend the bills later in the process, tucking other measures into them.

Special sessions have proven to be a playground for mischief this year in North Carolina. In March, there was HB2, the “bathroom bill” that divided the state and created national headlines. This week, legislators returned to Raleigh for a special session billed as being about disaster relief for residents hit by flooding after Hurricane Matthew or wild fires in the western part of the state. For days ahead of the session, rumors flew that Republicans would attempt to pack the state Supreme Court, which has a 4-3 Democratic edge following November’s election, by adding two new justices, to be appointed by McCrory. On Tuesday, the rumors reached such a pitch that Dallas Woodhouse, the colorful executive director of the North Carolina Republican Party, issued a blistering statement attacking reporters for even mentioning the rumor.

On Wednesday, the General Assembly wrapped up its disaster-relief. Then Republican leaders suddenly announced that they would adjourn the special session and then promptly reopen a second special session. They said they wanted the session to be separate from the disaster-relief work, but wouldn’t say what they intended to consider during the additional session. While a governor typically calls a special session—as McCrory had for disaster relief—legislators used the same obscure maneuver they did when they passed HB2, calling themselves back into session with the support of three-fifths of legislators. House Speaker Tim Moore said the decision to open the second special session had been made only Wednesday, a lie that was quickly revealed by the list of signatures from legislators needed to call the session, dated December 12. Furious Democrats announced they were challenging the constitutionality of the new session.

In total, the bills on offer would reduce the number of appointments available to Governor Cooper to 300, a steep reduction from 1,500 for McCrory. The governor previously appointed 400 people, before Republicans increased that number to give McCrory more latitude.

The deregulation bill includes an olio of measures, from eliminating car-emissions testing in some counties to ending some state environmental reports. In lieu of packing the court, another bill would remove the ability to make a direct challenge on a constitutional matter to the state supreme court, sending them first to a state appeals court. Legislators also want to make state supreme court elections, which are currently nonpartisan, into partisan races, apparently in the belief that Mike Morgan, a Democrat, would not have defeated Justice Robert Edmunds, a Republican, if he’d had a (D) next to his name. As Rick Hasen, a law professor at the University of California-Irvine, points out, the state supreme court may also be called on to resolve legal challenges to any law that is passed.

While the moves to limit the governor directly may be the splashiest, the changes to the state boards are worthy of note. North Carolina’s somewhat idiosyncratic structure for the boards reached national consciousness this year, as Governor Pat McCrory and his allies challenged his narrow loss to Democrat Roy Cooper, the current attorney general. The election ended only in early December, with McCrory’s concession. Currently, every county election board consists of three members, two belonging to the governor’s party and one belonging to the minority party. The State Board of Elections has five members, three from the governor’s party and two from the opposition party.

Under the bill offered Wednesday night, the state board would be overhauled into an eight-member panel, with four representatives from each party—two of each appointed by the governor, and one from each party appointed by both the speaker of the house and the president pro tempore of the senate. The board would also require six votes to move on anything, likely ensuring frequent deadlocks. Moreover, the opposition party would chair the board in even-numbered years—in other words, Republicans would control the board during congressional-election years.

County boards would expand from three people to four people, two from each party. The bill would also merge the State Ethics Commission with the elections board.

It’s an ingenious political maneuver, because it allows General Assembly Republicans to paint the overhaul as bipartisan. That’s not exactly wrong, but it is extremely cynical, a critique that can be extended to many of the bills. If bipartisan boards of elections are a good idea, they were presumably an equally good idea in 2013, when McCrory took over the governorship. The same is true of Senate approval for Cabinet appointments, or reducing gubernatorial appointments. It’s also true of the appeals process, before Democrats won control of the state supreme court.

Seeking precedent, Woodhouse reached back to a 1976 power grab by Governor Jim Hunt, a Democrat. The chairman of the House Rules Committee, Representative David Lewis argued it was simply a rebalancing.

“I think to be candid with you, that you will see the General Assembly look to reassert its constitutional authority in areas that may have been previously delegated to the executive branch,” he told reporters. But Lewis also admitted, “Some of the stuff we’re doing, obviously if the election results were different, we might not be moving quite as fast on, but a lot of this stuff would have been done anyway and has been talked about for quite some time.”

Democratic Representative Darren Jackson was having none of it: “This is why people don’t trust us. This is why they hate us,” he said.

North Carolina Republicans have taken every opportunity they can to tinker with the state’s voting rules. In 2013, they passed a sweeping overhaul of voting laws, described by some experts as the most aggressive in the nation. It required voters to show ID when voting, cut back sharply on early voting, and eliminated same-day registration, among other measures. They cited the threat of voter fraud, though repeated efforts have failed to show widespread fraud. But a federal court struck most of the law down in July, saying the law had been designed to disenfranchise minorities. When McCrory came up short in November, Republicans insisted that fraud was to blame, and mounted a series of protests—most of which were rejected by Republican-led county elections board. The state did order a recount of votes in Durham County, which produced little change in the final tally.

By winning control of the legislature in 2010, Republicans also won control of the redistricting process that followed that year’s Census. They produced a map that was favorable to Republicans—a standard partisan move for either party. But they went too far. Federal judges ruled that the state’s congressional districts and state legislative districts represented unconstitutional gerrymanders. In late November, a panel of judges ruled that the state must hold special off-year elections in 2017 to correct those gerrymanders, and it ruled that legislators elected this year in unconstitutional districts will serve only a single year.

The current state legislature may be the product of unconstitutional gerrymandering, but its Republican majorities don’t have any intention of letting that stand in the way of a huge, 11th-hour legislative burst for partisan benefit.