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Analysis

North Carolina Legislature’s Power Grab Disregards Basic Principles of Democracy

Courts and the public must stand up to lawmakers’ attempts to entrench GOP power.

When polit­ical pundits talk about “post-truth” polit­ics, they tend to focus on national debates, and partic­u­larly on a certain public offi­cial’s Twit­ter feed. But we should­n’t forget that the trend is also gain­ing momentum at the state level.

The closely divided state of North Caro­lina is (once again) the canary in the coal mine. Its GOP-domin­ated Legis­lature is seek­ing to expand its own power — includ­ing the power to change elect­oral rules for partisan advant­age, as it has repeatedly tried to do — by mislead­ing voters into chan­ging the state’s consti­tu­tion. Whether it succeeds will depend on the will­ing­ness of both courts and the public to stand up for demo­cratic values.

North Caro­lina Repub­lic­ans first won large legis­lat­ive major­it­ies in the 2010 GOP wave. They used their power to pass aggress­ive gerry­manders, award­ing them­selves 10 of the state’s 13 congres­sional seats and super-major­it­ies in both houses of the Legis­lature; to enact sweep­ing new voting restric­tions that targeted Demo­cratic-lean­ing African-Amer­ican voters with, in the words of a federal appel­late court, “almost surgical preci­sion”; and to reor­gan­ize state and county elec­tion boards so that Repub­lican offi­cials would remain in effect­ive control of the voting process. 

Many of these efforts have been knocked down by state and federal courts (though the Legis­lature’s egre­gious partisan gerry­man­der­ing is still await­ing resol­u­tion). But repeated judi­cial rebukes have not deterred the Legis­lature’s GOP major­ity; if anything, their tactics have become more brazen and have increas­ingly targeted the judi­ciary itself (like the Legis­lature’s recent move to change the rules to give Repub­lic­ans an advant­age in an upcom­ing Supreme Court race).

Last month, the Legis­lature voted to put a series of consti­tu­tional amend­ments on the Novem­ber ballot, two of which would dramat­ic­ally reshape govern­ment in North Caro­lina. The first would restruc­ture the state elec­tions board and would strip the governor of the abil­ity to appoint not only its members but hundreds of other offi­cials across state govern­ment. The second would give the Legis­lature essen­tially untrammeled power to fill judi­cial vacan­cies with polit­ical loyal­ists. 

These changes would cement GOP domin­ance despite Repub­lic­ans’ control of only one branch of govern­ment. Among other things, the changes would make it easier for Repub­lic­ans to continue push­ing for rules changes that increase their own elect­oral advant­age. 

Of course, voters tend to abhor partisan power grabs. That helps explain why the Legis­lature is doing its best to obscure what it is actu­ally doing.

In partic­u­lar, the Legis­lature voted to require ballot language for these two amend­ments that completely obscures the intent. The amend­ment that strips the governor of his appoint­ment powers over the elec­tion board and other state agen­cies is described as a house­keep­ing meas­ure to “clarify the appoint­ment author­ity of the Legis­lat­ive and Judi­cial Branches.” The judi­cial vacan­cies amend­ment appears as a proposal to fill vacan­cies through “a nonpar­tisan merit-based system that relies on profes­sional qual­i­fic­a­tions instead of polit­ical influ­ence” even though it would give the Legis­lature carte blanche to appoint judges based on polit­ics.

To head off any linger­ing risk of clar­ity, the Legis­lature voted in special session to strip the state’s Consti­tu­tional Amend­ments Public­a­tion Commis­sion (two of whose three members are Demo­crats) of the power to draft explan­at­ory titles that would go before the proposed amend­ments on the ballot. The justi­fic­a­tion for this blatantly polit­ical move was — wait for it — that the Commis­sion might write “politi­cized” titles.

In short, the GOP legis­lat­ive major­ity in North Caro­lina appears to be trying to mislead their own constitu­ents to push through changes that will ensure vastly fewer checks on their own power, includ­ing their power to continue chan­ging rules to help them­selves stay in office.

This is not how repres­ent­at­ive demo­cracy is supposed to work. First, the right to vote means noth­ing if voters cannot tell what they are voting on. This is partic­u­larly concern­ing where the voters are being asked to change their state’s highest law. 

Second, it is inher­ently suspect, and contrary to bedrock consti­tu­tional values, for a partisan major­ity to use its power to lock in more power. Elec­tions have consequences, but they should­n’t include winners getting to change the rules of the game to help them­selves stay in power. 

Histor­ic­ally, courts have acted as an import­ant insti­tu­tional check on such abuses. From enfor­cing the rule of “one person, one vote” to stamp­ing out poll taxes, courts over the last 50 years have stepped in to ensure the proper func­tion­ing of our demo­cratic system. 

In North Caro­lina, both federal and state courts have been instru­mental in restrain­ing the Legis­lature’s excesses. The courts will have the oppor­tun­ity to do so again, thanks to a legal chal­lenge announced by the governor earlier this month against the Legis­lature’s mislead­ing ballot language (our organ­iz­a­tion has filed an amicus brief in support of the chal­lenge). Hope­fully they will again rise to the chal­lenge.

But the courts can’t do it alone. Demo­cratic values can persist only if the public is will­ing to stand up for them. What happens in North Caro­lina will be a test of the strength of the public’s commit­ment to those values — and a harbinger of what to expect in the rest of the coun­try.

(Image: Shut­ter­stock.com)