It’s HB 2 all over again: North Carolina Republicans call secret ‘special session’ that could be a devastating blow for LGBT rights

During a secret session, North Carolina's Republican supermajority moves to strip the new governor of his powers

Published December 17, 2016 6:00PM (EST)

Roy Cooper   (Reuters/Jonathan Drake)
Roy Cooper (Reuters/Jonathan Drake)

North Carolina Republicans are at it again.

The state’s General Assembly gathered in a special session last Wednesday to fund disaster relief for Hurricane Matthew, allocating $200 million to communities devastated by extreme weather. Following that legislative session, lawmakers called a second meeting, the purpose of which they initially refused to disclose. Reports indicate, however, that the GOP proposed measures specifically targeting newly elected Democratic Governor Roy Cooper. The margin between Cooper and his challenger, the incumbent Pat McCrory, was just 10,000 votes, the closest in recent gubernatorial history.

The goal of state Republicans on Wednesday was simple: Take the power back from Democrats before Cooper even gets into office. “I think, to be candid with you, that you will see the General Assembly look to reassert its constitutional authority in areas that may have been previously delegated to the executive branch,” Rep. David Lewis. a Republican, told reporters during recess.

North Carolina’s General Assembly introduced 28 bills during this marathon session that lasted well into the darkest hours of Wednesday evening, all of them designed to roll back the power of the executive branch. By curtailing the duties of the governor-elect, the GOP hopes to limit his effectiveness in office. That matters a great deal when legislation like House Bill 2, the state’s notoriously anti-LGBT law, hangs in the balance. Cooper has stated that one of his highest priorities as governor will be to repeal the legislation, which forces trans people in the state to use the public bathroom that corresponds with the gender listed on their birth certificate.

Of the nearly 30 bills introduced on Wednesday, a resolution on HB 2 is conspicuously missing from the pack. As you might remember, the law was originally introduced by special session in March, when legislators forced the bill through the General Assembly in a single day. The tactic has proven an extremely effective method for subverting the Democratic process, passing legislation before the public has time to engage in debate. This is the fourth such session this year.

That bill proved extremely unpopular with constituents after being signed into law. HB 2 led to overwhelming economic losses for a state that until 2016 boasted one of the fastest-growing economies in the nation, affectionately referred to by politicians as the “Carolina Comeback.” As I’ve previously noted in Salon, the bill was a financial disaster, costing an estimated $5 billion each year. The widespread economic panic didn’t go unnoticed by voters on election day, who voted McCrory out of office largely in protest of the effect HB 2 had on North Carolina. Exit polls showed that two-thirds of voters felt the anti-LGBT law had negatively impacted the state.

But North Carolina Republicans, many of whom are the same legislators that passed the law nine months ago, seem to have devised a novel approach to keeping HB 2 alive. Instead of defending the bill, they aim to take away the pen of the man charged, by popular vote, with repealing it.

The legislation proposed Wednesday greatly curbs the authority of the governor’s office, drastically reducing the number of appointments with which Cooper will be entrusted. When McCrory took office in 2013, he was allowed to tap officials to fill 1,500 positions, ranging from court justices to board members. Cooper will be permitted to appoint just 300 people to government positions, a sharp 80 percent drop.

Rumors suggested that the GOP would be expanding the number of justices on the state's Supreme Court to pack it with Republicans, but that hasn’t yet come to fruition. House Speaker Tim Moore claims it’s not on the agenda. What North Carolina Republicans have done, however, is make it more difficult to bring cases to the state’s Supreme Court. Instead of bringing constitutional challenges directly to the court, smaller appeals courts will first deliberate on such matters.

That is a pointed attack on the critics who fought HB 2 by bringing suit against the state. The American Civil Liberties Union is pursuing a case known as Caracaño, et al. v. McCrory, et al. to overturn the ruling at the court level, and these regulations will slow down future challenges to discrimination. For marginalized populations in states like North Carolina, that delayed process can be devastating. Statistics from The Williams Institute, a pro-LGBT think tank at the University of California Los Angeles, show that 70 percent of trans people report being harassed or physically assaulted in a public bathroom at some point in their lives.

In addition, Republicans are seeking to change the makeup of state election boards. Currently, these five-person panels are controlled by the political party that occupies the governor’s seat, which is allowed three of the five slots. The other two are controlled by the minority party. Should Senate Bill 4 pass, the board will consist of an eight-member group with four appointees from each party.

Conservatives are touting SB 4 as bipartisan reform, but it’s not. When Republicans won a majority of seats in the General Assembly in 2010, the GOP gerrymandered the state so heavily that federal courts ruled the new district maps unconstitutional. The state will be forced to hold a runoff election in 2017 to undo the damage caused by redistricting. Creating equal representation on election boards will help Republicans ensure that balance of power in North Carolina doesn’t tip too far in favor of Democrats.

There are several other ways in which Wednesday’s legislative push tightened Cooper’s leash. A bill proposed last Wednesday night requires that the General Assembly, which is controlled by a supermajority of Republicans, approve all the governor-elect's Cabinet picks. If passed, the same strategy that has stymied the appointment of Merrick Garland to the U.S. Supreme Court could be used on the state level and hypothetically prevent Cooper from tapping anyone at all. It’s hard to lead your state if you don’t have a government.

Republicans also hope to strip the governor of his responsibility for naming trustees to the University of North Carolina system, as well as the state board of education.

The University of North Carolina, which actually consists of 17 campuses across the state, found itself in the center of the controversy over HB 2 after Margaret Spellings, the president of UNC, said that these schools would comply with the law. Three of the plaintiffs who filed suit against North Carolina over the bill — Joaquin Carcaño, Payton McGarry and Angela Gilmore — are affiliated with UNC as a staff member, student and professor, respectively. After UNC backed off its support of HB 2, a U.S. district court ruled that the college couldn’t enforce it.

By removing the governor’s ability to appoint trustees, who oversee policy matters that affect students and staff, Cooper will not be able to name candidates supportive of trans rights, including equal bathroom access on campus.

Legislators will debate the myriad of laws introduced during the Wednesday session next Tuesday. During the interim, groups like the North Carolina NAACP have announced that they will be protesting against a move that the state’s Democratic Party has referred to as an “unprecedented power grab.”

Everyone in the state should join them. It’s important to remember what happened the last time North Carolina’s General Assembly convened under a cloak of secrecy to force through legislation against the public will. The state ended up with one of the harshest anti-LGBT laws ever passed in the U.S., one that triggered a wave of bathroom bills targeting the trans community around the country. This time the stakes are even higher. By chipping away the powers of the governor, the judicial process, and even the electoral system, Republicans are attempting to ensure that bigotry remains the state’s new normal.

The impact of these laws remains to be seen, but for now, Rep. Darren Jackson, D-Raleigh, put it best. “This is why people don’t trust us,” he told reporters. “This is why they hate us. This is why politicians have a 10 percent approval rating.”

By Nico Lang


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Hb 2 North Carolina Roy Cooper