NC budget shifts power from Cooper and Stein, affecting elections, pandemic response
Tucked into the new state budget are numerous sections that don’t involve any money at all. And some are among the budget’s most controversial parts.
Several new policies proposed as part of the budget would take power away from Gov. Roy Cooper and Attorney General Josh Stein, both Democrats. And in some cases, Republican lawmakers would then transfer that power to themselves.
It’s the latest in a years-long power struggle that began in December 2016, shortly after Cooper beat Republican incumbent Pat McCrory for governor and before Cooper was even sworn into office.
Cooper announced Tuesday he would sign the budget into law, despite opposing parts of it and even hinting at future lawsuits over some of it. That’s what Cooper and others have done in past power struggles with the legislature. Cooper has won some of those legal battles, like who should be in charge of elections, and lost others, like whether the legislature should be able to reject his cabinet picks.
Regardless, GOP leaders appear to have bet correctly this year that the budget would have enough other popular provisions in it — like bonuses and raises for teachers and other state workers — that it could win Democratic support even if they stuck in other more controversial changes.
But that’s not to say Democrats are happy about it.
“It really bothers me that these policy provisions are included in a 600-page budget that we got last night and that the Senate is voting on today,” Rep. Pricey Harrison, a Greensboro Democrat, said Tuesday morning. “If they have merit, vote on them separately.”
Rep. Marcia Morey, a Durham Democrat, called the policy changes “a Republican legislative power grab.”
But a top Republican budget writer, Lincolnton Rep. Jason Saine, defended changes like one limiting the governor’s ability to declare a state of emergency. That was inspired by conservative opposition to Cooper’s mask mandates, business closures and other emergency orders.
“Limiting the powers couldn’t be soon enough for many in my caucus,” he said. “We don’t believe any one person should have that much control and that much power over an extended period of time,” he said.
Some of the legal changes and power shifts include:
▪ Giving lawmakers the ability to make final decisions on legal settlements involving the state, instead of state agencies and the attorney general’s office.
▪ Taking away the governor’s ability to declare a state of emergency for longer than 30 days without approval from other executive-branch leaders, or 60 days without the legislature’s approval.
▪ Eliminating the ability of the attorney general and state elections officials to settle lawsuits related to the Voting Rights Act of 1965.
Power over elections and more
Control of elections has been a recurring theme of the lengthy power struggle between Cooper and Republican lawmakers, and it’s no different in this year’s budget.
The legislature previously tried taking away the governor’s control over the N.C. State Board of Elections, in multiple ways that were ruled unconstitutional in court. They then tried amending the state constitution to make their plan work, in 2018, but voters rejected the amendment.
With that path blocked, GOP lawmakers are now planning to take away the election board’s ability to settle election-related lawsuits, and will instead give themselves the final say on whether settlements can go forward. And it’s not just elections issues that they are giving themselves power over — but any legal settlement from any state agency, if certain broad requirements are met.
“This is a problem, and it’s a problem on a lot of fronts,” Harrison said. “First of all, it’s unconstitutional for separation of powers issues.”
Cooper vetoed a bill with the same proposal earlier this year. After Republicans were unable to gather enough support to override his veto, they put it in the budget.
What Democrats see as an unconstitutional power grab, Republicans see as a necessary check. N.C. House Speaker Tim Moore said after Cooper vetoed the bill that it “would have mitigated the political games played by the attorney general in our state, and further strengthened the checks and balances in our state.”
The change would give Moore and his Senate counterpart, Sen. Phil Berger, the ability to veto any legal settlements in cases involving state law — even if the legislature wasn’t initially involved in the lawsuit, but later asked to intervene.
“All that provision does is say that it in general, that if we’re a party, the legislature’s a party to an action, that action cannot be fully resolved without our participation,” Berger said Tuesday.
Harrison said she’s not only worried about the implications for future elections. For example, she said, Republican leaders could potentially use that power to stop the state’s Department of Environmental Quality from making deals in court intended to fight pollution.
The need for the shift in power stems, Republican leaders say, from the final days of the 2020 election when the State Board of Elections voted unanimously on a bipartisan basis to settle a lawsuit brought by Democratic attorney Marc Elias.
GOP lawmakers were angry because it extended the deadline for mail-in ballots to be counted in that year’s election. They have frequently derided the settlement as a “collusive” deal between state Democratic leaders and Elias — something both Stein and state elections director Karen Brinson Bell say is false.
Another piece of the budget takes away some of the ability of Stein and elections leaders to work on legal matters involving the federal Voting Rights Act of 1965.
That law, which guarantees certain protections for Black voters, could be a focus of anti-gerrymandering lawsuits filed against the new political maps that Republican lawmakers passed recently, The N&O has previously reported.
An existing state law says in specific circumstances, like if a Voting Rights Act lawsuit threatens to delay an election, state elections officials can pass temporary rules to deal with the complications and can also work with the attorney general’s office to “enter into agreement with the courts in lieu of protracted litigation until such time as the General Assembly convenes.”
The budget would delete that last line of the law about court agreements, in keeping with the general theme of limiting Stein and election leaders. But it would not get rid of the other language, so elections officials could still pass temporary rules if necessary.
Emergency powers
Another policy change that Cooper previously vetoed but is now included in the budget would restrict the governor’s emergency powers in the future. It stems from the long-running coronavirus pandemic.
North Carolina is still under a state of emergency for COVID-19. Since Cooper declared the state of emergency nearly two years ago in March 2020, the governor has used emergency orders to make changes like temporarily shutting down restaurants and gyms at the start of the pandemic, and mandating mask-wearing statewide, which many Republicans opposed.
The budget would limit states of emergency in the future to 30 days without a vote from the Council of State, who are the 10 statewide elected officials in the executive branch. It currently has a 6-4 Republican majority. After 60 days, the General Assembly would also have to agree to an extension.
Both of those time frames are longer than what had been proposed by Republicans in previous legislation that Cooper has vetoed.
If the budget is approved the changes would start in 2023.
Saine said that while the pandemic’s not over, this provision tells Cooper: “We’re not trying to impact what you’re doing currently today, though many of us would like to see that shortened, but it does give us some time frame, some understanding that by the time we get to Jan. 1, 2023, that we have changed that law.”
The pandemic has shown that the emergency powers law is antiquated and needs changing, he said.
In explaining why he would sign the bill, Cooper said Tuesday that the start date of 2023 gives time to prepare for changes. Also included in the changes to emergency powers are limitations to the authority of state environmental and public health leaders — who are part of the governor’s administration.
One provision would limit the quarantine powers granted to the Department of Health and Human Services. Another would restrict DEQ’s ability to respond to any “imminent hazards” identified in North Carolina, instead largely leaving the job up to county health departments.
Targeting Josh Stein
GOP lawmakers backed off on one restriction on Stein’s powers as attorney general that they had previously floated in earlier versions of the budget. That would have stopped him from backing any political lawsuits unless he had permission from the Republican-majority Council of State. The News & Observer previously reported that lawmakers couldn’t point to any other state with similarly restrictive laws.
But other policies targeting Stein did make it in to the final budget, including the changes to settlement rules — and a $3 million budget cut.
In 2017, just six months after Stein became the attorney general, GOP lawmakers voted to cut his budget by $10 million to send a message that they didn’t like how he was doing his job, Berger told The N&O at the time. This year’s $3 million cut is a part of that. The initial budget cuts forced Stein to lay off 45 Department of Justice employees, and his office said it would work to avoid similar layoffs this year.
In a lengthy written statement, Stein said he thinks the changes to legal settlement powers are unconstitutional. But he also praised other parts of the budget, like $9 million extra to address the state’s backlog of sexual assault evidence kits, and expanding a “criminal justice fellows” program for law enforcement similar to the teaching fellows program that provides college aid to future educators.
“Additionally, I am pleased to see that the legislature is appropriating the funds from my office’s wins against Juul and McKinsey over improper e-cigarette and opioid marketing,” Stein said. “These funds will go a long way in protecting North Carolinians by helping prevent and treat addiction.”
Cooper, for his part, said that what he called a “direct attack” on the constitutional authority of the attorney general will be resolved in the courts.
For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at link.chtbl.com/underthedomenc or wherever you get your podcasts.
This story was originally published November 16, 2021 at 6:24 PM with the headline "NC budget shifts power from Cooper and Stein, affecting elections, pandemic response."
