The XX Factor

NC Gov. Calls Special Legislative Session, Setting Up Possibility of Court-Packing Power Grab

North Carolina Gov. Pat McCrory on Feb. 23, 2015.

Chip Somodevilla/Getty

North Carolina Republican Gov. Pat McCrory is not a big fan of democracy. First, McCrory signed and championed HB2, a vicious anti-LGBTQ law designed to overturn local nondiscrimination ordinances. Then, McCrory’s legislative allies attempted to censor criticism of HB2—likely because a clear majority of voters oppose the bill and support its repeal. On Election Day, McCrory lost to Democratic Attorney General Roy Cooper, who opposes HB2. But he refused to concede, flinging baseless accusations of voter fraud seemingly designed to let the Republican-dominated legislature ignore the results and reinstall McCrory as governor. Now, as McCrory awaits the results of a partial recount that cannot possibly close his 10,000-vote deficit, he has decided to call a special legislative session in December.

The stated purpose? To address hurricane relief funds. But many Democrats fear a darker motive: to pack the state Supreme Court with new Republican justices before the GOP loses hold of the executive branch.

Currently, seven justices sit on the North Carolina Supreme Court. Before the election, the court split 4-3, with Republicans in the majority. On Election Day, however, voters ousted a conservative justice, replacing him with a Democrat and tipping the court to the left. Republicans already tried to prevent the progressive candidate from running, passing legislation that was ultimately ruled unconstitutional. Now rumors are flying around the capital that McCrory and Republican legislators will push through a bill expanding the court from seven to nine justices—allowing McCrory to appoint two new justices and maintaining Republican dominance over the judiciary.

If Republicans were to pass a court-packing bill, it would look … a lot like what’s happening now. The last time the North Carolina GOP held a special legislative session, it was to pass HB2 before most voters even knew what was happening. Republicans have mastered the art of the rushed special session designed to pass unpopular legislation without voter input. The upcoming December session marks a prime opportunity for the GOP to pull this trick with a court-packing bill.

Of course, McCrory asserts that the session’s purpose is to help communities ravaged by Hurricane Matthew. But we have seen this chicanery before. In 2013, North Carolina House Republicans took up a straightforward motorcycle safety bill—and turned it into an anti-abortion measure that placed ridiculously onerous requirements on abortion clinics. The Republican-controlled state Senate sat on the bill until late in the last full day of the legislative session, then swiftly passed it with minimal debate. McCrory promptly signed the bill into law, breaking a campaign promise not to further restrict abortion access. Democrats were caught entirely off guard and never fully mobilized.

Could Republicans pull a similar trick with a court-packing bill, waiting until the last minute of the upcoming special legislative session, then cramming through a bill that secures their control over the state’s highest court? Of course. Will they? It all depends on what they think they can get away with. Republicans’ grasp on power is clearly slipping: Cooper will soon take control of the executive branch (barring a legislative coup), and a federal court has ordered the legislature to redraw maps without racial gerrymandering and hold elections next year. Why wouldn’t Republicans use this opportunity to sustain their supremacy over the judiciary, however illegitimately? They have everything to gain—and nothing left to lose.