Republican lawmakers slapped NC voters and the Constitution in the face

Editor's Note: This article was first published in The News and Observer.

Since 2010, the Republican North Carolina General Assembly has been engaged in an open competition — initially with other states, then, beginning in 2016, with the federal government — to see who could pioneer the defeat of constitutional democracy in the United States. On December 11, 2024, North Carolina became the first to capture the prize.

Wednesday, the N.C. House of Representatives joined the Senate to override Gov. Roy Cooper’s veto of Senate Bill 382. On a party line vote, in the final days of a lame duck session before Republicans lose their super majority, lawmakers deployed a “disaster relief” provision to strip a wide array of powers from just-elected Democratic executive officials in what is surely North Carolina’s greatest legislative power grab.

Thursday, unsurprisingly, Gov. Cooper and incoming Gov. Josh Stein sued.

Cooper and Stein are smart fellows. They’re also smart lawyers, represented by smart lawyers. So the two governors chose to strike first at the most dangerous, stunning and utterly indefensible move of the multi-faceted coup.

Senate Bill 382 strips core authorities from the new Democratic governor, lieutenant governor, attorney general, and state superintendent. It is, as Speaker Tim Moore (R-Eden) called it, “a Republican ideal.” Stein and Cooper’s lawsuit, though, narrowly targets the bill’s restructuring of the State Highway Patrol.

The statute makes the Highway Patrol a stand alone department — removing it from the N.C. Department of Public Safety. It then transfers a dramatic slate of executive responsibilities away from the Department of Public Safety to the reconfigured entity and “legislatively appoints the Commander of the Patrol” (Freddy Johnson) to “serve until July 1, 2030.”

The specifically chosen commander thus effectively becomes the “equivalent of a cabinet Secretary to the Governor, but not accountable to the Governor.” The governor can’t remove him, no matter the transgression or impediment, without the lawmakers’ permission. Stein derisively, but accurately, calls the alteration the “Legislative Commander Provision”.

The charade expands in another part of S.B. 382, which takes away the core gubernatorial authority to appoint members of the State Board of Elections and hands it to the Republican auditor thought to be more congenial to leading Republican Sen. Phil Berger, and Speaker Moore.

Offended by the vote of the people of North Carolina, they sliced up the governor’s job and distributed it to folks they like better. The N.C. Constitution and the officially-announced will of the people be damned. This is lawlessness on stilts.

The Highway Patrol “revision” is as unconstitutional as anything could be in North Carolina. It’s hard to imagine a more central executive power than law enforcement. Senate Bill 382 explicitly breaks the chain of command essential to carry out the “executive power vested in the Governor,” as stated in Art. III sec. 1 of our state constitution. It also endangers us all.

No one knows this better than Berger. He was the defendant in McCrory v. Berger, where a Republican chief justice spelled it out eight years ago. But Berger is confident we have no Supreme Court that will rule against him now. Maybe so.

Still, the questions presented by S.B. 382 are, if possible, even larger than the ones Cooper and Stein challenge. The radical statute does more than violate an esoteric notion like “separation of powers.” It overturns an election.

We didn’t vote to make Auditor David Boliek the electoral overseer, Highway Patrol Commander Freddy Johnson the chief executive, or our attorney general answer to Berger. Quite the opposite. We chose divided government even if that enrages Republicans.

Senate Bill 382’s power stripping, most of all, gives the back of the hand to North Carolina voters. It violates, outrageously, both the equal protection clause of the 14th Amendment and Art. IV, Sec. 4’s requirement that “the United States shall guarantee to every State in the Union a Republican Form of Government.” That’s true whether folks like Berger, Moore, their state Supreme Court buddies, and the whole Republican party agree. Americans believed these things strongly enough to put them in the Constitution. They still do by God.

Gene Nichol is a professor of law at the University of North Carolina-Chapel Hill.