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Kicking and screaming: McCrory’s last stand

As the sun set on the last few days of the 2016 North Carolina General Assembly, the outgoing Governor rallied his Republican Party for one final push to cement his legacy.

NC General Assembly - Photo by Chuck McGrady (Courtesy of Google)

As Christmas shoppers made their final purchases, and families confirmed their plans for the holidays, at the North Carolina General Assembly, Santa was being arrested amidst public protests about the declining democracy of North Carolina.  There were rumors of the legislature attempting to add two additional seats to the North Carolina Supreme Court after Judge Mike Morgan, a Democrat, defeated incumbent Justice Robert Edmunds, a Republican, during the election for a seat on NC’s highest court.  Though judicial elections in North Carolina were officially nonpartisan at the time, the upset by Justice Morgan effectively swung the political balance of the court to a Democratic majority.

Under the NC Constitution, the Supreme Court “shall consist of a Chief Justice and six Associate Justices, but the General Assembly may increase the number of Associate Justice to not more than eight.”

Under the NC Constitution, the Supreme Court “shall consist of a Chief Justice and six Associate Justices, but the General Assembly may increase the number of Associate Justice to not more than eight.”  If the legislature exercised its power to create additional seats, it would have theoretically allowed Governor McCrory to fill the vacant seats with Republican judges, who would have remained on the court until North Carolina’s next judicial elections.  Other state legislatures have proposed similar plans to expand their Supreme Courts, as seen in May, 2016, when Arizona Gov. Doug Ducey signed a law adding two justices to the Arizona Supreme Court.  That same month, the Georgia legislature also passed a bill allowing Georgia Gov. Nathan Deal to expand the number of justices on the Georgia Supreme Court from seven to nine.

The backdrop for the court-packing rumors was the culmination of North Carolina’s long and arduous Governor’s race, which left Attorney General Roy Cooper – the Democratic candidate – victorious over incumbent Republican Governor Pat McCrory.  After numerous allegations of voter fraud and a narrow victory margin of approximately 10,000 votes, Governor McCrory officially conceded the election to Cooper in early December, four weeks after the election.

Immediately after the General Assembly voted to end the Third Extra Session, Republican lawmakers called a surprise Fourth Extra Session…

Days after the highly disputed election results, Governor McCrory released a proclamation of a Third Extra Session to be held on December 13, for the purpose of providing financial assistance to areas in North Carolina impacted by Hurricane Matthew and the western North Carolina wildfires.  The proclamation also included language that allowed the Extra Session to be used “for the purpose of addressing any other matters the General Assembly elects to consider.”

As a relief to many of the protestors in attendance, the legislature did not consider the rumored “court-packing scheme” during the Third Extra Session, but instead met and passed a bill ironically named HB2, which provided $201 million worth of financial assistance to those North Carolina residents impacted by the natural disasters during the year.  Hurricane relief recipients received $175 million, an amount which some North Carolinians felt was inadequate compared to the $836 million the legislature provided after Hurricane Floyd.  Senate Republicans, such as Senate Majority Leader Harry Brown, R-Onslow, pointed out that the bill was merely a starting point for further assistance later.

Immediately after the General Assembly voted to end the Third Extra Session, Republican lawmakers called a surprise Fourth Extra Session, much to the dismay of Democratic legislators and the many North Carolinians in attendance.  Republican leadership set a deadline of 5pm that night to submit bills for possible consideration, although the deadline was later extended to 7pm to accommodate more proposed legislation.  At the end of the day, seven new bills had been proposed in the Senate, and 21 bills had been submitted in the House.

The proposed legislation ranged from bills proposed over the 2015-2016 Session that were never passed, to new bills which some felt would lessen the powers of incoming Governor Cooper.  Some of the most controversial bills included a bill which would make Governor Cooper’s cabinet appointments subject to approval by the State Senate, strip his power to appoint members to the UNC Schools’ Boards of Trustees and the State Board of Education, as well as substantially cut the number of state employees under Governor Cooper’s control.

[T]he legislation which was discussed received national media attention as “a brazen power grab”

Another bill was proposed to not only merge the State Board of Ethics with the State Ethics Commission, but also to change the makeup of county election boards from the current three-member system (with two members chosen by the party of the governor) to four-member boards with an equal partisan split.  In the same bill, language was introduced which would require a judicial candidate’s party affiliation in NC’s Supreme Court elections to be displayed on ballots, which would return NC’s Supreme Court elections to a partisan system.  Also within that bill, language was proposed which would remove the right to have a direct appeal to the State Supreme Court for redistricting litigation and constitutional challenges, which could hold some cases in appellate limbo for years before the Supreme Court would finally get to hear them.

While not all of the bills initially proposed were introduced on the floor, the legislation which was discussed received national media attention as “a brazen power grab” by state Republicans.  On NBC’s “Late Night,” host Seth Meyers compared Republican’s attempts to strip power away from incoming Governor Roy Cooper to “losing a bet and paying with Monopoly money.”

Instead of debating whether the reforms were essential, some senate Republicans pointed out that Democrats have made similar moves to seize power in the past.  For example, in 1976, then Governor-elect Jim Hunt requested the resignations of staffers under Republican leadership days before Christmas in an attempt to replace them with new staffers under his control in the following years—a move which the NC Republican Party entitled the “ Christmas Massacre.”  Protestors in the Senate gallery were quick to combat the Republicans’ “they did it first” argument, with one protestor shouting “You’re employing the argument of a five-year-old!” as he was escorted out of the Senate gallery.

Before voting to adjourn the Fourth Extra Session, the Senate passed several bills, including the confirmation of two Superior Court judicial appointments, as well as the appointment of Yolanda Stith, wife of Governor McCrory’s then-Chief of Staff Thomas Stith, to a position on the NC Industrial Commission.  Both of the controversial bills mentioned above were passed as well.

For the third time that month, both legislators and protestors came back to the General Assembly to let their voices be heard.

Five days after the General Assembly made national headlines for curbing the power of its new Democratic governor, yet another special session was called to tackle an issue that has been at the forefront of the North Carolina political scene for almost 10 months–House Bill 2 (HB2), or the “Public Facilities Privacy &  Security Act.”  HB2, also commonly referred to as “The Bathroom Bill,” caused such an uproar among North Carolinians that some believe the infamous bill could have cost Governor McCrory the election.

Throughout his campaign, then-gubernatorial candidate Roy Cooper promised to work to repeal HB2, which, as reported on ABC News, “critics have called the most anti-LGBT bill in the country.”  Governor-elect Cooper reportedly called members of the Charlotte City Council in the late evening hours of Sunday, December 18, in an attempt to persuade them to symbolically vote to repeal Ordinance Number 7056, also known as “The Non-Discrimination Ordinance,” which became the catalyst for the legislature enacting HB2.  Since HB2 was passed, the Charlotte City Council twice refused to repeal the non-discrimination ordinance.  While there is dispute over what persuaded the Council to finally change its position, the Council voted in favor of repealing significant parts of its original ordinance following Governor-elect Cooper’s phone call.  However, the new ordinance was not a full repeal of the Non-Discrimination ordinance because it kept certain provisions, including a part of the original ordinance that allowed Charlotte’s Community Relations Committee to “approve or disapprove plans to reduce or eliminate discrimination.”

The Charlotte ordinance passed December 19th was also made conditional on a full repeal of HB2 by December 31, 2016.  It included a resolution which did not reflect a change in Charlotte’s attitude towards the LGBT community, stating, “The Charlotte City Council reaffirms its opposition to discrimination based upon race, color, religion, national origin, sex, marital status, familial status, sexual orientation, gender identity, and gender expression.”

In response to the actions taken on December 19 by Charlotte, Governor McCrory released a proclamation which scheduled another special session for Wednesday, December 21, “for the purpose of reconsidering 2016 N.C. Sess. Law 3, the Public Facilities and Privacy Security Act.”  For the third time that month, both legislators and protestors came back to the General Assembly to let their voices be heard.  The morning of the Fifth Extra Session, however, Charlotte Mayor Jennifer Roberts called an emergency meeting of the Charlotte City Council “to consider the adoption of ordinances related to non-discrimination and HB2.”  The Council again voted, this time to fully repeal the Non-Discrimination ordinance, “to ensure the repeal of HB2 would not be jeopardized in any way.”

At the end of the day, the whole debate was brought to a stalemate, and the Senate motioned to adjourn as frustrated protestors chanted “Shame!  Shame!  Shame!”

Despite the City of Charlotte’s last-minute efforts, the legislature could not come to an agreement on the repeal of HB2.  Republicans introduced one bill that would repeal HB2 by offering a “Six-Month Cooling-Off Period,” during which all local governments would be barred from approving or amending “any ordinance regulating employment practices or regulating public accommodations or access to restrooms, showers or changing facilities.”  In other words, this version of the repeal would ensure that Charlotte would be unable to enact another non-discrimination ordinance immediately after the repeal of HB2.  Democrats proposed a different bill, which would have repealed HB2 in full, effective immediately.

After hours of closed-door caucus meetings, and numerous instances of being called back to session chambers only to go back into recess, the House moved to adjourn and representatives gradually left to go home to be with their families for the holidays.  The Senate continued to debate, with both political parties refusing to budge on their stances.  At the end of the day, the whole debate was brought to a stalemate, and the Senate motioned to adjourn as frustrated protestors chanted “Shame!  Shame!  Shame!”

The final days of 2016 at the General Assembly seemed to come straight out of a HBO political drama, with plenty of closed-door meetings, vocal protesting, and media frenzy.  As the upcoming long legislative session quickly approaches, both North Carolinians and the nation will surely be waiting to see what is in store for North Carolina in 2017.

Lizzie Yelverton, Editor-in-Chief
About Lizzie Yelverton, Editor-in-Chief (10 Articles)
Lizzie Yelverton is a third year law student and serves as Editor-in-Chief for the Campbell Law Observer. She grew up in the small farming town of Eureka, NC, before moving to Raleigh to attend North Carolina State University. In 2015, Lizzie graduated from NC State with a Bachelor of Arts in English with a minor in Philosophy. The year following her first year of law school, Lizzie worked as an intern for Senator Floyd B. McKissick, Jr. in the North Carolina General Assembly. Lizzie is the Public Relations Chair for Women in Law, as well as a member of the Student Animal Legal Defense Fund and the Campbell Law Innocence Project. She is currently working as a law clerk at the law office of Baddour, Parker, Hine, & Hale, P.C.