AUDACITY DRESSED IN TARHEELS:

Stealing Elections North Carolina Style

North Carolina is known for its friendly people and Southern hospitality. A close look at its politics paints a completely different picture. And it is getting worse.

The state is not only embroiled in a constitutional dispute between the Democratic Governor and the Republican-controlled General Assembly, but another major political and legal controversy simmering for almost two months has now burst onto the national scene. The dispute involves whether the clear winner of an election to a position that voters sometimes overlook–the state Supreme Court–will be allowed to take her seat. And its resolution could have dramatic consequences for the nation. If Judge Allison Riggs’s election is voided, it will be the first time in recent memory where success at the ballot box is overturned and victory possibly awarded to the loser, simply because of political manipulation of the process. This is what many feared when Trump won this fall’s election, but few saw it coming this quickly, and certainly not in a state election for a supreme court seat.

DEMS WIN STATEWIDE RACES

Though Trump carried North Carolina last November, Democrats were absolutely giddy when they prevailed in the three major statewide contests for Governor, Lieutenant Governor, and Attorney General. The icing on the cake, however, was the victory of Judge Allison Riggs, the Democratic incumbent who narrowly won reelection to the state’s highest court. Her Republican opponent requested, as was his right, a recount. Losing that, he obtained another (this one, by hand). Riggs's margin remained solid. But Republicans had another card to play.

Before the state’s Board of Elections(a body in which Democrats had the majority because they had won the last governor’s election) could certify the results, the GOP filed suit to stop them, alleging that the registrations of 60,000 voters were technically deficient. The GOP hoped to get the issue before the state’s Supreme Court, where Republicans had a clear majority. There was no claim that the registrants were not qualified to vote, and, more significantly, no evidence that their votes changed the election. In addition, the GOP knew about these so-called deficiencies much before Election Day, but took no action to address them.

The GOP’s complaint was not that these voters broke the rules, only that their votes should not count because, among other technicalities, the state’s registration database did not include the voters’ complete Social Security number or other identifying information. Many of these voters had registered prior to new rules, and all had been required to produce a photo ID at the polls to ensure their identity. That does not concern the GOP, whose sole purpose is to prevent Riggs from taking a seat on the court.

THIRD TIME’S THE CHARM?

In a series of legal machinations, the Board of Elections forced removal of the case to the federal court, which then punted the issue back to the state Supreme Court, who will now determine if Riggs’s victory will stand. Talk about a conflict of interest! Rather than have the public, in a statewide election, decide who sits on the court, the judges themselves now may choose who will join their ranks.

This week, the 5-2 Republican-majority court ruled that the state Board cannot certify Riggs’s victory until her opponent can present legal arguments why this should not occur. It is not a final decision, and one Republican judge on the court publicly has stated that “[p]ermitting post-election litigation that seeks to rewrite our state’s election rules—and, as a result, remove the right to vote in an election from people who already lawfully voted under the existing rules — invites incredible mischief.” Nonetheless, these developments have many legal scholars and defenders of democracy antsy, because we are potentially witnessing one way where democracy can be subverted. Court arguments will be heard soon, and a decision perhaps rendered later this month.

POLITICS AS A CONTACT SPORT

The North Carolina fight takes place against a backdrop of bare knuckle politics practiced by the GOP over the last few decades. The reason for this has been clear. While Democrats have prevailed in state presidential contests only once in the last forty years (Obama in 2008), the party has won the governor’s race in 8 of 9 elections dating back to 1992. This has meant that Republicans can only rule the state by controlling the legislature and reducing the power of the Governor. And they have attempted this at every opportunity.

In 2007, Democrats held healthy majorities in both the House of Representatives and U.S. Senate. In 2010, this changed dramatically, as the backlash against Obama flipped not only the U.S. Congress to Republican control, but state legislatures as well. North Carolina was no exception; after the 2010 midterms, Republicans gained majorities in both houses for the first time since 1870. And the majorities were large–31 to 19 in the Senate and 68-32 in the House. The stage was now set for the next step in the Republican plans to maintain political control in the state – redistricting.

Unlike in Virginia and in many other states, Governors in North Carolina do not have the authority to veto redistricting plans. Hence, the legislature sliced and diced to their heart’s content, constrained only by the federal Voting Rights Act until it was eviscerated by the U.S. Supreme Court in the Rucho case in 2013. Their technical skill created district lines that would ensure their majorities for more than a decade.

In 2021, the next round of redistricting was conducted with Republicans in the majority, and nothing could stand in their way of drawing lines to protect their power–until the North Carolina Supreme Court ruled, in response to a Democratic court challenge, that their map was an illegal partisan gerrymander “unconstitutional beyond a reasonable doubt.” New districts would have to be redrawn.

Republicans had no ally in Democratic Governor Roy Cooper and the case was not appealable to the U.S. Supreme Court. So their only hope rested in the next election for the state’s supreme court. If they could flip seats from Democratic to Republican, there would be no check on their power. In the 2022 election, they got their wish; Republicans won both contested seats, giving themselves a 5–2 majority. Almost immediately, the new court revisited and reversed a number of decisions made by the previous court. An earlier ruling that voided a voter ID law passed by the Republican legislature for violating the equal protection clause in the State Constitution was cast aside. Earlier decisions that required more equality in school funding were jettisoned. And the court’s previous direction to draw new legislative maps was voided. So much for the concept of legal precedent.

IF YOU LOSE THE GAME, CHANGE THE RULES

In North Carolina, if you cannot win at the polls, you exert power through the legislature. In this fall’s election, not only did Democrat Josh Stein demolish his Republican opponent, but the GOP lost its veto-proof supermajority in the state house of representatives. This means that Stein can prevent many conservative measures from becoming law. But that dynamic only began this month, after a new Assembly was sworn. Until then, the GOP retained its supermajorities, free from the constraints of a gubernatorial veto. Immediately following the election, then, they convened a special session of the legislature. It was sold as necessary to provide help to the victims of Hurricane Helene. But other motives were afoot, including diminishing the powers of the incoming Democratic governor. Remember the state Board of Elections, the body where the majority is appointed by whoever wins the governorship? Linked to Hurricane relief was a provision that stripped the Governor of the power to appoint this body. Instead, the legislature moved the authority to the State Auditor, a position that has nothing to do with elections but was the only statewide office that Republicans won last fall. Hurricane relief also included provisions reducing the governor’s power to temporarily fill vacancies on state courts and new rules preventing the attorney general from taking legal positions opposed to the legislature.

This tactic is not new. In 2016, following Roy Cooper’s first election victory, Republican lawmakers also called a lame-duck session, and passed a measure to take away the governor's authority to appoint a majority of the State Board of Elections. That action was ruled unconstitutional by the state’s Supreme Court, then composed of a 4-3 Democratic majority. Times have changed, however, and so has the composition of the supreme court. And that is why the Riggs election is so important.

Last month’s legislative actions were so blatantly political that even former Republican Governor Pat McCrory condemned them, stating that it is “just not the way government should work.” Nonetheless, the legislative supermajorities were able to defeat Governor Cooper’s veto and the measures became law. As expected, Cooper and now Stein have sued, allegeding that the actions violate the defined separation of powers under the state Constitution. And who may end up hearing this case—the North Carolina Supreme Court. The machinations of political power can be devious, and those interested in the exercise of raw political power at the expense of democracy can learn much from North Carolina.