A special legislative session in North Carolina last week failed to result in the repeal of House Bill 2—the infamous “bathroom law” that has made the Tar Heel State synonymous with anti-trans/anti-gay intolerance and thus cost businesses and workers millions of dollars. Yet that was only the second-most appalling legislative news from Raleigh in the last couple of weeks. The even bigger story is the state GOP’s effort to override the popular will.
In November, North Carolina voters chose Democrat Roy Cooper to replace incumbent Republican Pat McCrory as their governor. McCrory took a month to concede, raising bogus voter fraud allegations. Then, in a special session just two weeks before Cooper’s inauguration, the GOP-controlled North Carolina legislature passed new measures that strip the governor of many of the position’s powers. Lame-duck Governor McCrory signed those bills into law.
The new measures are unfair and extreme but not entirely unprecedented. Since the earliest days of the Republic, lawmakers have sometimes sought to change the rules to gain partisan advantage. The new North Carolina measures might succumb to looming legal challenges under state and federal law, but they might not. Whatever their ultimate fate, the North Carolina measures underscore the willingness of politicians who gain elected office to undermine democracy itself.
The New Laws
The new North Carolina allocation of power was accomplished through two laws. SB 4 strips the governor of the ability to appoint a majority of the members of the State Board of Elections. It expands the Board’s membership from five to eight, to be evenly divided between the two major parties.
If that looks fair, the appearance is deliberately misleading. The law is filled with booby traps. For example, in Section 138B-2(f), the law specifies that the chair will alternate yearly between the two largest parties in the state, with the party with the most registered voters holding the chair in odd-numbered years and the party with the second-most voters holding it in even-numbered years. Power sharing like this is fair, right?
Wrong. Registered Democrats outnumber registered Republicans in North Carolina, while major elections in the state occur during even-numbered years. Thus, the provision is simply an elaborate ruse to ensure that a Republican will chair the Board of Elections in election years—doing so with seemingly neutral language that accomplishes its nefarious purpose because Democrats outnumber Republicans.
Other aspects of the law are also clearly partisan, if one knows the players. For example, the law removes the power of the state supreme court to hear appeals as of right in cases in which a state law is challenged as unconstitutional under the state or federal constitution. Why? Because, November’s election led to a majority of Democrats on the North Carolina Supreme Court.
HB 17, the other reorganization act passed by the legislature and signed by the outgoing Republican governor, strips the incoming Democratic governor of most of his powers with regard to education. No pettiness was beneath the legislators who voted for HB 17, which even removes the governor’s power to appoint two high school students to serve as advisors to the State Board of Education. Beyond education, the law also reduces the number of state employees the governor may appoint from 1,500 to 425.
Potential Legal Challenges
North Carolina’s new power-stripping laws face potential legal challenges on federal and state grounds. As UC Irvine law professor Rick Hasen has noted, by watering down protections for minority voters, SB 4 could run afoul of the federal Voting Rights Act.
Meanwhile, Article IX, Section 4 of the North Carolina Constitution expressly authorizes the governor to appoint the members of the State Board of Education, while Article IX, Section 5 broadly empowers the Board. By transferring authority over education from the gubernatorially-appointed Board to the Superintendent—merely an administrative official per Article IX, Section 4, clause (2)—HB 17 could be said to run afoul of the state constitution, notwithstanding the legislature’s undoubted power to make substantive laws with respect to education.
But wait. Wouldn’t a state constitutional challenge be prevented from reaching the friendly confines of the North Carolina Supreme Court by SB 4? Not necessarily.
A basic principle of American jurisprudence holds that a court always has jurisdiction to determine its own jurisdiction. The state supreme court could throw out the jurisdiction-stripping provision of SB 4 as violating Article IV, Section 12, clause (1) of the state constitution, which broadly states that the “Supreme Court shall have jurisdiction to review upon appeal any decision of the courts below, upon any matter of law or legal inference.” The state high court could then invalidate one or more of the education provisions of HB 17 under the state constitution’s Article IX.
It is also possible that both SB 4 and HB 17 could be completely invalid on the technical ground that the special session at which they were rushed through was not properly initiated under state law. However, even if SB 4 and HB 17 are invalidated on technical grounds, that would not necessarily restore majority rule in North Carolina for very long. Thanks in no small part to partisan gerrymandering, Republicans hold veto-proof supermajorities in both houses of the North Carolina legislature. If the courts invalidate SB 4 and HB 17 on technical procedural grounds, the legislature could dot the i’s and cross the t’s to re-enact equivalent measures over the veto of Governor Cooper in the new year.
There may be other legal challenges available as well. I am not an expert in North Carolina law, but Governor-elect Cooper, who has been the Attorney General of the state since 2001 and was a state legislator before that, certainly is. If anyone can find a legal means to block the new democracy-threatening laws, he can.
Taking Hardball a Step Further
To be sure, the North Carolina legislature is not the first elected body to use the levers of democracy to entrench its members’ own power.
The North Carolina GOP seems to be borrowing unsavory methods from both sides of a fight that occurred early in our history as a nation. In 1801, the lame-duck Federalist Congress passed and the lame-duck President John Adams signed the infamous “midnight judges” bill. It created new federal judgeships and other positions that were then packed with Federalists. When the Jeffersonians took office, they passed a repeal bill of dubious constitutionality (because the Constitution’s Article III grants judges life tenure), and then cancelled a full Term of the Supreme Court, ensuring that the justices would not have an opportunity to pass on the repeal bill’s constitutionality until after it was a fait accompli (and in fear of impeachment).
Meanwhile, there is relatively recent precedent for legislators of one party reducing the power of a governor of the other party. In 2004, the Democratic-majority legislature in Massachusetts stripped the governor of the power to fill a Senate vacancy to deny Republican Governor Mitt Romney that opportunity in the event that Senator John Kerry became president. The move eventually backfired, leading to a special election rather than a gubernatorial appointment by Democratic Governor Deval Patrick when Senator Ted Kennedy died. Republican Scott Brown won the special election.
It is possible to imagine the North Carolina legislation working against Republicans as well—perhaps by sparking a backlash from voters. However, it is more likely that Republicans will simply change the law once more if it looks like it is having unanticipated consequences.
Whatever the ultimate outcome, the North Carolina legislature is acting recklessly. For democracy to function, political actors must accept some limits on their ability to play hardball. Those limits are found partly in law, but of course, political actors can change the law and can even change who sits on the courts that will judge their compliance with the law. In the end, democracy depends on some level of voluntary adherence to basic norms of civil conduct. The North Carolina legislature’s latest maneuvers indicate that Republicans in the state no longer recognize that there are any limits other than what they can get away with.
That attitude is distressing but hardly surprising. We have just lived through a presidential election campaign in which the victorious candidate repeatedly violated longstanding norms—by failing to release his tax returns, by commingling his business and political operations, and most directly relevant here, by suggesting that he might not accept the result if he lost the election.
Seeing that Donald Trump did not pay a price for his violation of the norms that support democracy, North Carolina Republican legislators may have inferred that they too would pay no price. It is now up to the courts—and to the extent that they have not been completely stripped of power, the voters of North Carolina—to prove that inference wrong.
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