How new NC election laws could strengthen GOP's grip on state and national politics
Republican state lawmakers this week are expected to pass a sweeping and controversial change to elections laws — one that could help GOP lawmakers further cement control of the state for years to come.
Senate Bill 749 would make major changes to who is in charge of administering elections in North Carolina. In doing so, it would also shake up how the state’s election rules are made and enforced. It already passed the Republican-controlled Senate along party lines and is likely headed to a similar result this week in the state House.
It comes on the heels of numerous other approved changes to elections laws this year, all of which are now in place or on the verge of becoming reality.
- Stricter rules for mail-in voting are expected to become law soon.
- Voter photo identification rules and a ban on felons voting after they leave prison are back in place, to the chagrin of civil rights activists who had briefly succeeded in having those laws ruled unconstitutional.
- A ban on outside grants helping fund elections is on the verge of becoming law after GOP leaders said the state’s heavily Democratic urban areas got too much aid in 2020.
- This fall, Republicans plan to redraw the state’s political districts — with a green light to manipulate the boundaries for political gain — following a state Supreme Court decision earlier this year that overturned an anti-gerrymandering precedent.
The bill expected to move forward this week, SB 749, would put an even number of Democrats and Republicans on the state and county election boards, a significant change from the current rules that give a 3-2 majority to whichever political party controls the governor’s mansion. It would also strip away the governor’s power to appoint election board members, transferring that power to the Republican-controlled legislature instead. Both changes would reduce the power of Gov. Roy Cooper, a Democrat.
The biggest change, to create evenly split boards, is on its face a bipartisan reform. Critics say that’s just a facade, intended to hide more sinister motives. But the legislature’s GOP leaders say it’s needed to improve voters’ confidence in election results.
When they first rolled out the bill in June, top Republicans said they wanted to take politics out of election administration and force the election boards, by creating the possibility for ties, to come up with bipartisan compromises in the future.
“When you have an elections board that’s controlled by one party, roughly half of the voters are going to question and doubt the fairness of the elections — and, in some cases, the outcome,” said Sen. Paul Newton, a Cabarrus County Republican who is co-chairman of the Senate’s election law committee and a lead sponsor of the bill.
Polls show that trust in elections has been declining in recent years, due to conservative voters who believe former President Donald Trump’s false claims that his 2020 loss to President Joe Biden was rigged. In 2018, Pew Research Center found, 87% of conservative voters said they thought that year’s elections would be administered well. That number plummeted to 56% in 2022.
In North Carolina, those same pro-Trump voters have urged their state representatives to do something to restore their faith in the election process. GOP leaders have obliged.
"Recent history has shown us that there's more paranoia — I don't know what the word is, more concern — with elections," North Carolina House Speaker Tim Moore said recently, explaining his support for a different bill, SB 747, that was inspired by Trump’s claims about mail-in voting. It passed earlier this summer, along party lines. Cooper vetoed it, but Republican lawmakers have a veto-proof supermajority and are likely to override Cooper and pass it into law.
As the legislature moves to change election laws ahead of 2024, voting rights and government watchdog groups are traveling the state trying to whip up concern. The state House last week postponed a planned vote on SB 749, after protesters came to the legislature and announced plans to disrupt the session.
Lawmakers said they pulled the bill to make a few last-minute changes. The leader of government accountability group Common Cause North Carolina, Bob Phillips, said he’s hopeful any changes will be substantial. He’s worried about the bill, saying the way it’s set up will increase the chances that the legislature — and not voters — will end up deciding who should win North Carolina’s votes for president.
Overturning election results?
Opponents say the bill is more likely to reduce voters’ trust in elections, not increase it. They include not just activists such as Phillips, but also Democratic politicians such as the governor. Cooper and the Democratic Party would lose control over the election boards heading into the 2024 presidential race if the bill becomes law.
In a recent opinion article for CNN, Cooper claimed Republicans are “using the ‘big lie’ of election fraud as cover” to pass new rules making it more likely that the GOP-led legislature could potentially choose which candidate will receive North Carolina’s votes in the 2024 presidential election — no matter who wins the popular vote.
The bill would not only create a politically split elections board; it would also lower the barrier for the board to refuse to certify an election. Cooper said the changes could make it more likely that the elections board fails to assign North Carolina’s Electoral College votes, after the election. State law says that if that happens, the legislature gets to pick. If the legislature also fails to assign the state’s Electoral College votes, then it goes to the governor to decide.
The stakes are high: North Carolina has 16 votes in the Electoral College, the system that ultimately decides who wins the presidency. Only seven other states have more votes, and most of those are not swing states.
“Of the states Trump won in 2020, North Carolina was the closest,” Cooper wrote in the opinion article. “In 2024, it’s not hard to imagine a narrow Joe Biden victory that is overturned by right-wingers in the Legislature or the courts when there is gridlock at the State Board of Elections.”
The state GOP dismissed Cooper’s claims as hyperbole.
“While Roy Cooper fear-mongers for federal office, N.C. Republicans are advancing solutions that put N.C. families and businesses first,” the North Carolina Republican Party wrote in a social media post responding to Cooper’s article.
An earlier plan similar to SB 749 — although not identical — was struck down as unconstitutional in 2018 by the North Carolina Supreme Court. Republican Senate Leader Phil Berger recently said he’s hopeful the new GOP majority on the state’s highest court, sworn in this year, will overturn that precedent if SB 749 becomes law and later faces a legal challenge.
Berger pointed to the dissenting votes in that ruling from 2018. One dissent was written by then-Chief Justice Mark Martin, a Republican who would later leave the court. A bipartisan Congressional investigation into the Jan. 6, 2021, attack on the U.S. Capitol found that Martin worked with Trump and his campaign “regarding plans to convene alternate electors in states won by Joe Biden.” Martin didn’t respond to a request for comment.
Critics fear SB 749 could make such a plan a reality in future elections, at least in North Carolina.
“Imagine if there was a partisan dispute about the certification of our elections statewide, and the only way to resolve it was to send it to the legislature to determine,” said Ann Webb, the top lawyer for Common Cause North Carolina. “Would that feel like democracy at work in North Carolina? Or would that feel like a real, partisan power grab?”
The demise of early voting?
Opposition to the bill isn’t just over the potential for the legislature choosing which presidential candidate gets North Carolina’s votes. Critics say another outcome would be that early voting in many — maybe all — counties would grind to a halt.
Sara LaVere, president of the North Carolina Association of Directors of Elections, told WRAL in June that such a scenario would be a worst-case scenario that she hopes can be avoided if the new rules do become law.
County election boards are in charge of deciding how many early voting sites to staff, and where to put them. History shows Democrats and Republicans often disagree on both those issues, and skeptics expect a tied board would be unable to come up with a plan. Any ties would go to the state elections board to decide — but the state board’s vote could also end in a tie along party lines, if the new rules go through. If that happens the county in question would be allowed to have only a single early voting site, at the county elections office.
In the state’s heavily Democratic urban counties, deadlock on an early voting plan could mean hundreds of thousands of people being diverted to a single polling place. In Wake County, for example, there were 20 early voting sites in 2020 to serve the 374,000 voters who cast an early ballot in the state’s biggest county.
Like with mail-in voting, for which the legislature is also proposing stricter rules, early voting is used by voters on either side of the aisle. But both are more popular with Democrats than with Republicans.
In 2022, Republicans and Democrats saw roughly 1.3 million voters from each party cast ballots in North Carolina, according to state election data. But 65% of the Democrats who cast ballots used early voting or mail-in voting, compared with 52% of the Republicans.
Democrats fear the changes are intended to make it harder for them to win elections by slashing early voting options. But Republicans have been adamant that’s not the case, and that the changes are solely to create newly bipartisan election boards. GOP leaders have also resisted some conservatives’ efforts to more directly target early voting. Earlier this year two dozen House Republican lawmakers proposed a constitutional amendment to slash early voting from 17 days down to seven days, but that proposal didn’t advance in the legislature.
Redistricting and the Supreme Court
Beyond the changes to elections law coming from the state legislature, the state Supreme Court made three massive changes earlier this year. In 2022, the court’s Democratic majority used a rare procedural move to speed up high-profile cases on redistricting and voter ID, striking down a 2018 voter ID law as racially discriminatory and, for the first time, ruling that extreme partisan gerrymandering violated the state constitution.
The cases were big wins for the liberal groups and civil rights activists who had brought them. Both were also immediately overturned once Republicans took control of the court in January, with the new majority using its own rare procedural maneuver to rehear the cases in order to redo the rulings in ways that favored the GOP position.
The new voter ID rules went into effect for the first time last month during early voting for local primary elections in Charlotte and Sanford. They'll get their first Election Day tests in those cities on Tuesday.
The original court decisions, and the do-overs, were criticized by the losing side as being politically motivated. Regardless, due to the Supreme Court’s staggered elections and eight-year terms, Republicans are almost certain to hold the majority on the court for years to come. So far that new GOP majority has shown a hands-off approach to the legislature, saying judges should be reluctant to interfere with a separate branch of government.
Nowhere will that be more on display in the lead-up to 2024 than with redistricting. Republicans lost a gerrymandering case before the 2022 elections, which led to experts being hired to redraw the state’s U.S. House of Representatives seats. That led to an even 7-7 split between Republicans and Democrats.
But now, with a new redistricting session this fall and a newly acquiescent Supreme Court, national GOP leaders are hoping to see state Republicans draw significantly more skewed lines. The original map that was ruled unconstitutional would’ve likely given Republicans a 10-4 or 11-3 advantage in the Congressional delegation, and insiders expect a similar map to be drawn again. It would be unlikely to be struck down in state court, although it could still face a federal lawsuit.
North Carolina’s soon-to-come redistricting session could be a massive boost for national Republicans, nearly doubling their majority in the U.S. House as the party seeks to retain control in the 2024 elections. Republicans hold a nine-seat edge right now, 222 to 213. North Carolina moving from 7-7 to 11-3 would be a net swing of eight more seats toward the GOP.
