North Carolina’s legislature has a devious plan to overturn the will of the voters

The legislature plans to maintain the conservative majority on the court, ignoring voters altogether.

North Carolina Gov. Pat McCrory speaks to supporters as his wife Ann McCrory listens at an election rally in Raleigh, N.C., Nov. 9, 2016. CREDIT: AP Photo/Chuck Burton
North Carolina Gov. Pat McCrory speaks to supporters as his wife Ann McCrory listens at an election rally in Raleigh, N.C., Nov. 9, 2016. CREDIT: AP Photo/Chuck Burton

Even as Donald Trump won the state, North Carolina voters chose last week to elect a new liberal majority to the state supreme court. The new North Carolina Supreme Court would provide a check on the power of the GOP’s veto-proof super-majority in the state legislature. But the legislature has come up with a scheme that would add two seats to the court and allow Gov. Pat McCrory (R) to appoint two justices — maintaining the conservative majority.

Gov. McCrory himself is likely on his way out, having received several thousand fewer votes than challenger Roy Cooper, but he has not yet conceded and is waiting for the results of a recount. The court-packing bill could thus allow the lame duck governor to decide the future of the state supreme court for years to come.

This would not be the North Carolina legislature’s first attempt to disregard the voters and guarantee a conservative majority on the state supreme court. A 2015 bill would have kept the winning liberal candidate, Judge Mike Morgan, from even running in last week’s election. It would have changed North Carolina Supreme Court elections from contested races to retention elections, in which the public votes “yes” or “no” on whether to keep the justices on the bench. Even if the voters had rejected the conservative incumbent, the bill would have allowed McCrory to appoint his successor to serve for two years. The law was struck down as violating the state constitution.

No federal lawmakers have tried court-packing since President Franklin Roosevelt’s plan to increase the size of the U.S. Supreme Court, after it struck down a series of New Deal laws protecting workers and consumers from exploitation. Georgia legislators passed a bill in 2015 that added two seats to the state supreme court and resulted in a majority of justices appointed by Republican governors. Conservative legislatures in Arizona and other states have followed suit.


But at least these court-packing schemes did not blatantly overturn the result of a democratic election. The proposed North Carolina bill would be a slap in the face to voters who decided to elect a majority of liberal justices and narrowly rejected the incumbent governor.

North Carolina voters chose the liberal supreme court candidate after the current conservative majority repeatedly upheld controversial bills signed into law by McCrory. The court twice upheld the legislature’s 2011 redistricting maps, which federal courts have ruled discriminated against African American voters.

The state supreme court, the final interpreter of the state constitution, could have the final word in several crucial cases in the next few years. A state court is now hearing a lawsuit to stop the dumping of toxic coal ash in unused mines. The North Carolina Court of Appeals is also considering whether environmentalists can be required to post a $10 million bond to challenge a fossil fuel project.

The legislature could consider the court-packing bill during a planned emergency session in December. House and Senate leaders have refused to comment, but local media have quoted anonymous sources who heard legislators discussing the plan. One GOP legislator referred to the scheme as “stupid party politics.”

Republicans will have a super-majority in the state legislature in 2017, allowing them to override any veto. The governor would be unable to stop legislation that eliminates civil rights protections, like the HB2 law limiting LGBTQ protections, as well as legislation that makes it harder to vote. If the legislature disregards the voters’ choice and remakes the court next month, there will be no checks and balances on its power.


Billy Corriher is the Director of Research for Legal Progress at the Center for American Progress, where his work focuses on courts and judicial elections.

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