In an election that left Democrats with little to crow about, North Carolina offered a handful of bright spots. Mike Morgan, a veteran jurist who in 1964 helped desegregate his local public-school system, flipped the partisan balance of the state Supreme Court by unseating a Republican incumbent. And Attorney General Roy Cooper, who took firm stands against voter suppression and anti-LGBT discrimination, racked up a knife’s-edge lead in the still-undeclared gubernatorial race. With some county results still contested, Cooper is currently 6,470 votes ahead of Republican Governor Pat McCrory, out of almost 4.6 million cast.
Now, there’s talk among Republicans of restoring their majority on the Supreme Court by legislative fiat—and concerns that lawmakers might try to intervene in the governor's race, too.
Two days after Morgan’s victory, the John Locke Foundation, a Raleigh think tank that serves as a policy shop for the legislature’s GOP supermajority, floated the idea that lawmakers could add two Supreme Court seats to (as the Foundation put it) “blunt the election’s impact.” Morgan’s inauguration will give Democrats a 4-3 majority on a court that is nominally nonpartisan. But, in a blog post, Locke political analyst Mitch Kokai noted that the state constitution permits lawmakers to add two more seats, which they could do in December by calling a special session to respond to the damage caused by Hurricane Matthew. McCrory will still be governor next month, so he could theoretically appoint two Republican judges, giving the GOP a 5-4 advantage.
The term for this is “court packing.” President Franklin D. Roosevelt tried to do it, unsuccessfully, with the U.S. Supreme Court in the 1930s after it blocked some of his New Deal measures. This year, Republicans in Arizona and Georgia enlarged their own high courts by two seats apiece, moves that Democrats described as partisan power grabs. A reverse variation on court packing—the elimination of two Republican-held seats on the Michigan’s Supreme Court—was derailed in 2008 after a slideshow subtitled “Changing the rules of politics in Michigan to help Democrats” appeared on a union web site.
The renewed drive for court packing is “utterly bipartisan,” says William Raftery, an analyst with National Center for State Courts. He notes a “dramatic uptick” over the past decade in efforts to change the compositions of state high courts, which should surprise no one in this era of deep partisan polarization.
Kokai, the Locke analyst, says he was not advocating for more court seats but rather pointing out that such a move was possible in North Carolina. The actual advocacy has happened more discreetly, and not just since Morgan’s victory. “I don’t think there’s any question: I have talked to fairly prominent Republicans in state government who say, ‘Yeah, they ought to do it,’” says Bob Orr, a Republican former state Supreme Court justice. “There has been, over the last year, awareness that if somehow we lost our Republican majority on the Supreme Court, we could add two more justices. It’s only now gained traction. All of a sudden, the need is a reality.”
Orr, who personally opposes court packing, says Republicans are worried that a Democratic court might threaten their legislative majority. Last summer, a panel of three federal judges declared 28 of the 170 legislative districts to be “racial gerrymanders” and ordered new maps before the 2018 elections. Both federal and state courts have jurisdiction over district lines, which means the composition of the state’s high court will affect whether lawmakers keep their jobs. “If we didn’t have this contentious, litigious redistricting system,” Orr says, “people wouldn’t care a whole lot who’s on the Supreme Court.”
For their part, GOP officials have been circumspect. Legislative leaders did not return phone calls; nor did Dallas Woodhouse, executive director of the North Carolina Republican Party. McCrory campaign spokesman Ricky Diaz said his boss had no comment. Chuck McGrady, a Republican state House member, says he has discussed the issue casually with his colleagues—“like the talk that goes on before or after church”—but that it has not received a formal airing within the GOP caucus. Others, including a lawmaker and a legislative staffer, have anonymously told reporters that a court-packing proposal could be in the works.
House Speaker Tim Moore has refused to rule out the idea. "I'm not saying it won't happen," he said at a press conference Monday. "I'm not saying it will happen."
Some progressives worry that the legislature wouldn't stop with the Supreme Court—that it might also intervene in the governor's race. With Cooper holding onto a lead of 0.15 percentage points, McCrory has challenged the results in 52 of the state’s 100 counties, claiming “voting fraud and irregularities.” In rural Bladen County, on the state’s coastal plain, he has alleged “a massive scheme to run an absentee ballot mill.” Even though county election boards are appointed by the governor, the boards in Charlotte, Raleigh, Fayetteville, and Durham have dismissed some of McCrory’s complaints. Others are still under review.
GOP lawmakers know that a Cooper victory, combined with the 2018 redistricting, could hamper their sweeping policy agenda. Since taking over both legislative chambers in 2011, Republicans have cut education and social-welfare spending, limited abortion access, expanded gun rights, dismantled environmental protections, and passed draconian restrictions on ballot access, many of which were blocked by a federal court. They have inserted themselves into local land-use decisions. They passed House Bill 2, which stifled the rights of local governments to protect workers and LGBT people, and forced some transgender people into restrooms that don’t conform to their gender identities. Cooper’s campaign pounded repeatedly on the economic blowback to House Bill 2, which has cost North Carolina new jobs, convention business, and athletic championship games.
Rob Schofield, director of research at N.C. Policy Watch, an economic- and social-justice watchdog project, says the court-packing effort and the election challenges in 52 counties could have a common endgame: legislative meddling in the outcome of an election.
“The point of these complaints is not to find actual votes for McCrory,” Schofield wrote last week. “The objective, as it has been for several days now, is to win a P.R. battle by dragging things out and sowing confusion amongst the media and the public so that the groundwork is laid for GOP legislative leaders to declare that there is a ‘contested election’ and thereby seize the authority for themselves to decide the Governor’s race.” There’s precedent for this: When the 2004 race for North Carolina’s education chief was thrown into dispute—because of 11,000 ballots cast in the wrong precincts—the legislature’s Democratic majority resolved it in their candidate’s favor. Moore, the speaker, called it "premature" to comment on Monday.
If the governor’s race were decided by the legislature, McCrory would win—though his victory would almost certainly be appealed to the federal judiciary. "A brazen power grab without a plausible basis for overturning the results of a democratically conducted election?" writes Richard Hasen, a professor of law and political science at the University of California, Irvine. "I expect the federal courts would take a very close look at such a thing."
Of course, legislative interference with election results works best without public scrutiny, and these reports have made headlines in North Carolina. In particular, "the governor’s apparently getting flooded with calls" opposing packing, says Schofield. “The backlash may be causing them to think twice.”
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