The Midterms Could Permanently Change North Carolina Politics
Democrats are trying to claw back power—and Republicans are trying to change the constitution to make sure they don’t.
RALEIGH, N.C.—On an unseasonably cool, gray morning in August, Martin Warf was getting a cool reception in a Wake County courtroom. Warf’s task was to convince Judge Becky Holt that the Republican-led North Carolina General Assembly was within its rights to strip a candidate for the state supreme court of his Republican affiliation on the November ballot.
This was a tough task. Chris Anglin, a former Democrat, had switched his registration to the GOP in June and then filed to run for the supreme court. In the past, he would have had to be a registered Republican for 90 days and run in a primary, but the General Assembly had eliminated the primary and the 90-day requirement. Now, frustrated that a man they accused of being a Democratic plant was on the ballot, legislators had passed a law saying he couldn’t run as a Republican because he hadn’t been a member of the party long enough. Anglin sued.
Warf had two big challenges. First, the legislature was trying to make the change well after the filing period for the race had ended. Second, Warf himself—representing the legislature in a lawsuit over the primaries—had stood before a federal judge months before and told her there was no need for a minimum time as a registered party member before filing. But that was before Anglin got into the race.
After a short hearing that August morning, Holt announced she was staying the law. It was a win for Anglin, but it was a win for Democrats, too, since his presence on the ballot was likely to dilute the Republican vote and help the Democratic favorite, Anita Earls, in her quest to unseat Justice Barbara Jackson, a Republican. For the General Assembly’s Republicans, it was just the latest defeat in the judicial system. Warf would be back in court later that week defending more of the legislature’s controversial moves.
Since 2010, when Republicans captured both houses of the North Carolina legislature for the first time since 1870, they’ve worked to reshape the state as an exemplar of modern conservatism, from tax cuts to stricter voting laws to the infamous transgender-bathroom bill—a radical change for a state that once prided itself on moderation, overseen by a permanent centrist Democratic majority. The Democrat Roy Cooper’s narrow capture of the governor’s office in 2016 has slowed but not stopped the process, in large part because the GOP retains a supermajority in the legislature, and that allows it to override Cooper’s vetoes.
Even as Democrats are expected to pick up seats in the legislature, the November election could solidify Republican power in the state. Few forecasters expect Democrats to take back either chamber—crafty redistricting means Republicans have a durable majority—but they stand a good chance of ending the supermajority and, with it, the veto overrides. However, Republicans are taking steps that would strengthen the legislature’s authority and therefore their own grip on the state. Voters are being asked to decide on six state-constitutional amendments. Even after being scaled back substantially following court battles, these amendments could change the balance of power between the governor and the legislature for decades to come, placing and preserving more authority in Republican hands. That has made the lead-up to the midterm elections acrimonious even by recent standards in the Old North State.
Not since a 1970 rewrite of the state constitution have there been so many amendments on the ballot. In order, they proceed more or less from least to most controversial. The first guarantees the right to hunt and fish. The second is a victims’-rights provision, based on the “Marsy’s Law” codified by several other states. The third caps the state income tax at 7 percent, a reduction from the current 10 percent cap. The fourth requires a photo ID to vote, resurrecting a provision of a voting law that was struck down by federal courts. The fifth moves most of the power to fill state judicial vacancies from the governor to the legislature. The sixth reconfigures the state ethics and election board, changing the structure and taking appointment power away from the governor.
“These amendments are an example of the way good governance should work. You want to govern based on what the people want,” Senator Paul Newton, a Republican from Mount Pleasant, near Charlotte, told me. “Really, I think we’re trying to do our duty as legislators to let the public decide. They may reject all or some of these amendments. They may embrace all of them, but we’ll never know unless the public votes.”
Democrats see something far more nefarious at work.
“North Carolina Republicans put a number of misleading constitutional amendments on the ballot and tried to rig the supreme-court race because they are afraid of losing power this November and losing their supermajority in the legislature,” says Robert Howard, a spokesman for the North Carolina Democratic Party.
Judge Holt’s ruling against the General Assembly in the Anglin case was no great shock. Not only did it seem dubious that the legislature could change the rules after the ballot was set, but judges have repeatedly blocked legislation passed by Republican lawmakers over the past eight years. In fact, the courtroom seems to be one of the few places North Carolina Democrats can come out on top.
Cooper has managed to push through a few of his policy priorities, but lawmakers can—and often have—ignored him and forced his hand. Even before he took office, Republicans called a special session to reduce the governor’s powers. (Their actions drew lawsuits not only from Cooper but also from his predecessor, the Republican Pat McCrory.) Since then, they have repeatedly overridden his veto, including on the state budget and on changes to the judicial system. The small rump faction of Democrats in the legislature has become experienced at delivering remarks lamenting partisanship and majoritarian rule. They have plenty of time to hone those speeches, because they’re often left out of the legislative process.
That has left Democrats and progressive groups with only the courts as recourse. They haven’t won every battle, but Republicans have been stung by several prominent defeats. On October 16, a panel ruled that a prior expansion of the board of elections, also designed to dilute the governor’s control, was unconstitutional, though they stayed that ruling until after the election. Courts have repeatedly smacked down General Assembly–drawn voting districts, for both the state legislature and U.S. House, as unconstitutional efforts to help Republicans. A federal court struck down most of a 2013 law that required photo ID, cut early voting, and eliminated same-day voter registration.
The Republican cold streak in court is one possible explanation for why the General Assembly has been so devoted to changing the state’s judicial system—though it has been federal courts, rather than state courts, that have dealt the legislature its worst blows. But no matter lawmakers’ motivation, a broad swath of observers, from Democratic judges to a former Republican supreme-court justice, are unified in their horror.
“It’s a very methodical, systematic attack on the independence of the judiciary,” says Marcia Morey, a Democratic representative from Durham and a former chief district-court judge. “The sole intent is to have the Republican majority try to expand their power into the court system, electing more Republican judges.”
Over the course of several years, from 1996 to 2004, the legislature, then controlled by Democrats, changed elections at each level of the state system from partisan to nonpartisan. (This no doubt seemed like a safe move at a time when the Democratic Party still controlled the state.) After Democrats’ preferred candidate surprised a registered Republican in a 2016 state-supreme-court race, the GOP-led General Assembly reintroduced partisan elections for judgeships, bucking a national trend toward fewer partisan elections. Legislators say the change is positive, because it allows voters to have a better sense of the kind of judge they’re voting for.
That wasn’t all. The General Assembly also reduced the court of appeals by three seats, which Democrats charged was intended to prevent Cooper from making appointments that would create a Democratic majority on the court. (In a stunning rebuke of his own party, Judge Doug McCullough, a Republican, retired 36 days early, allowing Cooper to appoint his successor, in protest of the legislature’s move.) Judges were excluded from a pay raise that applied to other state workers. And the legislature curtailed judges’ discretion to waive court fees in criminal cases involving indigent defendants.
In the past year, the General Assembly also considered a broader shake-up of the system. Bills were proposed that would have redrawn judicial districts. As critics noted, one set of proposed boundaries closely mirrored the legislative districts that courts had thrown out as discriminatory, and a disproportionate number of African American judges were drawn into the same district, meaning one would be left without a seat. There was also a proposal to reduce judges’ terms from eight or four years, depending on the court, to two years. “Some would argue that we do have some activist judges, and the thought would be, if you’re going to act like a legislator, perhaps you should run like one,” Representative David Lewis, the chair of the rules committee, told WUNC.
Finally, the legislature considered a plan to change how judges are chosen. Judges at every level in North Carolina run for office, but when a vacancy occurs, the governor chooses a replacement; he or she then faces voters when the partial term expires. The General Assembly looked at other states’ systems and considered several different approaches, most of which would give legislators a greater role in the process. But the various changes were unpopular, and faced fierce criticism from across the political spectrum. Meanwhile, this year’s judicial primaries were canceled, on the basis that the General Assembly was considering changes to districts.
After the legislator who had been the public face of the judicial overhaul lost his GOP primary in May, the reorganization seemed to be on ice—until the end of the spring legislative session in June, when the General Assembly voted to place a constitutional amendment changing how vacancies are filled on the November ballot. Rather than allowing the governor to fill vacancies, a commission appointed by the chief justice of the state supreme court, the governor, and the General Assembly would recommend candidates to the General Assembly, which would send two finalists to the governor.
Because as many as one in five North Carolina judges first reaches the bench as a vacancy appointment, the stakes for the judiciary are high. Republicans note that good-government reformers have been calling for merit selection in judgeships for years. They also point to what they say are past abuses, such as when outgoing Democratic Governor Bev Perdue appointed three close aides, all without judicial experience, to the bench. (This is something you hear a lot in North Carolina lately: Whenever Republicans are accused of abusing their power, they point to abuses by Democrats during their long stint in control. The charge is as completely accurate—Democrats’ extensive corruption is one reason voters turned them out in favor of the GOP—as it is irrelevant, since saying the other guys abused their power doesn’t justify abuse of power.)
But would the new system really solve the problem of politicizing the bench, or just shift it? No other state structures its judicial-selection system the way North Carolina would, so it’s hard to find a comparison. If the amendment is approved, judges will still eventually end up before voters, rather than in a pure merit system. And judges will still be appointed by politicians—just by a different set. But whereas the governor is elected statewide and therefore accountable to all voters, the legislature is elected locally. Since the General Assembly is controlled by Republicans and, because of both favorable districting and the state’s urban-rural divide, most likely will be for years to come, there’s a good chance that every candidate put to the governor, whether she is a Democrat or a Republican, will be a GOP pick.
“This gives them all political power,” says Jeff Jackson, a Democratic state senator from Charlotte. “If they lose the next five gubernatorial elections, the reins stay in their hands.”
There has also been widespread speculation in Raleigh for months that if the amendment passes, Republicans might try to pack courts to dilute or reverse Democratic advantages, just as they shrank the court of appeals. (Newton says he knows of no such plans.) Even without that, many observers worry that having the legislature involved in the process will taint the separation of powers between the branches of government.
“The General Assembly is passing the laws to be reviewed by the judges,” says John Wester, a Republican and a past president of the North Carolina Bar Association. “If the General Assembly chooses the judges, it’s hard to see how the public would have confidence in a judiciary chosen by those whose laws they are reviewing.”
A 2017 white paper from the Brennan Center for Justice at the New York University School of Law concluded that while there is limited comparison, available evidence “suggests that legislative appointments are unlikely to alleviate the problems associated with judicial elections, and may further undermine judicial independence and integrity in critical ways.”
Already, the tampering has come back to bite the General Assembly in at least one way. Before legislators canceled the judicial primaries earlier this year, candidates were required to have been registered with a party for 90 days before they filed for election. Without primaries to winnow out candidates, the onus was on the parties to coalesce around a single candidate and clear the field. This invited mischief. Democratic lawyers across the state received a postcard trying to recruit them to run for office; the cards were sent by a Republican operative.
No Democrat decided to challenge Anita Earls, a longtime crusading progressive attorney who has led some of the more successful charges against the GOP’s moves from the Southern Coalition for Social Justice, which she founded. But Chris Anglin decided to run on the GOP line, much to the consternation of Republicans who are concerned he could dilute Justice Jackson’s vote and give Democrats a 5–2 edge on the court. Republicans howled that Anglin, an attorney in Raleigh with no judicial experience, was a fake candidate placed on the ballot by Democrats. It didn’t help much that his campaign consultant, Perry Woods, works for Democrats, nor that his attorney in challenging the General Assembly was John Burns, a prominent Raleigh Democrat and county commissioner.
The governor’s office and the North Carolina Democratic Party both denied any involvement in Anglin’s campaign and his decision to run. Anglin also told me he is not a Democratic plant and is running on his convictions. He noted that although he switched his registration to Republican in June, he’d been a registered Democrat only since 2012. He argues he’s defending traditional GOP values, but his critique does sound a lot like the Democratic critique of the General Assembly.
“I decided to run for supreme court because I wanted to give Republican voters an alternative candidate so that they could vote for someone who believes in separation of powers, and also that the judiciary should be a coequal and separate branch of government from the legislature,” he told me. “I don’t think the current incumbent encompasses those traditional Republican values that have become lost in the state.”
It’s hard to imagine there’s a large bloc of Republicans eager for a justice who toes the Democratic line. But even if just a few pull the lever for him, it could give Earls a leg up. Recent polls show Earls ahead of both Jackson and Anglin, with many voters undecided.
A couple of hours after Anglin’s hearing at the Wake County Courthouse, and a few blocks north, a motley collection of ex-governors was assembling at the Old State Capitol for a press conference. There was Jim Hunt, the venerable Democrat who is the longest-serving governor in state history; Jim Martin, the only two-term Republican governor in state history; Mike Easley, a Democrat convicted of a felony after leaving office for a baroque array of corruption scandals; Perdue; and Pat McCrory, the Republican who succeeded Perdue after a bitter campaign in 2012, and then lost an even bitterer campaign for reelection in 2016.
The group shared an uneasy jolliness—part collegiality born out of the shared privilege of running the state, part the half-natural, half-cultivated backslapping bonhomie of longtime pols. (Their entrance was slow, as each governor stopped to greet his or her favorite graying member of the press corps.) They also had a strange common purpose: opposing two of the six amendments on the November ballot.
“Never have five of us gotten together and stuck it to you on the same issue,” Easley quipped. The gathering was indeed unprecedented. But for all the jokes, the governors were deadly serious about the amendments.
“This is really about whether a few politicians in the legislature will increase their power at the expense of the people of North Carolina,” Hunt said in his distinguished drawl.
Of course the Democrats didn’t like the amendments. But neither did the Republicans.
“This is not about partisan politics. It’s about power politics, and it must be stopped,” Martin said. “It’s embarrassing to me, after a career devoted to building a healthier, more competitive two-party system in our state, that it’s a legislature controlled by my Republican Party that has hatched this scheme.”
But it was McCrory who was most fired up. He sounded almost like he was in campaign mode—there’s speculation he might try for a rematch with Cooper in 2020—but he was taking on his fellow Republicans. His feud with the lawmakers has roots: The legislature had often pushed him around as governor, which helped sink his reelection. He then joined with Martin and Hunt to file a successful suit against the General Assembly’s December 2016 “legislative coup.”
“Now that I’m out of office, I’m proud to join these other governors in continuing to fight. Not doing so would be pure political hypocrisy on my part,” he said. Then, addressing the legislators, he added: “If any of you want to take on the responsibilities of the governor, have the courage to run for it and win.”
Republican lawmakers dismiss the gubernatorial pushback, saying that beneath the veneer of bipartisanship, it’s really just the governors trying to defend executive power. The General Assembly is simply reasserting its authority, they say. The matter is not so simple as just a tug of war between the executive branch and the legislature. The Koch brothers–backed Americans for Prosperity has also announced its opposition to the judicial-appointments amendment.
But it is true that North Carolina has long been skeptical of executive power. Since the state’s first post–Revolutionary War constitution, which reflected early American fears of a strong ruler, the Old North State has limited the governor’s capabilities.
“We were trying to get away from a king … Anybody who’s a student of North Carolina history knows that the legislature was vested with the power in this state,” Newton says. In its post–Civil War constitution, judicial appointment power was given to the governor. But Democrats managed to overturn Reconstruction reforms at the convention of 1875 and return power to the legislature.
“There’s been a tug of war ever since,” Newton says. Indeed, the governor gained the veto only in 1996; North Carolina was the last state to give its chief executive that power. “This is not a here-and-now moment in history so much as it is a playing out of a long period of struggle between the governor and the legislature. I suspect it will continue long after we’ve gone.”
Over time, voters have opted to give the governor gradually more power, and they have the right to give it back to the legislature. Whether doing so is a good idea is a different question. H. Jefferson Powell, a professor at Duke Law School and a former official in the state and federal justice departments, has pushed back on some of the more panicked Democratic reactions to the amendments, viewing them as alarmist. Still, he told me there’s a strong small-c conservative case against them.
“The constitution is not a place to put talking points to the voter,” he says. “There’s no reason to believe the executive is too strong now. Don’t fix things that you don’t know are broken.”
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Powell noted that the first three amendments—on hunting and fishing, victims’ rights, and income tax—seem designed largely to drive up turnout among Republican voters. But that doesn’t mean they won’t have real and lasting effects in the state. Take the income-tax question. The tax rate is currently below the proposed 7 percent bar, but other states that placed constitutional caps on the tax rate have sometimes found themselves frustrated that lawmakers are handcuffed from raising taxes when it’s useful to do so. There’s also no obvious urgent reason to reconfigure the board of elections, as another of the amendments would do—except that the old system gives majority control of the board to the governor’s party, and he is a Democrat. Republicans argue that a bipartisan board, with an equal number of members from each party, would be more equitable—though expanding the board from five members to eight also risks 4–4 deadlocks.
The photo-ID matter is even more fraught. North Carolina has been embroiled in a long fight over voting rights. Many states with Republican leadership have pursued stricter voting laws, but North Carolina has been especially aggressive. Almost immediately after the U.S. Supreme Court’s 2013 Shelby County v. Holder decision, which loosened federal restrictions on jurisdictions with a history of racial discrimination, the General Assembly pushed through a law widely described as the nation’s strictest. Advocates say that such laws are necessary to prevent voter fraud, but there’s no evidence that widespread fraud exists, nor that it sways elections. There is, however, evidence that such measures drive down turnout among minorities and other populations that tend to vote Democratic.
A federal appeals court ruled in 2016 that much of the law was unconstitutional; it found that suppressing the black vote was not a side effect but the very point. “In what comes as close to a smoking gun as we are likely to see in modern times, the State’s very justification for a challenged statute hinges explicitly on race—specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise,” Judge Diana Gribbon Motz wrote.
Even without that law in place, the General Assembly has found ways to tinker with voting. Courts have also found that the districts it drew in 2011 for both U.S. House and state legislative races were racial gerrymanders. Twice this year, a court found that the replacement districts are unconstitutional partisan gerrymanders. (The U.S. Supreme Court will likely make the final decision there, and the court seems skeptical.) Republicans believe that with several states having recently passed voter-ID laws, and with the Supreme Court now more conservative, this is the chance to try again.
“We don’t want to disenfranchise anyone,” Newton says. “I’m in favor of making every effort we need to make sure legitimate voters have access to the polls. We should make that happen, and we will make that happen, but we need to make sure every voter is, in fact, permitted to vote.”
Meanwhile, the fate of the amendments themselves might depend partly on a law passed this summer that changes early-voting rules, and has drawn criticism from local officials of both parties.
The process by which the amendments came about raises its own questions. They were introduced and approved in just two weeks, and Democrats complained that they were not consulted. Newton told me that a longer process was unnecessary, since so many of the issues had been circulating in Raleigh for years, and since the legislature had studied judicial reorganization in depth.
But Gerry Cohen, a Democratic lawyer who spent years working as a lawyer for the legislature, says that timeline was highly unusual.
“I drafted, like, 30 amendments over 37 years. Some of them laid out there for months for people to review them. These were reviewed by nobody,” Cohen says. “The last major rewrite [of the state constitution] was in the 1969 session. They had a two-year state-bar commission.”
In some cases, voters will have to decide on amendments without knowing exactly what they will mean in practice. The actual legislation implementing them won’t be written until after the vote, meaning that voters must, as Nancy Pelosi infamously said of the Affordable Care Act, pass the bill so they can find out what is in it. For example, it’s unclear what forms of ID would be acceptable for voting, which has been a contentious topic in other states. Newton says the process makes sense, since the General Assembly wouldn’t want to write the bills until it knows whether they’ll actually be relevant. But according to Cohen, this is a break with the past as well: By his calculation, 13 of the past 14 constitutional amendments that required implementing legislation had it passed in the same session.
If the amendments do pass, legislators will move fast. They’re scheduled to come into session on November 27—the very same day that election results are certified. Cohen and other Democrats speculate that Republicans are racing to beat the clock: If they lose their supermajority, they’ll need to pass any implementing legislation, get it vetoed, and override Cooper’s veto by December 20, or else the matter will get kicked to the incoming General Assembly.
Already, the hasty process has caused some hiccups. First, Republican leaders realized that, thanks to a law the General Assembly passed in 2016, the ballot captions for the amendments were set to be written by a committee controlled by Democrats. Worried that the committee would write captions that might persuade voters not to support the amendments, the General Assembly called a special session to strip the committee of that responsibility. (It was during the same special session that the legislature passed the bill targeting Anglin. Democrats claimed the session was itself unconstitutional.)
Instead, Republicans wrote politically slanted captions of their own. Cooper and other groups sued, saying the descriptions were misleading. A panel of judges agreed with them, throwing the judicial-vacancies and elections-board amendments off the ballot. The legislature then returned once more, writing new language for the two amendments and in the process significantly reducing the scope of the elections-board amendment; as written originally, it would have given the legislature control over dozens of additional appointments to state boards and commissions, but the new version applies only to the elections board. Further court challenges to the amendments have fallen short, though Democrats still say that they’re misleading and designed to deceive voters.
Despite the chaos that has attended the process, there’s a good chance that most or all of the amendments will pass. Rather than trying to differentiate among the provisions, Democrats have adopted the slogan “Nix All Six” in the lead-up to the vote. But the hunting-rights and victim’s-rights measures are likely to be popular. An October poll from Spectrum News found majority support for every amendment except the judicial-vacancies matter, though there are large numbers of undecideds for most of them, and it’s unclear how informed voters are about the amendments in general. National politics, Hurricane Florence, and a couple of contentious U.S. House elections have garnered a great deal of attention.
“It requires you to focus on six things,” Jeff Jackson, the Democratic senator, says. “It’s a real challenge 90 days from the election.”
Well versed or not, voters will make their decisions on November 6—both about the amendments themselves and about the Republican supermajority in the General Assembly. Those choices will set the ground rules for the next chapter of North Carolina’s power struggle, determining just how much power to give the Republican-led legislature. Whatever the results are, however, they are unlikely to end the Old North State’s turbulent decade.