The Republican-controlled North Carolina legislature assembled for a hasty special session last week to alter the ballots voters will see in November — and Democrats protested that the changes were meant to tilt the outcome of the election.
Just weeks earlier, the legislature approved six constitutional amendments for the November ballot, including two that would give them unprecedented power over the executive and judicial branches of government. Legislators then realized that the three-member commission in charge of describing the amendments on the ballots was made up of two Democrats and one Republican. Rep. David Lewis, chair of the House Elections and Ethics Law Committee, requested a special session to address that, claiming without evidence that progressive groups were maneuvering to influence the commission.
During its one-day special session on July 24, the legislature passed a new law that puts it in charge of writing the ballot language for the amendments. Voters will now see only the legislature's descriptions, which critics argue are misleading. One amendment, for example, would give the legislature the power to control and appoint every state board or commission, but the ballot will state that the amendment merely "clarifies" appointment authority.
Republican legislators also used the session to pass yet another law making changes to the November election for the North Carolina Supreme Court. Two candidates had filed to challenge incumbent Republican Justice Barbara Jackson: civil rights lawyer Anita Earls*, a Democrat, and personal injury attorney Chris Anglin, who recently changed his affiliation from Democrat to Republican, leading to charges that he is running as a spoiler to draw votes away from Jackson. The new law says candidates for state Supreme Court cannot run as a member of a political party unless they have been members for at least 90 days. The state already has a similar requirement for other offices.
One Republican legislator made it clear that the law was about defeating Earls, whom he complained was "to the left of Hubert Humphrey," a liberal politician from Minnesota who served as vice president under Lyndon Johnson.
Democrats have said they will go to court to challenge the new laws — and perhaps the rushed and opaque process for passing them. The legislature didn't unveil the proposed laws until it convened for the special session on the afternoon of July 24 and passed them that evening. Legislators also changed the rules to allow them to override the governor's expected veto as soon as it happens.
Favoring an incumbent
Since voters elected a Democratic majority to the North Carolina Supreme Court in 2016, GOP legislators have passed a series of laws changing how Supreme Court elections are conducted. In December 2016, they even considered a court packing plan to allow the outgoing Republican governor to fill two new seats and maintain a Republican majority. Legislators backed down after a fierce public outcry.
Instead, the legislature passed a law making state Supreme Court races partisan. North Carolina is the first state in nearly a century to make such a change, with most states moving away from partisan judicial elections. North Carolina had already made lower-court races partisan in a series of laws passed between 2015 and 2017. Today, the only states that choose their supreme courts solely in partisan elections are Alabama, Louisiana, North Carolina, and Texas. (Illinois and Pennsylvania elect justices in partisan contests, but incumbents then run for re-election in uncontested "retention" elections.)
The North Carolina legislature also recently passed two laws that ensure the name of the Democratic Supreme Court candidate will appear at the very bottom of the ballot. One moved the election to the bottom of the ballot, and the other resulted in Earls being listed below the two Republican candidates.
And last year, legislators canceled this year's primary election for Supreme Court. That created the potential for a crowded race with multiple Republicans and Democrats — and for partisan mischief. Sure enough, last month a mysterious flyer from a secret-money group linked to Republican consultants was mailed to Democratic lawyers, recruiting them to run for Supreme Court. No Democrats took the bait.
Meanwhile, the North Carolina Republican Party is weighing in on the Supreme Court race with a website and mailers attacking Earls for her record as a civil rights lawyer. The racially charged ads criticize Earls for defending the Racial Justice Act, a landmark state law that allowed courts to overturn death sentences and impose life imprisonment instead if statistics showed racial bias in selecting the jury that imposed the death penalty. N.C. GOP Executive Director Dallas Woodhouse unveiled the website with a tweet warning that Earls on the bench would be a "danger to human life."
If Earls loses, one of the proposed constitutional amendments could open the door to a court-packing scheme by giving legislators power over determining which judges fill vacant seats — a power that currently belongs to the governor, a Democrat. If voters approve the amendment, the lame-duck legislature could create two new seats on the Supreme Court and quickly fill the new positions, creating a 5-4 Republican majority.
During discussion of the proposed amendment, a Democratic legislator asked his Republican colleagues to clarify whether court-packing was the motive. None spoke up.
Ruling like dictators
Editorial boards around North Carolina and other commentators blasted Republican legislators for their latest power grabs and for changing the rules with only hours' notice to the public and their Democratic colleagues.
The News & Observer condemned legislative leaders as "shameless about bending the law to partisan purposes." WRAL in Raleigh said the leaders "hastily concocted these amendments in secret, did all they could to make sure there was as little public notice and discussion as possible and worked hard to obscure any details on the impact of these amendments so citizens wouldn't be fully informed when they faced them in the voting booth." And Mark Joseph Stern of Slate described the recent laws as "the work of a party that's desperately trying to undermine equal access to the ballot in order to entrench itself in power."
The General Assembly's attempts to tilt the Supreme Court election and change the state constitution are part of the Republican majority's effort to solidify power. Extreme partisan gerrymandering has already created a veto-proof supermajority and insulated it from political accountability. This supermajority has now passed constitutional amendments giving the legislature more control over the other two branches of state government. Because legislators cannot gerrymander statewide elections for the judicial and executive branches, they are seeking to amend the constitution to give them control over those branches.
Observers have noted similarities between the actions of the North Carolina General Assembly and the Republican-controlled U.S. Senate, which is changing its own rules to confirm President Trump's mostly white and male judicial nominees at a record pace. Republicans in Washington appear to be borrowing from North Carolina Republicans' anti-democratic playbook for holding onto power.
* The author donated $200 to the Earls campaign in December 2017, before joining the Facing South staff.