Autocratic Assault on the Rule of Law in State Government: North Carolina

It is no secret we have seen a growing trend of autocratic regimes manipulating democratic institutions to assume lasting, undemocratic control over governments. One of the more recent autocratic takeovers of a formally democratic government was in Hungary by Viktor Orban. Others include Russia’s Vladimir Putin, Turkey’s Recep Tayyip Erdoğan, and Venezuela’s Nicolás Maduro. These individuals have taken the reigns of their national government with the help of complicit legislatures and judiciaries. As we have recently learned, these methods are not limited to taking control of federal governments.

We now know autocratic control can be exerted over a state government and without taking direct control of its executive branch. In the United States, we are seeing this through extreme state partisan gerrymandering. With blessings from the U.S. Supreme Court, North Carolina has become the poster child for shifting power from government for the people by the people — democracy — to government for the few by the few — autocracy.

The Legislature Does Its Part: Extreme Partisan Gerrymandering

The process of redistricting and gerrymandering has been well documented in North Carolina, including as it relates to its most recent congressional and state legislative district maps. North Carolina went from one of the most fairly redistricted states in the country to one of the least fairly overnight because its Republican-controlled legislature was willing to grab power through extreme gerrymandering and a party-friendly state supreme court was willing to support it. This extreme gerrymandering was achieved to the detriment of the voting rights of the electorate.

In the 1990s and 2000s, North Carolina state legislative districts were drawn in a manner that led to control of the statehouse changing parties fairly regularly. But since 2010, Republicans have consistently controlled the statehouse and, heading into the 2024 election, Republicans controlled 72 of 120 state house seats while controlling 29 of 50 state senate seats. Partisan gerrymandering created a political environment which allowed autocracy over democracy. No governor could stop the Republicans as they maintained a three-fifths supermajority over any gubernatorial veto in both houses.

At the national level, gerrymandering gave Republicans control of the nation’s House of Representatives. As North Carolina’s former Congressman, Democrat Wiley Nickel put it, the “process [of gerrymandering] has reshaped the balance of power in Washington D.C., costing Democrats control of the U.S. House of Representatives.” Statewide, the North Carolina electorate voted evenly, with fifty percent of the vote going to Democrats running for the U.S. House of Representatives and fifty percent to Republicans running for the house. This should have meant a close to even split of the 14 House seats apportioned to North Carolina, but the Republican controlled state legislature’s gerrymandering resulted in sending 11 Republicans to Washington while only sending three Democrats.

Removing Executive Checks and Balances

In this last election cycle, North Carolina elected a Democratic governor, lieutenant governor, secretary of state, and attorney general, while electing Republicans for other offices in the state’s executive branch, such as treasurer, auditor, and commissioner labor. The electorate also broke the legislative super-majority Republicans had held in the statehouse by one vote and nearly won several other seats in closely contested races, a sign the state is moving left. Recognizing the democratic power shift about to occur at the new term, the Republicans — who still maintained a super-majority before the new General Assembly could be sworn in — doubled-down on their efforts to undemocratically retain power into the future.

Republicans passed a hurricane relief bill that also stripped the Governor of executive authority including the power to appoint the State Board of Elections (transferring it to the state auditor who is now a Republican); limited the governor’s authority to fill Court of Appeals and Supreme Court vacancies; and, shortened the time to count provisional and absentee ballots to a point where all validly cast votes may not be counted. This was in addition to another bill removing the Governor’s ability to name his own commander of the state highway patrol effectively stymying his executive power to faithfully execute the laws of the state. The state highway patrol commander would effectively be unaccountable and there would be no executive chain of command for the Governor during a crisis.

Next, in the same hurricane relief bill, the Republican controlled legislature stripped the Attorney General of the power to challenge any law passed by the General Assembly effectively giving the legislature carte blanche law making ability. So, despite an electorate that appears to be moving left despite gerrymandering, Republicans continue with various power grabs which eat away at the rule of law and re-enforce autocratic government.

Stripping Citizen Voting Rights

According to the conservative Election Integrity Project, election integrity is an environment where, “all eligible American citizens are able to cast their vote.” And yet, a North Carolina Republican candidate for state supreme court justice is trying to stop that from happening by challenging in state court over 63,000 North Carolinian votes validly cast by real North Carolinians (not fraudsters), after failed challenges by Republicans before the state election board. These votes are not just the votes of Democrats but of Independents and Republicans, too.

Because the challenge does not involve fraud, by his actions the candidate is saying to eligible North Carolinian citizens, “Your votes don’t count. You don’t count.” This is a bizarre, harmful course of action not least of all because this is a person seeking to be a justice on the highest court in the state. To be a judge, it would seem, should at least require “good judgment” and a sense of “justice,” two characteristics this sore loser is not demonstrating.  Yet, the attack on the votes of real fellow North Carolinians continues with no protest from state Republican leadership.

Perhaps even more distressing, there is real likelihood that the five-to-two Republican-controlled state supreme court (with current Democratic Justice Allison Riggs recusing herself) could eventually rule to overturn this election in what would be a nakedly partisan power grab. Since judicial terms are eight years, this might push back any possibility of Democratic control over the court and the legislature another eight years despite voting results indicating a strong move to the left.

What This All Means

The foundation of the rule of law is under attack even at the state level.

North Carolina is a blueprint for how to get it done. There is a process one political party is pursuing in North Carolina whereby (much like Hungary and other autocracies) they are dismantling the rule of law by severely weakening or eliminating state government’s checks and balances and violating individual voting rights by gerrymandering or tossing validly cast votes with no evidence of fraud.

The state’s system of government — a democracy — cannot survive in an environment where one branch of government strips the power away from another branch to put its own policies into practice with no chance at compromise, or, through gerrymandering, tips the voting scales in its favor, defying the will of the people. That’s an autocracy and one ‘The Founders’ reviled by virtue of the government they created.

James "Jim" Saranteas is a practicing attorney of 25 years with experience at the trial and appellate levels in civil litigation. In 2012, the Loyola University Chicago School of Law’s Board of Governors chose him for its prestigious St. Bellarmine Award in recognition for his distinguished contributions to the legal community. He was both an adjunct professor and moot court coach in appellate advocacy for Loyola Law. Saranteas assists Duke Law’s Moot Court Board as a volunteer appellate advocacy coach. Saranteas received his J.D. from the Loyola University Chicago School of Law, and his B.A. in Economics & Business Administration from Knox College.

Democracy and Elections, Democracy and Voting, Judicial Campaigns and Elections, State Courts