North Carolina’s Disgraceful Power-Grabbing Legislators Weren’t Even Legitimately Elected

Last week in North Carolina, Republican state legislators, drunk on power and angry their governor lost reelection, executed a sweeping legislative coup. And on Wednesday, the same lawmakers failed to repeal their widely criticized anti-LGBT law, which, among other things, prevents transgender people from using the bathroom that matches their gender identity and prohibits local governments from enacting LGBT nondiscrimination protections.

From last week’s special legislative session called to provide financial relief to regions hit by Hurricane Matthew and wildfires, another surprise special session was born. On Dec. 14, lawmakers introduced 28 new bills. The next day, they passed legislation that severely limits the power of the next governor, Democrat Roy Cooper.

After a month of failed voter fraud allegations lodged by outgoing GOP Gov. Pat McCrory and his surrogates, the lame-duck governor almost instantly signed a bill that restructures state and county elections boards so they are no longer controlled by the governor’s party. Many of these boards rejected McCrory’s unsubstantiated claims that dead people, felons and out-of-state individuals had voted in the November election. Another component of the law hampers the chances that constitutional challenges to laws passed by the legislature will reach the state Supreme Court, which flipped to liberal control after African-American Judge Mike Morgan beat a Republican incumbent. Instead, it gives more authority to the Republican-dominated Court of Appeals.

On Monday evening, McCrory signed another bill, which makes Cooper’s cabinet appointments subject to approval from the senate, dramatically limits the number of state employees Cooper may hire or fire, and shifts power away from the State Board of Education and into the hands of the newly elected Republican state superintendent.

“In a deceitful display of raw power, Republican leaders of the NC General Assembly changed from smiling helpers of hurricane victims to greedy manipulators determined to expand their power, even as the federal courts said their legislative districts (and election) were illegitimate,” wrote Bob Hall, executive director of elections watchdog Democracy North Carolina.

Hall brings up an important detail that’s often left out of the story. This unprecedented power grab by North Carolina Republicans, in addition to anti-LGBT laws and numerous others ruled unconstitutional in court, were only possible because of racially discriminatory policies they have enacted over several years. To track how this happened, we have to go back to 2011.

After the Tea Party wave and outside political spending helped North Carolina Republicans win majorities in the state House and Senate in 2010, they set out to gerrymander state legislative (and congressionial) districts in a way that would ensure majority-expanding victories for years. With the help of the Washington, D.C.-based Republican State Leadership Committee and GOP mega-donor Art Pope, the legislature packed black voters, who vote overwhelmingly for Democrats, into a small number of districts in order to dilute their influence in the surrounding districts.

Then in 2013, after the US Supreme Court gutted a key provision of the Voting Rights Act, state legislators passed possibly the nation’s most suppressive voting law, mostly aimed at African Americans. The law established a voter ID requirement; cut early voting hours, including Sunday “souls to the polls” early voting; and banned same-day registration, preregistration for 16- and 17-year olds and out-of-precinct, provisional voting, among other measures. A federal appeals court struck down the law this summer, writing that NC Republicans “targeted African Americans with almost surgical precision;

Parts of the law were in effect during the 2016 primaries, and even after it was struck down, election boards did a poor job of communicating to voters that IDs were no longer required. To make matters worse, Republican-controlled elections boards reduced the number of voting sites during the first week of early voting; for example, officials in 518,000-person Guilford County cut polling sites from 16 to one, and the county saw a huge decrease in turnout during that period as compared with 2012. GOP Executive Director Dallas Woodhouse had actually sent out a memo to elections officials urging them to “make party line changes to early voting.”

Advocates even had to go to court to get the voter registration deadline extended for areas hit by Hurricane Matthew, something the State Board of Elections had refused to do. And efforts by Republicans to purge voter rolls in three counties were thrown out in court days before the election.

This year, North Carolina had an unpopular governor running for reelection and the state was a national battleground in the presidential and U.S. Senate races, but black early voting turnout was down 9 percent from 2012, something that the NC Republican Party publicly celebrated. The most recent tally from Nate Cohn of The New York Times shows that turnout by black registered voters was down close to 6 percent from 2012, with white turnout 3 percent higher.

Federal courts have rejected both congressional and state legislative districts in North Carolina this year, ruling that they are unconstitutional racial gerrymanders, but the 2016 legislative elections were allowed to take place under the illegitimate districts. An analysis by Paul Blest of Indy Week found that due to gerrymandering, Republican state senators got 48 percent of the total votes cast this year but won 70 percent of the Senate seats.

A court ordered NC legislators to redraw 28 racially gerrymandered districts and any affected surrounding districts — possibly 100 in total — by mid-March of 2017, with a special election to fill them in the fall. Of the 28 legislators currently serving in those districts, 25 appear to be black. Only eight additional black lawmakers serve in the legislature, and not one is Republican.

It’s likely that uncertainty over the GOP’s legitimacy and supermajorities next year was part of party leaders’ rationale for staging an eleventh-hour power grab.

Despite supermajorites in both legislative chambers, Republicans couldn’t find the votes to repeal their discriminatory anti-LGBT law, House Bill 2, on Wednesday. Governor-elect Cooper brokered a deal with the Charlotte City Council, whose nondiscrimination ordinance was the impetus for Republican legislators passing House Bill 2, and legislative leaders that entailed Charlotte repealing its ordinance in exchange for the General Assembly repealing its law. The council didn’t initially repeal its ordinance in full, but after it did so Wednesday morning, Senate President Pro Tempore Phil Berger refused to repeal House Bill 2 without tacking on a months-long moratorium on local governments passing nondiscrimination and other ordinances — essentially, a fake repeal. Democrats didn’t go for it, and without full Republican support, the repeal effort failed.

For three elections in a row, the GOP has been able to expand its grip on the legislature despite North Carolina becoming an increasingly purple state. And intoxicated by their illegitimate power, Republican legislators have passed at least 14 laws that courts have overturned, most recently a decision over water system control in liberal Asheville. Aside from unconstitutional redistricting, these laws include abortion restrictions, a ban on same-sex marriage, and crackdowns on a teachers’ organization.

Republicans’ recent power grab, along with the secretive legislative procedure that enabled it, will see several legal challenges by advocacy organizations and Cooper. The provision altering elections boards may violate the Voting Rights Act, according to voting law expert Rick Hasen.

“This special session was planned in illegal, secret meetings that excluded every African-American member of both the House and Senate,” wrote Rev. Dr. William Barber, head of the NC NAACP and leader of the Forward Together Moral Movement, which has led an effective grassroots movement opposing the legislature and governor since 2013. “The North Carolina NAACP and the Moral Movement see what is happening, and we … prepare to fight it in the courts.”

The anti-LGBT law is already in the courts, as the American Civil Liberties Union and Lambda Legal sued McCrory and the University of North Carolina in federal court last spring.

In a move symbolizing Republicans’ greater discriminatory strategy, the legislature failed to hear a certain bill during its surprise special session. While they had time to address the 27-page Senate Bill 4 and the 20-page House Bill 17, they couldn’t accommodate this one proposed by Democrats: House Bill 8, to ban racial profiling by police.