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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.