UPDATE, December 20, 10:25 a.m.: North Carolina Gov. Pat McCrory (R) on Tuesday signed HB 17, the GOP-backed measure that dramatically reduces the number of appointees for the incoming Democratic governor, who beat McCrory in November.
Controversial legislation designed to strip power from Roy Cooper, North Carolina’s incoming Democratic governor, is inviting a constitutional challenge, according to attorneys and legal experts—including Cooper.
Outgoing North Carolina Gov. Pat McCrory (R), who lost his re-election bid by about 10,000 votes, has begun signing some of the dozen-plus bills that passed last week in a special session called by the GOP-dominated general assembly, despite protests and outcry in Raleigh.
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SB 4, which McCrory signed on Friday, would replace the State Board of Elections with the state’s eight-member Ethics Commission, ostensibly making elections oversight bipartisan.
Traditionally, the governor’s political party would control a three-two majority of the five-member elections board. Under the new legislation, the state board would expand to eight members, with half the seats chosen by the governor, and the remaining four chosen by state lawmakers, the News & Observer reported.
The new legislation requires the commission’s chairperson to alternate annually between parties, with the Democrats holding power in odd-numbered years and the Republicans in even-numbered years. This means Republicans would hold power during election years, Daily Kos noted.
The measure would also require political party designations for state supreme court candidates and allow the Republican-controlled State Court of Appeals to “hear appeals from trial court rulings rather than in three-judge panels,” as the News & Observer reported. This would add an extra step before appeals are heard by the Democratic-majority state supreme court.
Meanwhile, HB 17 would remove Cooper’s authority to appoint members to the boards of trustees in the University of North Carolina (UNC) system and require his cabinet appointments to be approved by the GOP-held state senate. The bill would institute an 80 percent reduction in the number of state government employees Cooper can hire. While McCrory had control over more than 1,500 positions, Cooper would only have authority over 300.
HB 17 would also give more authority over education oversight to the state’s superintendent of public instruction, which will be held by a Republican who defeated a Democratic incumbent, the News and Observer reported.
“I think there’s likely going to be a constitutional challenge [to the legislation]. That’s a separate issue from whether it’s going to succeed or not,” Michael J. Gerhardt, director of the Program in Law and Government at the UNC School of Law, said in a phone interview with Rewire.
“This legislative move is designed to essentially eviscerate the governorship … and that’s a violation of separation of power,” Gerhardt said. “I think any kind of neutral look at this should upset anybody. If you switch the party around, it’s still upsetting.”
Gerhardt contends that the ball “will eventually end up back in Roy Cooper’s court” and noted the incoming governor’s warning that he would take legal action.
Cooper in a press conference held Thursday urged lawmakers to go home and argued that major government changes should not be “pushed through in the dark of night.”
“If I believe that laws passed by the legislature hurt working families and are unconstitutional, they will see me in court,” Cooper, an alumnus of UNC’s law school and the state attorney general since 2001, said during the news event.
Rick Hasen, law professor at the University of California, Irvine, hinted at legal battles to come in the state concerning the Voting Rights Act of 1965 and other “federal constitutional challenges.” Hasen argued in a blog post that the North Carolina legislature would “potentially be diluting minority voting power and making minority voters worse off” as Cooper is set to take office.
Gerhardt said these restrictions on gubernatorial power were not preceded by any “groundswell of long deliberation of whether the governor had powers that ought to be constricted even more.”
“I think this is what it appears to be: It’s just a transparent partisan payback against the incoming governor,” Gerhardt said.
The North Carolina NAACP, North Carolina Voters for Clean Elections, and Progress NC are among the groups that protested the special legislation session, saying it was an “attempt to use disaster relief and the pain of thousands of North Carolinians to push through measures that strip Governor-elect Roy Cooper of executive powers.”
Protesters associated with the NAACP later interrupted the house session with a series of chants, according to a News & Observer account.
Mitch Kokai of the conservative John Locke Foundation has panned the GOP’s eleventh-hour legislative efforts, as have former North Carolina governors Jim Martin and Jim Hunt, a Republican and a Democrat, respectively.
Rep. Darren Jackson (D-Knightdale) has contested the legislative session, alleging that it is unconstitutional because GOP lawmakers called the session on Wednesday, despite plans being in process since Monday. Jackson argued that the state constitution said lawmakers should convene “upon receipt” of the legislators’ signatures, which were collected on Monday and Tuesday, not Wednesday.
David Lewis (R-Dunn), chairperson of the state’s House Rules Committee, disagreed with Jackson’s account and insisted that the speaker and the lieutenant governor received the required signatures on Wednesday.