Appointments, redistricting and judiciary moves are culmination of NC Republicans' march to power
A few days ago, with little fanfare, state Republican lawmakers issued a list of names. They were nominees for seats on an array of boards including the North Carolina Utilities Commission, the Board of Transportation and the Environmental Management Commission, and on and on and on.
The relatively low-profile but influential appointments, often political rewards by powerful party leaders, determine the guts of important everyday policy — electricity rates, environmental regulations, highway spending, educational standards, public health and more. And yet they usually don’t rate high when it comes to political intrigue; they’re often approved with little debate.
But these board appointments — more than 90 in all, listed out in the five-page Senate Bill 761, and approved less than 24 hours after being made public Tuesday — have profound significance. If key appointments in the bill withstand legal challenges, they would represent a significant shift in power in multiple segments of state government and the culmination of a yearslong Republican effort to siphon power from the executive branch, which is often led by a Democrat.
More broadly speaking: It’s part of a continuum of successful power plays.
In the past year, Republicans have regained veto-proof supermajorities in both chambers of the state legislature and won a majority on the state Supreme Court, which is charged with making sure laws the legislature passes are constitutional. Little by little, Republican lawmakers are remaking not just policy, but much of the fabric of state government, and they’re a few key court decisions away from cementing things.
“As a political scientist, I marvel at what they’ve done,” said Derick Smith, a political science lecturer at Fayetteville State University. “But does it serve the interests of Democracy?”
The new appointments — and who has the power to make them — will be the subject of court arguments this week. A three-judge panel will decide whether to seat key appointees in the bill based on whether an underlying law shifting many of those appointments out of the governor’s control is constitutional.
That underlying law is Senate Bill 512, which lawmakers passed in April. It gives Republicans more power to appoint members to bodies that set electricity rates, decide what road projects are funded and set pollution standards for businesses.
Republican leaders say the shift will yield a better, more balanced mix of qualified appointees and encourage diversity of thought. Many of the boards targeted make major regulatory decisions, and their membership has been dominated by gubernatorial appointments.
Senate Republican leader Phil Berger sees it as a re-balancing of power, in line with a state constitution that grants far more authority to the General Assembly than the governor. Berger, R-Rockingham, also said it’s a response to Democratic Gov. Roy Cooper wielding more power through executive orders than previous governors, a routine Republican complaint during the Covid-19 pandemic, when executive power was used to shut down large swaths of the state’s economy.
But Berger also said these changes were born from “the reality that both Republicans and Democrats can win the governor's mansion, and that the dynamic of a governor of one party and a legislature of another party is something that's potentially going to be with us for a while.”
Judicial-legislative connection
If the court allows the new appointments, it would represent a major victory for Republicans whose previous efforts on this front have been rejected.
Two state Supreme Court decisions over the past decade have denied lawmakers more appointments to administrative boards, saying boards and commissions clearly serve an executive function and should be controlled by the governor. Cooper cited that precedent when he vetoed SB 512 in October. After lawmakers overrode the veto this month, Cooper sued, calling the bill a "blatantly unconstitutional legislative power grab."
Cooper’s lawsuit seeks a court injunction blocking the changes. A three-judge panel will hear those arguments Wednesday. After that, the new reality of power at the state Supreme Court comes into play.
The high court's makeup changed after the 2023 elections, though, from a 4-3 Democratic majority to a 5-2 Republican majority.
For future cases, Republicans will have more sway over the initial steps in this sort of lawsuit, too. Come Jan. 1, judges appointed by the Republican legislative majority — including those installed by last week’s appointments — will be available to hear challenges to laws passed by that same majority.
That’s because of process changes Republicans included in the state’s 625-page budget bill, which leadership unveiled a day before lawmakers had to vote on it in a take-it-all-or-leave-it proposition.
The budget gives Chief Justice Paul Newby, a Republican, more leeway to choose the three-judge panels that hear constitutional challenges. The budget also extended Newby’s judicial career by pushing the state’s mandatory retirement age for Supreme Court justices from 72 to 76.
House Democratic Leader Robert Reives, D-Chatham, noted that a leaked draft of that state budget also would have eliminated the jobs of several North Carolina judges who have ruled against Republican lawmakers in past cases. That was dropped from the final budget bill, but Reives said the threat was received.
“There is a very, very bad connection right now, between the judiciary and legislature,” said Reives, a lawyer by trade.
Republican leaders waved away concerns.
“I trust any judges who take the role to apply the law impartially to follow the law and to uphold the state constitution,” Speaker of the House Tim Moore said.
Republican lawmakers often argue that if Democrats don’t like their policies, then they have the opportunity to make their voices heard at the ballot box. Republicans have worked diligently this year to make changes in that arena, too.
Election powers
Republican lawmakers also passed — over Cooper’s veto — Senate Bill 749 this year, which overhauls the State Board of Elections and all 100 county elections boards by stripping the governor’s power to appoint a majority of the boards’ members.
Under the new law, the boards will be made up of an even number of Republicans and Democrats, all appointed by the legislature, changing from a board made of an odd number of members, with the majority coming from the governor’s political party.
GOP leaders said the law is needed to make sure that voters don't think elections are being manipulated by whichever party controls the governor's office.
Cooper is also suing lawmakers over that law, claiming that the legislation’s real intent is to cause tie votes on important issues such as where to staff early voting sites, which allegations of fraud or campaign finance violations to investigate, or even whether to certify election results. Those ties could be settled by Republican-controlled courts or the legislature, Cooper argues.
The bipartisan board concept has previously been rejected by voters. And the state’s Supreme Court ruled it unconstitutional several years ago, when the court had a majority of Democrats.
Republicans say an election board evenly divided between the two major parties is a common sense way to boost confidence in fair elections.
“It’s not hard to see how folks might think that there are problems in our elections, when the very entity that’s overseeing them has a partisan lean,” Rep. Destin Hall R-Cabarrus, said during a legislative debate over the bill last month.
GOP lawmakers are also facing legal challenges to a host of other new election laws — including tweaks to rules on early voting and same-day registration — that they say are needed to boost waning voter confidence in elections. Voter rights groups have sued, claiming some of the new rules are discriminatory against young people who tend to vote Democratic.
Even if Democratic interests prevail in those cases, their power at the polls might be diminished compared with previous elections.
Because Republicans control the legislature, the party is also in charge of drawing the lines that determine which congressional and legislative races people vote in. And the new Republican majority on the state Supreme Court recently overturned a previous decision on the redistricting process, ultimately giving GOP lawmakers more power to draw districts that, based on past election data, they know will elect Republicans.
New congressional districts approved last week would likely give Republicans at least 10 of the state’s 14 U.S. House seats — even if more than 50% of voters statewide cast their ballots for Democratic candidates. Likewise, Republicans would be expected to keep majorities in the legislature, and possibly retain their supermajorities — even if most voters statewide wanted Democrats. With supermajorities, legislative Republicans would retain the power to overturn a governor's vetoes on controversial bills for years to come.
Court fights are expected over redistricting, too. If those cases are filed in state courts, they could ultimately go before the GOP-majority Supreme Court, which this year said drawing maps for partisan gain — a process called gerrymandering — is constitutional. The court’s partisan split was made possible by the Republican legislature, which made judicial elections partisan seven years ago.
Republicans can point to voter support, though. Last year’s General Assembly elections were held under maps blessed by the state Supreme Court, which then had a Democratic majority. After the court struck down maps it said were overly partisan, the House of Representatives’ replacement map had bipartisan support and passed 115-5.
Republicans won 71 of 120 seats in the House, then got a veto-proof supermajority thanks to a Democrat who switched parties early in this year’s20797685 legislative session.
Gerrymandering doesn’t impact statewide votes, and Republicans went two-for-two in last year’s state Supreme Court races, which flipped control of the court.
“Why should we not assume this is what a majority of the state wants?” Republican consultant Larry Shaheen said. “Why should we assume that just possibly — just possibly — Republicans are doing the right thing. … Nobody put somebody in place against what the actual rules and regulations and laws were.”
Long history
With control of the state Supreme Court, new permission to gerrymander maps and just a few court decisions away from taking control of key board appointments, Republicans are on the cusp of accomplishing long-held goals.
North Carolina Democrats — who controlled state government for most of a century before Republicans won the General Assembly in 2010 — have been sounding alarms for a decade on some of these issues, decrying Republican policy decisions.
Often they made dire predictions, then Republicans scoffed as enacted tax cuts still yielded growing state revenues and the state was named the best in the nation for business two years in a row.
But now that shifts in power that had been blocked by the courts for years — including through a lawsuit that Republican Gov. Pat McCrory filed against the General Assembly in 2014 — stand a chance of going through under the new Supreme Court, a slowly heated pot will boil, Reives predicted.
“What they do is they get in and they change this policy here, they change a couple of sentences there, they change this idea over here,” he said. “And the next thing you know, when you piece them all together, you suddenly realize you’ve just given away a chunk of your power as a voting person.”
These issues rarely seem to move elections. Ferrel Guillory, who has taught journalism and public policy courses at UNC-Chapel Hill, said people tend to pay attention to crisis.
“A scandal often brings about change,” he said. “But Democracy is a day-to-day, month-to-month enterprise. It takes a lot of effort and a lot of explaining.”
Guillory said the Republican legislature’s moves are part of a long back-and-forth between North Carolina’s General Assembly and governor. North Carolina governors couldn’t even run for a second consecutive term until 1977, and North Carolina was the last state in the country to give its governor veto power, in 1996.
When a Republican won the lieutenant governor’s office in 1989, Democrats in the state Senate modified their chamber’s rules, stripping the lieutenant governor of his power to appoint committee members and assign bills. Those powers moved to the majority party’s lead senator, the president pro tempore.
“And that’s how we get a long term of [former state Sen.] Mark Basnight as Democratic leader, and now Phil Berger as Republican leader,” Guillory said. “Those kinds of long-term legislative barons … developed as a response as the governor’s power expanded.”
McCrory said in an interview last week that if Democrats ever win back control of the General Assembly, Republican lawmakers would ultimately regret some of the changes they’re pushing through.
“They’ll look back and go, ‘What did we just do?’” he said. “We put today’s politics ahead of our state constitution.”
For Smith, the Fayetteville State professor, one of the big questions is whether people get more involved than just voting every two years. Republicans see people checked out of politics “and they’re taking full advantage of it,” he said.
“What does Democracy mean?” Smith said. “Does it mean that we’re involved as the people?"
He added: "We have to find a way as a community to get together outside of the mechanics of the institutions and figure out … how we can increase democracy.”
