A version of this news analysis originally appeared in the Inside Politics newsletter, out Fridays. Sign up here to get it first to your inbox.
North Carolina House Republicans next week will attempt their final override of Democratic Gov. Roy Cooper’s veto of a bill this legislative session. It’s been labeled as Hurricane Helene relief, but is mostly about shifting power away from newly elected statewide Democrats, like Gov.-elect Josh Stein and Attorney General-elect Jeff Jackson.
The bill would strip Stein of the ability to appoint members of the state Board of Elections and give that to newly elected auditor David Boliek, a Republican.
As for Jackson, the bill says that the attorney general is “not authorized to take any position on behalf of the State of North Carolina that is contrary to or inconsistent with the position of the General Assembly.”
It also says that the attorney general “shall not, as a party, amicus, or any other participant in an action pending before a state or federal court in another state, advance any argument that would result in the invalidation of any statute enacted by the General Assembly."
That might mean Jackson couldn’t join other states’ lawsuits going against Republicans’ position on a contentious issue, like barring transgender athletes from girls’ sports.
Jackson is still in Congress for the next few weeks and is preparing to move to Raleigh. In an interview, he said, “The effect of this legislation would be to undermine the independence of the attorney general and in that sense, I think it’s politically motivated and short-sighted.”
He added: “The General Assembly doesn’t know who is going to be attorney general 10 years from now, or what the composition of the General Assembly will be then. The purpose of the attorney general is to be the voice of the people, and this will make that harder in a way that is more than is simply symbolic.”
This newsletter will explore the reasons the GOP has moved to clip Jackson’s wings — and how much he said it will impact his agenda, which he says includes fighting fentanyl.
Not OK with an oppositional AG
Republican Pat Ryan led GOP Senate leader Phil Berger’s communications team from 2018 to 2022. He said the move on Jackson goes back to two main issues.
The first dates back to 2017 when Republicans were trying to push through their 2013 photo ID law, which had been struck down by the 4th Circuit Court of Appeals for targeting Black voters with “almost surgical precision.”
Then-Gov. Pat McCrory, a Republican, appealed to the U.S. Supreme Court, but he lost reelection to Cooper. In early 2017, Cooper and newly elected Attorney General Josh Stein moved to dismiss the appeal.
The Republican effort to get the conservative Supreme Court to hear the case fell apart. CNN reported that Chief Justice John Roberts declined to hear the case, “given the blizzard of filings over who is and who is not authorized to seek review in the court under North Carolina law.”
Ryan said: “That was pretty clear sabotage of the voter ID case before the Supreme Court.”
Democrats, of course, disagreed. Cooper and Stein at the time said the law was unconstitutional.
(Republicans tried again on photo ID, which was used in a general election for the first time last month. The law was far more lenient than the 2013 version, and resulted in only about 1,700 voters having their ballots rejected for not having photo ID.)
The second main flashpoint came before the 2020 election during the pandemic.
That fall, Democratic Party-aligned groups had sued the N.C. Board of Elections and the General Assembly, seeking to make it easier to vote by mail.
In September, Stein announced a settlement in the case. Among the changes: watering down the requirement that at least one witness sign the mail ballot.
To Democrats, the changes were a common-sense approach during a raging pandemic.
Republicans were outraged. They viewed the settlement as collusion, with Democrats suing to change voting laws (which were passed by the Republican General Assembly) and getting a Democratic attorney general to agree to them. The legislature wasn’t part of the negotiations.
There’s a long tradition of weakening North Carolina governors and Council of State elected officials.
Chris Cooper, political science professor at Western Carolina, said the move to strip power from Stein, Jackson and others reminds him of what Democrats did to Jim Gardner, who was elected lieutenant governor in 1989. The Charlotte Observer at the time reported that he had been “stripped of power in the Senate.”
“To me, that is the most similar comparison,” Cooper said. “And now the lieutenant governor’s office has become an office in search of a purpose. The AG’s office could be in a similar place.”
A likely lawsuit — then what?
Should Republicans override Cooper’s veto, Democrats would likely sue in state court. But with the GOP holding a 5-2 majority on the state Supreme Court, it’s likely to fail.
That means Jackson would be prohibited from entering into a settlement like the one Stein made four years ago before the election.
And it’s arguable that Jackson could not withdraw an appeal, as Stein and Cooper did in 2017 over photo ID. Withdrawing an appeal would almost certainly qualify as taking a position “that is contrary to or inconsistent with the position of the General Assembly.”
And it’s likely that Jackson could not do as Stein did, and file a brief arguing that the state Supreme Court should not overturn its earlier decision in the Leandro public school funding case. A brief is arguably an action.
The bill also says the attorney general shall not “advance any argument that would result in the invalidation of any statute enacted by the General Assembly.”
In recent years, attorneys general have become part of the resistance. During Donald Trump’s first term, Democratic attorneys general filed numerous lawsuits against his administration; Republican attorneys general did the same thing under President Biden. South Carolina’s Alan Wilson routinely joins coalitions of Republican attorneys.
Shortly after the election, the AP reported that: “Democratic governors and state attorneys general are dusting off the playbooks from their offices’ pushback against President-elect Donald Trump’s policies, but they know it could be a harder battle in his second time in office.”
Could Jackson join a lawsuit if Trump moves forward with mass deportations? Perhaps. Could he join a lawsuit challenging a Trump administration requirement requiring law enforcement to detain people in the country illegally? Perhaps not, after GOP lawmakers here passed a law requiring sheriffs to cooperate with ICE.
Could the Republican General Assembly pass resolutions in support of Trump’s agenda, thus thwarting Jackson’s ability to sue the administration?
In response to that hypothetical, Jackson said: “The oath I take is to the Constitution. That’s the line. Any president who violates the rights of the people of North Carolina will find me at their doorstep.”
‘My agenda remains intact’
Jackson said the possibility of SB 382 becoming law doesn’t change much of what he wants to do.
“Most of my agenda remains intact,” he said. “We campaigned on tackling the fentanyl epidemic, as well as AI scammers, as well as other issues that are inherently bipartisan. I expect we will carry out our mission to keep the people safe.”
In last month’s election, Stein was the top-performing Democrat, getting 54% of the vote. But he was running against a deeply flawed opponent, Republican Mark Robinson.
Outside of Stein, Jackson was the top-performing Democrat statewide. He got nearly 51.5% of the vote and defeated Dan Bishop by 160,000 votes.
It could be argued that stripping oppositional politics from the job removes part of its glamor. But Jeff Jackson still holds plenty of power to build his brand: Suing scammers. Suing insurance companies. Suing hospital systems.
