Wisconsin, Limiting Governor, Borrows a Page From North Carolina’s Book
Posted December 5, 2018 7:45 p.m. EST
By passing legislation to strip power from the incoming Democratic governor and attorney general, Wisconsin Republicans followed the lead of their counterparts in North Carolina — and, as in North Carolina, they are likely to face major legal challenges.
Two years ago, after Roy Cooper, a Democrat, unseated the Republican governor, Pat McCrory, GOP supermajorities in the North Carolina General Assembly passed sweeping restrictions on Cooper’s power. Among other things, they expanded the state elections board and split it evenly between Democrats and Republicans so Cooper could not appoint a Democratic majority; slashed the number of employees who served at the governor’s pleasure; and limited Cooper’s authority to select members for numerous state boards, including those that regulate industry and finance.
It was a move that tested legal limits and prompted outrage from Democrats. It also set a precedent that could pave the way for similar actions in other states — even though courts have ruled that much of the North Carolina package violates the state constitution.
In Wisconsin, the effort played out in a rancorous all-night debate Wednesday at the Statehouse, where, as protesters chanted in anger, Republican lawmakers pushed through bills limiting the power of Tony Evers, the incoming Democratic governor, and Attorney General-elect Josh Kaul.
Democrats there may follow the lead of those in North Carolina with lawsuits that could cast uncertainty over the exercise of power for several years.
The legal issue has to do with the separation of powers, said Allison Riggs, senior attorney at the Southern Coalition for Social Justice, a nonprofit dedicated to protecting rights for minorities.
“The legislature gets to make the laws, but when the legislature starts to try and undermine the ability of the governor to effectuate and implement the laws, they’re getting out of their lane,” Riggs said. If, for example, “control of the Board of Elections is taken away from him and instead is more vested in the legislature,” she added, “then the legislature becomes the one who’s trying to implement the laws, and that’s an executive duty.”
North Carolina’s courts have almost universally agreed with that argument. But the legal battles are still dragging on, largely because the legislature has responded to many of the judicial rebukes by passing slightly different versions of the same measure, which are then litigated all over again. In the meantime, the state operates under many of the challenged rules, and a cloud of uncertainty.
The effects of that uncertainty have been on display in the past week, as reports of election fraud rocked the state’s 9th Congressional District. The elections board, which is investigating, has the authority to order a new election if it believes irregularities “taint the results of the entire election and cast doubt on its fairness.” But the board itself is in turmoil because a state judge recently ruled that its composition, as established by Republican changes in 2016, unconstitutionally limited Cooper’s power. By court order, the board is set to be dissolved next week, although a judge could extend that deadline.
This week, a Superior Court judge in North Carolina struck down another part of the legislative changes, which had limited Cooper’s ability to appoint members of the state’s unemployment compensation board.
Rulings in Wisconsin might or might not be the same. “Most litigation on this kind of stuff comes down to what the state constitutions may say about the ability of the legislatures to take powers away from the governor,” said Gerry Cohen, a former lawyer for the North Carolina General Assembly. “Partly it depends on how the constitution allocates the powers.”
The cases in North Carolina have been litigated in state courts, under the North Carolina Constitution. When it comes to the separation of powers, most state constitutions contain similar language; the main difference in Wisconsin could be judges’ interpretation of that language.
Court rulings often depend on the composition of the court. The North Carolina Supreme Court, whose members are elected in statewide races, has a Democratic majority. The Wisconsin Supreme Court, while officially nonpartisan, has a 4-3 conservative majority.
Still, the outcomes in North Carolina do not bode particularly well for Republicans elsewhere who want to replicate its model. The litigation has cost taxpayers millions of dollars, and Democrats in the state — many of them furious at the legislature’s actions — have broken Republicans’ supermajorities in the General Assembly and increased their own state Supreme Court majority.
“It costs a ton of money, and it really distracts from doing anything effective for the people of the state,” Riggs said. “It’s sad to me that folks in Wisconsin look at North Carolina and say: ‘We should do that too. It ended so well.’ It really didn’t.”