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North Carolina's cautionary tale for purple states
Republicans have made themselves so powerful, it doesn't matter if Dems win elections.
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North Carolina Republicans are having a very good year, and now that they’ve locked down both the legislature and the judiciary, it doesn’t really matter whether Democrats win statewide offices like governor. Currently, the legislative and judicial branches in the state are working in tandem to ensure that the state GOP never loses power again.
Conservative lawmakers in North Carolina have spent years trying to enact policies that would enshrine their worst impulses into law. In 2016, the state was among the first to pass a so-called “bathroom bill” that would have blocked transgender individuals from using the restroom that corresponds with their gender identity.
Back then, the law was met with outrage. PayPal stopped its plan to expand into Charlotte because of the law. Some companies, like San Diego’s 1MORE, which makes headphones and earphones, decided to boycott the state entirely, declining even to sell products there. An Associated Press estimate at the time predicted the bill would cost the state over $3 billion in lost revenue over a dozen years. Back then, the GOP-controlled legislature was slightly more reasonable and repealed the bill, in a compromise with the state’s Democratic governor, Roy Cooper.
RELATED FROM PN: An uncomfortable truth about GOP anti-trans bigotry
However, in 2016, liberals held the majority of the seats on the state Supreme Court. In 2022, conservatives retook the court and now hold a 5-2 majority. This allows the legislature, which has a veto-proof majority after Democratic state House member Tricia Cotham switched sides, to have a symbiotic relationship with the judiciary: they pass laws, and the conservative judiciary will rubber-stamp them, no matter how outrageous. So, despite Democrats winning elections statewide — Cooper is still governor, and Democrats hold the attorney general, secretary of state, and state auditor slots — it doesn’t matter.
Because of this convergence of factors, the legislature has gone on a tear. The just-passed state budget bill contains major provisions that will reduce transparency, enshrine gerrymandering into law, and warp the state courts even further.
How North Carolina Republicans erased Dems from power
Public records laws are critical for citizens to understand the workings of government, so it isn’t surprising that the GOP, which relies upon disinformation, misinformation, and a lack of information, would want to ensure they could keep their work hidden. So, as Courthouse News explained, where North Carolina used to treat documents prepared by legislative employees as public data, they are now designated as confidential, and the existence of those documents can’t be revealed without the authorization of the legislator. Also, lawmakers now decide if something is public or not, and if not, they can destroy the document. Finally, even after they’ve left office, a legislator can’t be compelled to reveal any documents. This directly removes information from the hands of the people and shifts it to legislators who have every reason to keep their deliberations obscured.
The legislature also gave itself more power over the state courts. Where judges are currently appointed or elected, the GOP created 10 new trial-level judge positions that the legislature will choose. It’s a move that directly shifts power away from the people and to the legislators. The legislature also handed the current Republican chief justice of the state Supreme Court, Paul Newby, greater power to determine which judges hear lawsuits challenging state laws. So, a Republican chief justice can steer Republican lawmakers to Republican-friendly and/or Republican-appointed judges to hear a challenge to laws passed by a Republican legislature.
Since the state has a Democratic governor, the legislature has worked to minimize his power. Though Cooper vetoed a bill that would decrease his ability to appoint people to certain state boards and commissions, the Republicans have the votes to override that veto and did so on Tuesday.
Next, to seal the deal and keep Democrats out of office, the North Carolina legislature is set to pass newly-drawn districts yet again this month. Those districts are being drafted privately in a room that isn’t accessible to the public. Combine that with the legislature now insulating itself from most public records requests, and the public will be wholly in the dark about how the legislature drew the new legislative districts. The state Supreme Court had previously ruled that partisan gerrymandering was illegal, but reversed itself earlier this year, creating the perfect condition for the legislature to draw a map that ensures Republicans win the majority of seats regardless of whether they have the majority of support.
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The budget also contains a provision that reshapes the Judicial Standards Commission. This commission would normally be largely unknown, as most people aren’t lining up to learn about disciplinary actions against state court judges in North Carolina. However, the legislature gave themselves much more authority over it. Previously, the state bar picked attorneys for four of the commission’s members. Now, the state legislature will select four judges instead. As with all the other moves from the legislature, it takes power away from the public and shifts it to the legislature. It also ensures the legislature can pick judges friendly to Republicans rather than attorneys who may have no connection to either party.
Reshaping this commission is critical for the GOP’s next move in North Carolina: getting rid of the one Black woman, Anita Earls, on the state Supreme Court. The Judicial Standards Commission is investigating Earls for the high crime of pointing out that there are systemic issues of racial bias in the court system. Earls made the comments when speaking to the media about a study that found 90 percent of the lawyers who argued before the state Supreme Court were white and almost 70 percent were male and discussed how her colleagues had treated a Black woman advocate who had appeared before them. She also called out the Republican chief justice for getting rid of implicit bias training.
The commission says Earls’s statements are an ethical violation because she doesn’t have definitive proof any specific judge is biased, but that accusation willfully misunderstands what Earls was saying. Earls wasn’t calling out individual judges or their behavior. Rather, she was commenting on the fact that the legal system in the state struggles with racial bias — an issue that the legal profession faces across the country. What should be a relatively straightforward observation about the state of the profession in North Carolina is instead being weaponized to get rid of Earls.
The situation in North Carolina highlights just how tenuous a hold citizens have on democracy. Chief Justice Newby ousted the former chief justice, a Democrat, by just 401 votes in 2020, and that victory set the stage for all the power grabs to come. In contrast, a judicial election in Wisconsin ensured that the GOP can’t entirely cut liberals out of government.
Wisconsin Republicans are making a similar power grab
The GOP holds a supermajority in both legislative houses in Wisconsin, just as in North Carolina. However, Wisconsin Republicans were thwarted in their attempt to create the same alignment between the legislature and the judiciary when Janet Protasiewicz was elected to the state Supreme Court earlier this year, tipping the balance of the state Supreme Court to liberal justices 4-3. Protasiewicz made clear her judicial priorities were preserving abortion access in the state and undoing the state’s extreme gerrymander.
Republican legislators in Wisconsin have been quite clear they want to preserve that gerrymander, with GOP State Assembly Speaker Robin Vos stating that “if you took Madison and Milwaukee out of the state election formula, we would have a clear majority.” Since the GOP can’t stop Milwaukee or Madison from having a demographic composition they don’t like, they instead resort to gerrymandering so severe that the GOP can win legislative supermajorities in the state even when they lose the overall popular vote.
RELATED FROM PN: Wisconsin Republicans plot a shameless power grab
Now that gerrymander is in danger, the GOP has targeted Protasiewicz, floating an attempt to impeach her ostensibly over statements she made during the election about gerrymandering. In actuality, Protasiewicz has to go because her presence on the court blocks Wisconsin from having what North Carolina already has: a conservative legislature and Supreme Court that work in tandem to push GOP policies, to pass laws that make it impossible for Democrats to take the majority in the legislature, and to minimize the power of any Democrats who manage to get elected statewide.
Right now, Protasiewicz’s presence is a fragile bulwark against the GOP in Wisconsin, but her victory came at a great — and literal — cost. The race was the most expensive state Supreme Court race in the country, ever. Getting out the vote and being strategic about state court races will be critical to stopping more states from becoming North Carolina.
That’s it for today
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