North Carolina Democrats are gearing up for a legal fight.
State Republicans passed what Democrats are calling a power grab last week: In a bill to inject $227 million into a hurricane relief fund, they also shifted the governor’s power to appoint members to the State Board of Elections to state auditor, prohibited the attorney general from taking legal positions contrary to the General Assembly and decreased how much time counties have to count ballots.
The Republican state legislature voted to override Democratic Gov. Roy Cooper’s veto of the bill last week.
“My understanding is that litigation has been filed, and I believe there is more to come,” Attorney General-elect Jeff Jackson told NOTUS. “I’m going to see what the current attorney general decides to do with respect to these changes, then I’ll talk to the staff as soon as I take over to make some decisions about what to do.”
Cooper and Democratic Gov.-elect Josh Stein filed a lawsuit last week against Republican state House Speaker Tim Moore and state Senate President Pro Tempore Phil Berger in the Wake County Superior Court. It focuses on a part of the bill that would allow the state legislature to override the governor’s pick for State Highway Patrol, which Democrats argue unconstitutionally violates the separation of powers. The governor is given control over public safety ultimately, they argued.
“It’s fundamental to our constitution that the legislature can not both make the laws and then choose the leaders who enforce them,” Cooper said in a statement announcing the lawsuit last Thursday. “Breaking the executive branch chain of command in law enforcement or any other executive branch agency is unconstitutional and it weakens our ability to respond to emergencies and keep the public safe.”
How the courts decide will not only answer immediate questions about how the state’s constitution separates powers but what the future for Democrats looks like in a state where Republicans continue to flex their legislative advantages.
North Carolina Republicans either defended the move or had nothing to say.
“For several years, we’ve been concerned that the Board of Elections is under the sole discretion of the governor,” said Rep. Chuck Edwards, whose district covers the most affected areas of Hurricane Helene. “Clearly for the past eight years, that has been used as a political weapon. We really needed a bipartisan solution, and this is the next best effort that I’ve seen to that.”
Rep. Dan Bishop, who lost the race for attorney general to Jackson this year, and Rep. David Rouzer said they hadn’t heard of the bill’s changes to the role.
“Don’t have any comment on it,” Bishop said. “Other than knowing that there was an override, I really don’t know the details of it.”
Restrictions on the attorney general’s legal stance present a troublesome challenge for Democrats in the role. While Democrats were able to claw back seats this election, ultimately stripping state Republicans of their veto override power, Republicans still control North Carolina’s General Assembly.
When Planned Parenthood and other abortion rights groups filed lawsuits against North Carolina Republicans’ ban on most abortions after 12 weeks of pregnancy, Stein, who was attorney general at the time, stated that his office would not defend parts of the law in court. Jackson may not have this ability.
“The attorney general in North Carolina is supposed to represent the legislature and what their policies are,” GOP strategist Wayne King said, defending the push. “The General Assembly probably thought Jackson would do what we’ve seen with Stein. There are consequences to elections. I think it’s very smart.”
Strategists and legal experts watching say the battle to keep this law enacted could be long and hard fought.
“It raises very interesting questions that I don’t think our courts have addressed in the constitution,” former Republican North Carolina Supreme Court Justice Bob Orr told NOTUS. “Is the attorney general completely limited by what the general assembly says the attorney general can do? Or does the executive have some voice in it? Does the attorney general have inherent powers that dictate this? It will be a field day for the lawyers and the courts.”
Reps. Kathy Manning and Wiley Nickel, both exiting Congress after this session due to Republican-led redistricting, argued that Republicans are increasingly thwarting the will of voters.
“The Republicans’ appalling power grab started with them destroying three congressional seats and making it impossible for us to win,” Manning told NOTUS. “This year, we elected a Democrat for governor, lieutenant governor, secretary of state, superintendent of schools, attorney general, Supreme Court justice. … It’s clear what voters in North Carolina feel.”
“Another absolutely cynical and outrageous power grab to punish voters for voting for Democrats,” Nickel said.
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Calen Razor is a NOTUS reporter and an Allbritton Journalism Institute fellow.