On election night, at the Marriott in Raleigh, North Carolina, what was supposed to be a victory party for Democrats turned grim as attendees slowly realized that both Hillary Clinton and Senate candidate Deborah Ross would lose, and that the GOP would retain its veto-proof supermajority in the State Legislature. Still, in the ballroom, one man gave a rousing victory speech: Mike Morgan, a black Democrat who managed to unseat a Republican justice on the state’s Supreme Court, tipping the court’s ideological balance from right to left. Another bright point appeared later that night when it became clear that gubernatorial candidate Roy Cooper, a Democrat, might eke out a win over Republican Governor Pat McCrory.
These are significant victories (though Cooper’s is still tentative; he leads McCrory by about 7,000 votes, with the margin growing as provisional ballots are counted). Next year, the State Legislature will redraw the state’s voting maps, after a court ruled that they’d been illegally gerrymandered along racial lines. The new districts will probably spark a legal battle, and the state’s high court could play a defining role in the dispute. As for the governor’s race, one of the most hotly contested in the country, McCrory’s loss would be a sharp rebuke to a conservative agenda that included restrictive voting laws and HB2, the discriminatory “bathroom bill.”
But now progressive groups are warning that Republicans may be considering intervening in both races to undermine the results of the election. 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. A confirmation 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.