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Sunday, November 20, 2016


What will they think of next?

by Tom Sullivan

"Bless your heart" is an expression slowly dying out across a South awash (as everywhere else) in social media and a gagillion cable channels. Depending on subtle cues in delivery, as many know, it was an overly genteel way southerners once insulted you with a smile on their faces. (R.I.P., Dixie Carter.)

We note today that Republicans in North Carolina are especially ungracious losers, bless their hearts. Two tricksy maneuvers rumored to be considered as GOP workarounds for November 8 losses illustrate the case.

First, Gov. Pat McCrory is falling further behind Attorney General Roy Cooper in the vote count in a very tight race for governor. Cooper's November 8 margin has grown steadily as Boards of Election across the state canvass absentee and provisional ballots. The State Board of Elections reported Democrat Cooper with a 6,600 vote lead on Friday; the Cooper campaign believes the final vote spread will be greater. The News and Observer reports:

Cooper, the Democrat, has held a lead of about 5,000 votes since Election Day. That lead has increased to 7,448 votes, according to Marc Elias who spoke to reporters in a phone-in conference. He said he expects that lead to grow slightly, based on the mix of counties that have yet to report outstanding ballots.
McCrory is crying "voter fraud" in an attempt to cast doubt on the process, claiming in over 50 counties (Republicans control the boards of election in all of them) that "up to 200 ballots should be thrown out because they were cast under the names of dead people or by felons or individuals who voted more than once, according to the campaign." Rumors are circulating that the GOP-led legislature could step in to decide the election:
The provision has only been used once before in modern history, when lawmakers named June Atkinson state superintendent of public instruction over Bill Fletcher in 2005, in a process that took nine months to resolve. At the time, the legislature was controlled by Democrats; Atkinson was a Democrat and Fletcher was a Republican. But the main issue then was whether some 11,000 provisional ballots should be counted even though they were cast in precincts outside of where the voters lived. This time the question is whether computer problems in Durham County led to errors in the vote count that could change the outcome. On Tuesday, the Durham elections board chairman, a Republican, said the board has not seen evidence of any problems.
House Speaker Tim Moore tells the press that invoking that process (explained here) would be "an absolute last resort." We shall see. Atkinson lost her bid for reelection this year.

Second, after Democrat Michael Morgan won a State Supreme Court race on Election Day (tipping the ideological balance of the court leftward), more than rumors are flying that Republicans might invoke a provision in the state constitution to get it back through (presumably) lame-duck appointments by Pat McCrory. That is, by court-packing. Zoë Carpenter explains for The Nation:
Last week, the conservative John Locke Foundation argued that the Legislature has the authority to expand the high court by two additional justices, who could be appointed by McCrory during his final weeks in office. The vote could take place during a December special session, which McCrory is expected to call under the guise of passing an aid package related to Hurricane Matthew. This would tip the balance of power on the court back to the Republicans.

The state chapter of the NAACP is already preparing a lawsuit in the event that the Legislature does try to pack the court. (Republicans in the General Assembly are sending conflicting signals about whether it’s really on the table.) “There is no justification for this. The court has had seven members since 1936, and there is no increase in the volume of cases that would dictate this,” said the Rev. William Barber II, the president of the North Carolina NAACP. “Clearly it is simply to engage in some form of legislative coup.” Barber believes court-packing would violate the Voting Rights Act; Wake Forest Law professor Harold Lloyd argues it could also violate the state Constitution.
Bless their hearts.

Republican legislators backed into this cactus after losing judicial races to Democrats in 2014, a year where across the country Republicans won seemingly everything:
In nonpartisan judicial elections in 2014, North Carolina Democrats also took three out of three contested Supreme Court races and won two out of three contested Appeals Court races. And those, in a sweep election where the GOP should have won it all. Republicans in the North Carolina legislature responded in 2015 by changing the way North Carolina elects judges.
Naturally, this was not an outcome they could allow to stand. So Republican legislature first tried to make judicial races "retention elections." A three-judge state panel this year ruled that unconstitutional and a split State Supreme Court affirmed the ruling. So Republicans settled for switching the judicial contests to partisan races:
Appellate judicial races had been nonpartisan since 2004. The House passed a bill last year that made races for the Supreme Court and Court of Appeals partisan. But the Senate passed a different version, leaving out the Supreme Court and making only the Court of Appeals partisan. That version became law.

Morgan and Edmunds, then, were on the ballot with no party by their name, and Morgan was listed first. In the five Court of Appeals races, parties were included and each Republican was listed first. They went five-for-five.
In the State Supreme Court race, however, the African-American Judge Morgan won by nine points, tipping the court leftward unless Republican legislators, bless their hearts, think up some other way of undoing the results of the election.