Wednesday, February 15, 2017

A look at checks and balances on the state level - the case of North Carolina

Slate - which tends to be a bit to the left - details what the Republican dominated legislature in North Carolina to limit the power of the incoming Democratic governor, as well as the response of the courts.

It's a great look at checks and balances.

First: North Carolina Republicans’ Legislative Coup Is an Attack on Democracy.

Republicans in the North Carolina General Assembly staged a shocking legislative coup on Wednesday night, calling a second special session and proposing a raft of measures designed to strip power from the newly progressive state Supreme Court and governorship. This last-minute power grab marks an alarming departure from basic democratic norms—a blatant attempt to overturn the results of an election by curtailing judicial independence and restructuring the government to seize authority lawfully delegated to the incoming Democratic governor.

- The article goes on to list the specific measures introduced to limit both the governor and the courts.

Second: The North Carolina Supreme Court Just Blocked Republicans’ Unlawful Election Board Power Grab.

Note that the North Carolina Supreme Court has argued that the changes - at least those related to the Board of Elections - violate the separation of powers.

There is, however, a serious constitutional flaw in the bill. North Carolina’s constitution creates strict separation of powers, requiring that “the legislative, executive, and supreme judicial powers … shall be forever separate and distinct from each other.” It vests “the executive power” in the governor and states that he or she must “take care that the laws be faithfully executed.” Fortunately for Cooper, the State Board of Elections is an executive agency, and county election boards are arms of that agency. That means Cooper has a constitutional requirement to “take care” that the boards fully implement election laws.

Yet as Cooper pointed out in his lawsuit to halt the attempted restructuring, Republicans have deprived him of that ability. “By creating an evenly divided board structure and then imposing a super-majority voting requirement for all actions,” the suit states, “the legislative appointees can effectively hamstring the myriad actions required for the proper administration and execution of elections and elections laws.” Similarly, the evenly divided county boards would be “consistently deadlocked and unable to act,” and thus “unable to carry out their [statutory] duties.”

“In short,” the suit concludes, the Republican restructuring “ensures that the New State Board and county boards will be unable to execute the State’s election law, and it strips from the Governor any ability to change that circumstance. Accordingly, it prevents him from fulfilling his constitutional duty to see that the laws are ‘faithfully executed.’ ”

The North Carolina Supreme Court appeared to agree with this theory in halting GOP changes from taking effect. And although Monday’s decision was only preliminary, it seems quite likely that the court—which vigorously safeguards separation of powers—will ultimately agree with Cooper on the merits. Here, as in its effort to block Cooper’s cabinet appointments, the legislature simply overstepped its constitutional bounds. And for the time being, North Carolina’s courts remain independent enough to halt the GOP’s unlawful power grab.

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