Amicus Brief: NC General Assembly’s Attempt to Entrench One-Party Power is Unconstitutional Threat to Democratic Institutions

August 3, 2017

Today, the Brennan Center for Justice at NYU School of Law and Democracy North Carolina filed an amicus brief with the North Carolina Supreme Court in Cooper v. Berger, in which the state’s newly-elected Governor, Roy Cooper, is challenging the General Assembly’s attempt to reorganize state and county election boards so that they will no longer be controlled by the Governor’s party, as they have been for more than a century. Among other things, the new law prevents replacement of the Republican-appointed Executive Director and provides that the election boards will be chaired by Republicans in every presidential and gubernatorial election year.

According to the brief, the General Assembly’s action is an attempt to entrench its majority party, the Republicans, in control over North Carolina’s electoral system regardless of their loss of voter support. This clashes with bedrock principles underlying the Constitutions of the United States and the State of North Carolina. Based on these principles, courts have interpreted the law to thwart political entrenchment in many circumstances involving the electoral and political processes. The North Carolina Supreme Court should do the same here.

“The General Assembly’s reorganization of North Carolina’s electoral machinery is no ordinary encroachment by one branch of government on another,” said Daniel I. Weiner, Senior Counsel at the Brennan Center, “but the centerpiece of a blatant effort to entrench one political party in power. Where other branches are unwilling or unable to fulfill their duty to safeguard the people’s interest in representative government, the courts must step in.”

“What the North Carolina legislature has done undermines a key principle of our constitutional democracy: A temporary majority should not be able to manipulate the rules to entrench a permanent advantage, regardless of what the voters decide,” said Wendy Weiser, Director of the Brennan Center’s Democracy Program. “This principle must be reaffirmed, not only for the sake of North Carolina’s citizens, but for the whole the country.”

“The General Assembly’s bold move is part of a series of actions that seem aimed at ruining fair elections in our state. Like their biased political districts and voting restrictions, the Republican plan to create gridlock if they can’t control election boards should be declared unconstitutional,” said Bob Hall, Executive Director of Democracy North Carolina. “Democrats have also manipulated the political process in the past, but that’s no defense. ‘We the people’ deserve a political system in which elected leaders from both parties must respect the will of voters through fair elections.”

The brief was filed with the assistance of Andrew H. Erteschik, a partner in the Raleigh office of Poyner Spruill, LLP.

Read the full amicus brief.

View the Brennan Center’s case page on Cooper v. Berger.

For more information or to speak with an expert, contact Naren Daniel at (646) 292-8381 or naren.daniel@nyu.edu.