'To the winner go the spoils': NC lawmakers to finalize law stripping power from Democratic officials
Actions taken at the state legislature in the next few days could have major ramifications for the future of state government, as Republican lawmakers seek to use the last gasp of their guaranteed veto-proof supermajority to push through new state constitutional amendments and substantial changes to the balance of power within state government.
Supporters say the changes will help improve state government. Critics say some of the changes are unconstitutional. Some say the changes could even harm the state government’s ability to pay its bills.
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The state House of Representatives is expected to finalize three new laws this week. All are focused on conservative priorities that Republicans would have a more difficult time passing if they lose their legislative supermajority, which will happen starting in January unless a recount or other legal challenges change the results in a Granville County district that Democrats appear to have flipped in this year’s elections.
Two proposed constitutional amendments are on the docket. So is Senate Bill 382, a wide-ranging grab bag of changes largely focused on shifting the balance of power in the state’s executive and judicial branches. Democratic Gov. Roy Cooper vetoed it, but on Monday the Senate overrode his veto. If the House does the same when it returns to session this week, the changes will become law.
“I do believe a lot of it is unconstitutional,” Cooper told reporters after the Senate override. “I mean, clearly unconstitutional.”
The bill’s main targets are the governor and attorney general, with multiple provisions aimed at either shifting duties and powers to offices controlled by Republicans, or eliminating those powers entirely. In the race for governor this year Democrat Josh Stein defeated Republican challenger Mark Robinson by 15 percentage points, the most lopsided race for governor in nearly half a century. For attorney general, Democrat Jeff Jackson defeated Republican Dan Bishop by 3 points, the widest margin of victory for that office in a decade.
“A lame-duck legislature votes to take power away from those people who were just elected — overwhelmingly? That's wrong,” Cooper said.
North Carolina Republican Party spokesman Matt Mercer defended the changes as necessary to prevent the repeat of past abuses that he blamed on Cooper and Stein, during the past eight years when they’ve been governor and attorney general.
“You’ve had these issues,” Mercer said during the latest episode of WRAL’s “On The Record,” which first aired Saturday. “Gov. Roy Cooper has issued numerous executive orders, more than any governor in history, trying to circumvent power from the legislature. So I think you’re looking at the reorganization [of state government] — it’s really the right time to do that.”
Beyond taking power from Stein and Jackson, several other changes in the bill target incoming Superintendent of Public Instruction Mo Green and Lt. Gov.-elect Rachel Hunt, who are also Democrats.
The changes are little more than rejections of the popular will of North Carolina voters by a party upset that their candidates lost, said Rep. Tim Longest, D-Wake.
“When folks elect a governor, they expect that person to be able to exercise executive authority,” he said on “On the Record.”
Supreme Court could decide
When the bill originally passed the state House, three Republicans broke party ranks to join all Democrats in voting against it.
If just one of the three continues his opposition, or skips the veto override, Cooper’s veto could stand, provided all Democrats oppose the override attempt. Republican leaders have said they expect those GOP holdouts — Reps. Mark Pless, Mike Clampitt and Karl Gillespie — to vote with the rest of the party on the override.
If that happens and the bill becomes law, the changes would almost certainly be decided in court.
The bill also proposes a number of other changes aimed at the judicial branch — eliminating seats held by two Democratic judges in Wake and Forsyth counties, creating new seats for judges who would be hand-picked by Republican legislative leaders instead of elected, restricting the governor’s power to fill judicial vacancies and giving Republican Supreme Court Chief Justice Paul Newby more individual control over parts of the state judicial branch.
Lawsuits over controversial pieces of legislation are an increasingly common theme of North Carolina politics. Cooper has sued state lawmakers repeatedly over a variety of laws stripping power from the governor’s office that lawmakers began passing after he unseated Republican Pat McCrory in 2016. Cooper won some of those lawsuits but lost others. Several more are still pending and will soon be inherited by Stein.
McCrory last month joined Cooper in criticizing one particular piece of the newest bill as misguided and unconstitutional: Taking away the governor’s power over the State Board of Elections and giving that power to the state auditor instead.
“North Carolinians, including me, elected the state auditor to investigate waste, fraud, and abuse in state government — not appoint the Board of Elections," McCrory said. "The North Carolina Constitution assigns appointment powers of this nature to the governor, not the state auditor.”
That change and others in the bill could ultimately be decided by the North Carolina Supreme Court. The court’s seven justices are elected, and in recent years the court has tended to rule along party lines in politically contentious cases. Most recently, that has meant the court’s 5-2 Republican majority ruling in favor of GOP lawmakers, citing legal theories that say the legislature should have wide latitude to act with limited court oversight.
Political scientist Michael Bitzer of Catawba College said that while there are checks and balances on all three branches of government in the North Carolina constitution, the legislature has indeed long enjoyed the most power as a “first among equals.” That dates back to the way North Carolina’s colonial-era government was set up, he said, and carries on into modern day.
So if the bill taking power from Stein, Jackson and the others does become law, it could be an uphill battle for Democrats to get it struck down as unconstitutional.
“As the old saying goes, ‘To the political winner goes the spoils,” Bitzer told WRAL. “The party with legislative power can giveth, taketh, and redistribute that power from the various executive offices.”
But that’s not to say lawsuits won’t have legs to stand on. Another political scientist, Meredith College’s David McLennan, pointed to the recent history of the legislature losing multiple attempts to strip the governor’s power over the Board of Elections — a goal this bill continues to seek, using a different strategy from the past efforts that were ruled unconstitutional.
He pointed to a part of the state constitution that says: “The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.”
“I would assume that there will be legal challenges to the legislature’s attempt to remove more powers from the governor, AG, and superintendent based on this statement,” McLennan said.
Amendments also proposed
Beyond the wide-ranging shift in state powers that will become law if the House has the votes this week, two other votes are expected that won’t have immediate impact but could lead to significant changes in the future.
The House is expected to also approve two constitutional amendment proposals to be placed on the ballot in 2026 — aimed at further cementing voter photo identification rules and limiting the ability of state lawmakers in the future to raise taxes on people or corporations.
Similar amendments passed in 2018, under circumstances now being challenged in court. Passing new versions of them would serve as insurance to protect the changes, in case the legislature loses that lawsuit.
The new versions that could be on the 2026 ballot are each also more restrictive than the versions voters approved in 2018. The voter ID amendment would make it harder for courts or future legislatures to undo the rule requiring people who vote by mail to also mail in a copy of their identification cards. The tax amendment would lower the state’s maximum possible income tax rate from 7% to 5%.
Taxes are below 5% already, so that wouldn’t create any new tax cuts. Republicans say lower taxes have helped spur the state’s economic boom of the past decade, and they’ve approved plans to continue cutting taxes — including lowering the corporate tax rate to 0% by 2030.
But some fear a future recession — or continued population growth — could leave North Carolina unable to pay its bills with such a low tax rate. Many Democrats have called for raising taxes on wealthy individuals and on corporations.
By passing this amendment voters could limit how high taxes would be able to go, on people or on businesses, in the future.
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