Opinion: Daily Journal

Special legislative election: a slam dunk for Democrats?

Only if the Republicans lose both the state House and Senate; otherwise, gridlock likely prevails

If you’re a North Carolina political junkie, it must seem like Christmas came in July. Which Tar Heel politicos’ stockings are filled with lumps of coal may depend on what happens Thursday in Greensboro.

That day a panel of three federal judges finally will hear attorneys for the General Assembly, Gov. Roy Cooper, and a host of aggrieved voters argue why there should (or should not) be a special legislative election before the regular November 2018 contest. The panel must convince the U.S. Supreme Court that holding the special election under new legislative districts is important enough to set aside several provisions in the state constitution — particularly one mandating two-year legislative terms.

The Supreme Court ruled in June the legislative districts, drawn in 2011, are unconstitutional. But the justices also said the lower court panel failed to justify the disruption a separate election would cause.

Thursday’s hearing will give those judges a chance to make their case to the high court.

It’s clear Cooper and the Democratic-friendly plaintiffs see a special election as their best chance to pick off enough Republican lawmakers to end the GOP’s legislative supermajority. Democrats would have to gain three House seats and/or six Senate seats to break the Republicans’ 60-percent margins in either chamber. Cooper then could force Republicans to negotiate, as a unified Democratic caucus would be able to sustain any vetoes.

They also see opportunity. The Trump administration is unpopular and in turmoil. And midterm legislative elections in North Carolina tend to reflect national political trends — meaning the party controlling the White House (this time, Republicans) typically loses seats in the state legislature. Cooper launched a “Break the Majority” campaign last week with the backing of former U.S. Attorney General Eric Holder. Democrats prefer to strike quickly rather than wait for the regular election cycle to run its course.

Whether you think justice demands a special election, or you see this lawsuit as an unconscionable violation of federalism, let’s imagine the Supreme Court orders an election for a new legislature, late this year or early next year.

What would the 2018 General Assembly do? Consider several scenarios:

Option 1: Republicans keep their supermajorities in both bodies. 

Seems unlikely, but remember the current General Assembly has sessions scheduled in August and September. They could schedule other sessions if needed. If Republicans have to hold a special election, they can and probably will load up the ballot with constitutional amendments designed to turn out conservative/Republican voters who might otherwise sit out an oddball election. And expand the General Assembly’s powers in the process.

Off the top of my head, I could see the GOP placing amendments on the ballot requiring voters to present photo identification at the polls; capping the state income tax rate at a lower level; enshrining hunting and fishing as constitutional rights; giving the General Assembly (rather than the governor) the power to appoint judges to vacant seats; removing the governor’s veto powers; limiting the governor to a single term; limiting the governor’s term to two years. All manner of mischief is possible, even if it’s unwise as a matter of politics or policy.

Upshot: If the supermajorities stand, Republicans will seek to shackle Cooper and future governors even more.

Option 2: The GOP loses its supermajority in one or both chambers — or control of the House or the Senate entirely.

Democrats and the governor are banking on one of these alternatives. Problem is, a divided General Assembly won’t do much. Cooper will propose a budget. The legislature will ignore it and propose one of its own. Either it will pass by a margin that can’t survive a veto or (if, say, the House goes Democrat and the Senate stays Republican) the two bodies won’t agree on a budget and the General Fund plan passed earlier this year will stay on the books until June 2019.

The two-year budget has enough money to fund state government until that time, unless we enter a recession, have a major emergency, or tax revenues come in far below projections.

The General Assembly doesn’t have to meet at all next year, so long as the government has enough money to operate at the level approved in the budget.

Upshot: If the House and Senate can’t pass a budget Cooper will sign, the current budget probably will stay in place and the 2018 General Assembly will do very little.

Option 3: Democrats take the House and the Senate.

This is the dream scenario for Democrats.

Upshot: The new General Assembly would pass a budget reflecting the governor’s expansive goals (and those of the newly empowered majority). Republicans and conservatives could not stop the liberal agenda.

Democrats would try to cement their victories in the regular 2018 election, leaving Republicans divided and dispirited.

If the special election takes place in 2017 rather than early 2018, I’d hedge my bets. I’d put some money on options 2 and 3. Yes, the president is floundering. And the Republican Congress can’t get out of its own way.

But the GOP’s fundraising nationally is far ahead of the Democrats’ — and a bunch of money outside North Carolina would flow into the state for a high-stakes special election.

Even if the Democrats regain the General Assembly, they may not be in charge for long. They’ll be held accountable if the state or national economy heads south, especially if Democrats reverse school choice, tax cuts, modest spending increases, expansion of state savings reserves, and other crucial components of the conservative agenda passed in recent legislative sessions.

You can bet the mortgage on one thing, even so: If we have a special legislative election before November 2018, lawyers, political consultants, and lobbyists might as well have a license to print money. Some things about politics never change.