The North Carolina GOP Is Trying Every Trick To Keep A Supreme Court Seat

Anita Earls has been the North Carolina GOP’s chief antagonist in the courtroom. Now she’s running for a seat on the state Supreme Court as a GOP threat to pack the court looms.
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Judicial races in North Carolina tend to be low-key affairs. But the crowd gathered at a farmhouse near colonial-era Hillsborough last August — bluegrass on the screen porch, goats in the yard — gave a superstar’s welcome to the Democratic candidate for state Supreme Court.

For years, Anita Earls has been the go-to attorney in North Carolina for beating back assaults on voting rights. She’s had her hands full: Since the 2010 Republican landslide, the state legislature has operated like a perpetual-motion catapult, hurling one measure after another to reengineer the electoral landscape and seeing what sticks in court. Legislators have drawn electoral maps testing the outer limits of gerrymandering. They’ve tried to repeal ballot-access reforms that helped then-candidate Barack Obama carry the state in 2008. They canceled an election, changed how judges are selected, and are now trying to take control of the state’s elections machinery.

Each of these measures is a building block in a larger structure designed to maintain Republican power in the face of a demographic threat. North Carolina is growing more urban and racially diverse, trends that typically favor Democrats. “Building a seawall is not new,” said Justin Levitt, a professor at Loyola Law School in Los Angeles and former official at the U.S. Justice Department’s Civil Rights Division. “But it has been more blatant in North Carolina than it has been in many states.”

The Republicans’ onslaught has produced an outcry audible well beyond the state’s borders. Attacks on voting rights helped fuel North Carolina’s Moral Monday movement, which attracted international attention by repeatedly taking over the Legislative Building in Raleigh starting in 2013, leading to more than 1,000 arrests. The attacks also sparked a pile of lawsuits. Providing much of the courthouse muscle has been the Southern Coalition for Social Justice (SCSJ), a non-profit that Earls founded and until recently directed.

“She’s been the rock star on the legal front when it comes to voting rights here in North Carolina,” said Derick Smith, political action chair of the state NAACP, a key player in the Moral Monday movement. “Almost every facet, she’s been the lead, and we keep winning.”

Mountain Moral Monday participants in Asheville, North Carolina in 2014. (Photo: Getty Images)

At the Hillsborough farmhouse, Earls stood in front of a wood stove and addressed a living room heavy with creative professionals. At 58, she is slender and freckled, and her hair was clipped back in a ponytail. “My father’s black; my mother’s white,” she said. “And when they met and fell in love in Missouri, it was actually illegal in that state for them to be married.” Earls grew up in Seattle, where interracial marriage was permitted.  “But… seeing the barriers that my family faced, seeing… the civil-rights movement and the accompanying movement within our legal system to get us closer to that guarantee that is etched in stone over the U.S. Supreme Court, the guarantee of equal justice under law — seeing that inspired me to believe that, as an attorney, I could make a difference.”

The candidate received a standing ovation. She has been adept on the fundraising trail: By June 30, she had brought in almost $500,000, outraising Republican incumbent Barbara Jackson by more than two-to-one. How that will translate into votes is less clear. A recent poll, conducted in early September for the conservative Civitas Institute, showed Earls with 38 percent of the vote and Jackson with 11 percent. A third candidate, Republican Chris Anglin, had 7 percent. Another poll in early October by Spectrum News was similar: It had Earls at 43 percent and Jackson at 15 percent. Anglin had picked up steam, with 22 percent. Both left a lot of undecideds.

North Carolina Republicans have made no secret about their frustration with the state and federal judiciaries, which have thwarted much of their political agenda. The prospect of losing a state Supreme Court seat to their courtroom nemesis has proven particularly distressing. Democrats hold a 4-3 majority on the court. An Earls victory would widen the gap to 5-2.

The combination of broad frustration and personal animus has led Republicans to pivot their catapult toward the courts. They have gone after Earls personally, calling her a “radical” and “a danger to human life.” They have accelerated their attempts to change how judges are selected. There is even talk of packing the courts, which would give Republicans some protection from challenges to their efforts to gerrymander the state. Their concern is particularly acute given that the 2020 census is just around the corner, and with it, a new wave of redistricting that could potentially strengthen Republicans’ hold on the legislature until 2030.

The brilliance of targeting the judiciary is that it could create courts more likely to condone legislative efforts to restrict ballot access. North Carolina “has clearly been a laboratory and a model for what you can do strategically to suppress targeted groups of voters,” said Democratic state Senator Floyd McKissick Jr., son of one of the 20th century’s preeminent civil-rights leaders. “We’ve been able to historically look to the courts to provide open doors and to stand up for rights. But it’s not so certain that that future will be as bright as it has been in the past. There’s reason to believe that that light will become far dimmer.”

North Carolina’s legacy of voter suppression dates back well over a century — traversing poll taxes, literacy tests, and the violent 1898 overthrow of a biracial government in the coastal city of Wilmington. “We have faced terrorism,” state Representative H.M. “Mickey” Michaux Jr., a Democrat in his late eighties, once told his legislative colleagues. “When you tried to get people to register to vote, you were vilified, you were lynched, you were run out of town.”

During the mid-20th century, Michaux traveled the back roads of Eastern North Carolina, alongside civil-rights leaders like John Lewis, trying to convince other African Americans to register. “We were rebuffed because they were scared,” he said of those nighttime visits. “They knew if they did, they would lose whatever sustenance that they had coming in.”

“When you tried to get people to register to vote, you were vilified, you were lynched, you were run out of town,” recalled state Representative H.M. “Mickey” Michaux.

Because of North Carolina’s history of exclusion, it was singled out for scrutiny under the Voting Rights Act of 1965 (VRA). Statewide changes to voting policies, and local changes in 40 of the state’s 100 counties, had to be approved by the U.S. Justice Department before they could become law. The VRA helped boost African-American registration over the 50-percent mark in North Carolina for the first time in half a century. That, in turn, propelled black candidates, in Michaux’s words, “from disgrace to Amazing Grace.”

Until recently, though, African Americans lagged behind whites in voter participation, just as they did in education, income, employment, and health. It was an area Anita Earls followed closely while working for the University of North Carolina’s Center for Civil Rights. “Despite the VRA, black voters are still experiencing the socio-economic consequences of past discrimination that critically impede their political participation,” she wrote with two co-authors in 2006. And intimidation persisted: In 2004, Earls later told a congressional committee, a North Carolina sheriff dispatched his deputies to visit voters with Spanish surnames and confirm they were citizens.

Lawmakers in North Carolina quibbled over whether and how to make it easier to vote. In 1999, the Democratic-controlled legislature, also known as the General Assembly, took a first step to expand voting with a policy called “no excuse” early voting. Polls would be open for several weeks, including weekends, and citizens didn’t need to provide reasons to vote before Election Day. African-American churches seized the opportunity, transporting parishioners to vote after Sunday worship services — a fusion of religious and civic obligation nicknamed “Souls to the Polls.”

Other reforms followed. A 2005 law allowed voters who showed up at the wrong precincts to cast provisional ballots in races for which they were eligible. In 2007, the General Assembly passed a law allowing citizens to register during the early-voting period and vote on the same day. And in 2009, North Carolina students were given the opportunity to preregister after their 16th birthdays — public high schools would even promote it — and to then be automatically able to vote when they turned 18.

Obama

“This was opening up our democracy,” said Melissa Price Kromm, director of the non-partisan North Carolina Voters for Clean Elections. The state went from 43rd in voter participation in 1996 to 11th in to 2012. There were multiple reasons for the rise; for one, the first Obama campaign invested heavily in North Carolina. But, thanks to a decade of reforms, voting was also just easier. “In 2008, I was driving to work and could hear these Obama radio ads saying, ‘Please utilize same-day voter registration,’” Price Kromm recalls. “I think the combination of the first African-American president and having these reforms available — that bolstered a lot of voter turnout.”

In 2008, African Americans in North Carolina outvoted whites as a percentage of voting-age adults. Obama carried the state that year by 14,000 votes. Republicans took notice.

North Carolinians celebrate the victory of Barack Obama on November 4, 2008. (Photo: Getty Images)

The movement toward clearing barriers continued as long as Democrats held power. Then, in 2010, the Republican State Leadership Committee’s Redistricting Majority Project (REDMAP) swung into action, targeting key swing states across the country. North Carolina was a special priority. The party spent more than $1.2 million to flip the partisan composition of North Carolina’s legislature, and succeeded. The new Republican majority, charged with redistricting after the census, drew maps that strengthened GOP state legislators’ hold on their own seats. But they didn’t immediately overturn the Democrats’ ballot-access reforms. Instead, they waited until a 2013 U.S. Supreme Court decision allowed them to pounce.

That decision, Shelby County vs. Holder, eliminated the preclearance requirement under the Voting Rights Act. State and local governments, even those that had previously targeted minority voters, could now change their election systems without first asking the U.S. Justice Department. Speaking to reporters, the Republican chair of the North Carolina Senate’s Rule Committee at the time, Tom Apodaca, expressed relief hours after the court ruling that the “legal headache” of preclearance was gone.

A month later, with that barrier removed, legislative leaders unveiled the Voter Information Verification Act (VIVA), a 57-page overhaul of North Carolina’s election laws. The bill abolished many of the last decade’s most successful reforms: same-day registration, youth preregistration, and ballots for those who arrive at the wrong precinct. It reduced the number of early-voting days. It required voters to show government- or tribal-issued photo ID at the polls, even though an estimated 150,000 to 200,000 active voters lacked the proper documents. It didn’t recognize student ID cards, including those issued by state universities.

The law seemed to target the Obama coalition of minorities and young adults. “It was precisely tailored to shaping the electorate,” said Levitt, the law professor and former DOJ official. “Republicans who had recently taken control liked the electorate of 2010 a whole lot better than they liked the electorate of 2008. They took steps in order to try to build the election of 2010 over and over again.”

State representative David Lewis, co-chair of the House Committee on Elections and Ethics Law, denied ill motives. He argued that photo IDs were needed to prevent illegal voting. “When voters are disenfranchised by the counting of improperly cast ballots or outright fraud, their civil rights are violated just as surely as if they had been denied the chance to vote,” he said in 2013. (Lewis and five other Republican legislators declined or didn’t respond to interview requests.)

Likewise, Republicans insisted some of the Democrats’ reforms, including the preregistration of 16- and 17-year-olds, opened the door for illegal voting. “When the schools pass out registration forms and tell people to fill it out, they could very well be complicit in voter fraud,” Dallas Woodhouse, executive director of the state GOP, said in an interview. “The schools have to take everybody, including people who are not citizens. And there’s peer pressure that everyone else is filling these forms out. The schools unintentionally may have registered people who are not eligible voters.”

“Since the 2010 Republican landslide, the state legislature has operated like a perpetual-motion catapult, hurling one measure after another to reengineer the electoral landscape and seeing what sticks in court.”

In reality, fraud is rare in North Carolina. Between 2000 and 2012, the State Board of Elections reported two credible cases of impersonation fraud, the crime that voter-ID laws are designed to prevent. Another 58 fraud cases involved non-citizens. There were about 500 cases of double-voting, felon voting, and vote-buying. During the same period, 21 million votes were cast. “Provable fraud was much less than round-off error,” wrote J. Morgan Kousser, a historian at the California Institute of Technology, in an expert-witness report for the League of Women Voters of North Carolina.

As for teen preregistration, Kousser wrote, “There were no reports of fraud in this classic civic consciousness program.”

Debating VIVA, Democrats proposed another motive. “This is about voter suppression,” said Representative Garland Pierce, then-chair of the Legislative Black Caucus. “The party of power is making an attempt to hijack the ballot box.”  Nonetheless, the legislature ratified the bill on a near-party-line vote three days after it emerged from committee. Pierce’s words would prove prescient.

By the time VIVA was passed in 2013, Anita Earls had spent a quarter-century immersed in civil-rights law. Early in her career, working for the North Carolina firm founded by civil-rights pioneer Julius Chambers, she took on exclusionary voting systems in local governments.

“What I got excited about was being able to go to communities where black voters had not been able to elect a candidate of choice, and to change the method of election, and then the black community would be able to elect leaders,” she said. “The same people who were coming to me to bring a voting-rights rights lawsuit had been organizing to integrate their library, or doing sit-ins and marches about segregated schools.”

Earls came to recognize that North Carolina is a battleground for voting rights because it’s both deeply purple and in transition. “It boggles the mind sometimes when I talk to my colleagues from Mississippi,” she said, because the threat there is less extreme. “How did North Carolina get worse than Mississippi for voting rights? The ‘how’ is that we’re at that tipping point, and so there’s a hard fight to hold onto power.”

“How did North Carolina get worse than Mississippi for voting rights?” asks Earls. “The ‘how’ is that we’re at that tipping point, and so there’s a hard fight to hold onto power.”

Following the 2013 Shelby County decision, the front line in that battle was the legal wrangling over VIVA. Three federal lawsuits challenging the law — filed by the North Carolina NAACP, the League of Women Voters of North Carolina, and the Obama administration — were merged into a single case. The Southern Coalition for Social Justice, which Earls founded in 2007, represented the League. She worked on the case but not as the lead attorney.

As the trial began in Winston-Salem in 2015, thousands rallied near the federal courthouse. “This is our Selma,” the Rev. William Barber II, then-president of the state NAACP and leader of the Moral Monday movement, told protesters. “Everything they fought for is under attack.” Inside, voters took the stand to describe the hardships created by the new law.

Terrilin Cunningham, a minister who was juggling three jobs, testified that she had tended to a sick church member on Election Day 2014, and then visited the wrong precinct on the way to work. She cast a provisional ballot but later learned it wouldn’t count. “It really caused me pain,” she said.

The state argued that VIVA did not depress registration or turnout. U.S. District Judge Thomas Schroeder agreed. “Minorities enjoy equal and constitutionally-compliant opportunity to participate in the electoral process,” he wrote in a 485-page opinion. Blacks now outpaced whites in voter registration, 91 to 84 percent, which to Schroeder meant that VIVA wasn’t harming them.

Three months later, the 4th U.S. Circuit Court of Appeals overturned Schroeder’s ruling, shredding the state’s claim that no suppression was intended. The court held that, in fact, the opposite appeared to be the case. “Before passing that law,” wrote Judge Diana Gribbon Motz, “the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.”

After the U.S. Supreme Court issued its Shelby County decision abolishing preclearance, she noted, “the General Assembly completely revised the list of acceptable photo IDs, removing from the list the IDs held disproportionately by African Americans, but retaining those disproportionately held by whites.” (Later, The Washington Post published an email from a University of North Carolina official to his staff: “I was asked by a State Representative about the number of Student ID cards that are created and the % of those who are African American… He needs it in 2 hours or less.”)

“The new provisions target African Americans with almost surgical precision,” Motz wrote. “This sequence of events — the General Assembly’s eagerness to, at the historic moment of Shelby County’s issuance, rush through the legislative process the most restrictive voting law North Carolina has seen since the era of Jim Crow — bespeaks a certain purpose.” With that, she ordered the lower court to throw out the challenged provisions.

The 2016 elections showed the extent to which North Carolina’s electorate was evenly split. The results were a mixed bag for both parties. President Donald Trump carried the state with less than half the vote, and Republicans maintained their control of the General Assembly. But Republican Governor Pat McCrory — damaged by the economic backlash against House Bill 2, the anti-transgender “bathroom bill” — lost his reelection bid to Democrat Roy Cooper.

The GOP also lost its majority on the state Supreme Court, which was elected without party labels. Just one seat was up for grabs, and Democrat Mike Morgan’s victory over a Republican incumbent shifted the court’s balance.

North Carolina Republicans mobilized after their 2016 defeats. They claimed “massive” fraud and challenged the legitimacy of individual voters. Those individual challenges proved false. Still, Woodhouse insisted that new restrictions were needed. “Whether there’s widespread voter fraud or not,” he told me at the time, “the people believe there is.”

“Then, in 2010, the Republican State Leadership Committee’s Redistricting Majority Project (REDMAP) swung into action, targeting key swing states across the country. North Carolina was a special priority. The party spent more than $1.2 million to flip the partisan composition of North Carolina’s legislature, and succeeded.”

Lawmakers, in Raleigh to deal with Hurricane Matthew, stripped the new Democratic governor — who already lacked common executive powers like a line-item budget veto — of additional authority. They limited his oversight over K-12 education and seized his authority to appoint trustees to the state’s regional university campuses. They also overturned a law giving the governor’s party a one-vote majority on state and county elections boards. It was a power grab, and some lawmakers made that explicit: The new measures, Representative Lewis told reporters, would “establish that we are going to continue to be a relevant party in governing this state.”

The biggest push, though, involved changing how judges are selected. Some of the more audacious efforts fizzled, including a proposal to end judicial elections altogether and a bill effectively nullifying the last election by terminating all judges’ service in 2018.

Others passed and survived litigation. In December 2016, weeks after the GOP lost its state Supreme Court majority, lawmakers voted to make those races partisan, as they had been before 2004. Republican leaders argued that party labels would engage more voters. They acknowledged that GOP candidates would benefit: Ten percent fewer North Carolinians voted in the state Supreme Court race, which Democrat Morgan won, than in the partisan Court of Appeals races, which Republicans swept.

“It’s one of the things that burns my butt,” said the GOP’s Woodhouse. “We get accused of wanting to have voter ID to disenfranchise voters, which of course we vehemently disagree with… Nobody has disenfranchised more voters in this state than Democrats when they took partisan affiliation off the ballot for judges.”

The legislators’ next move seemed to defeat the purpose of partisan elections: In October 2017, they voted to cancel the 2018 party primaries for judgeships. Republican leaders insisted they needed more time to draw new judicial-district maps and to consider changing how judges get picked. Critics saw another motive: Abolishing the Supreme Court primary would potentially create a general-election free-for-all in which Democrats would split the vote, handing Republican incumbent Barbara Jackson another term.

“Canceling an election is a pretty big deal,” said Price Kromm, who is politically unaffiliated. “That’s something two-bit dictators in third-world countries do.”

If dividing the Democratic vote was indeed part of the Republicans’ reason for canceling the primary — and, in fact, a GOP-linked group tried to recruit Democratic judicial candidates, according to the NC Insider news service — they must have been disappointed when Anita Earls emerged as the party’s sole candidate.

By then, Earls was an accomplished lawyer, known for challenging lopsided redistricting schemes. She considers this a pillar of the voting-rights struggle. “The twin tactics of restricting access to the ballot and diluting the voting strength of certain voters compared to others — those have been used in various forms since before the Civil War,” she said.

“The new provisions target African Americans with almost surgical precision,” wrote federal judge Diana Gribbon Motz.

Earls represented 31 voters in Covington vs. North Carolina, a 2015 federal lawsuit that claimed Republicans had stuffed African American voters into “bizarrely shaped and highly non-compact” legislative districts after the 2010 census. This practice, called “packing,” is designed to quarantine black voters within a small number of districts, limiting their power elsewhere.

In 2016, a three-judge federal panel ruled for Earls’ clients, saying the state had caused “severe constitutional harms” to “thousands” of North Carolinians by creating 28 “racially gerrymandered” districts. A new map, revised by a court-appointed special master, is being used for the 2018 election — seven years after the lines were initially drawn.

While the courts have long frowned on racial gerrymandering, they’ve taken a more standoffish view toward partisan gerrymandering. North Carolina Republicans have capitalized on that jurisprudential silence. “Our intent is to use the political data we have to our partisan advantage,” Lewis said at a meeting about the state’s congressional map. Republicans would hold 10 of the 13 U.S. House seats, he said, “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

In 2017, Earls filed a lawsuit, on behalf of the League of Women Voters of North Carolina, calling the congressional map “both unconstitutional and profoundly undemocratic.” It was consolidated with a case filed by Common Cause. They were two of several cases — others emerged from Wisconsin and Maryland — trying to break through the courts’ reticence on partisan gerrymandering.

Last August, a federal three-judge panel agreed with the plaintiffs and ordered new districts. “The Constitution does not allow elected officials to enact laws that distort the marketplace of political ideas so as to intentionally favor certain political beliefs, parties, or candidates and disfavor others,” wrote Judge James Wynn Jr. of the 4th U.S. Circuit Court of Appeals. State officials appealed the ruling, and the case is now pending in the U.S. Supreme Court.

 

Over 300 people attend Fair Courts Day of Action on Jan. 10, 2018 in Raleigh, North Carolina. (Photo: Jenny Warburg)

These legal confrontations make Earls’ candidacy feel personal for both sides. “She’s been in charge of pulling away the mask and exposing to the court what the real intentions are,” said Democratic state Senator Jeff Jackson, an Earls supporter and a leading voice against gerrymandering. “She knows the score. And she’s going to tell everyone what the score is. And she’s going to call balls and strikes. That’s what they should find scary.”

The Republicans have responded with unchained ferocity — focusing not on Earls’ voting-rights activities, but rather on her criminal defense work and her support for an erstwhile law allowing death-row inmates to present evidence of racial bias in their sentencing. A GOP-funded mailing and website feature a photograph of Earls sitting next to a defendant she once represented, her eyes robotic and her skin several shades darker than in real life. “Dangerous Anita Earls,” the headline reads.

Beyond the campaign rhetoric, Republicans took the defiant step of changing election laws after the campaign had already begun. First, the General Assembly passed a measure ensuring that Earls’ name would appear below Barbara Jackson’s on the ballot. (The bill was ratified before filing began but after Earls announced her candidacy and proved her fundraising chops.) Then, when a second Republican entered the race, it tried to alter the ballot again so he wouldn’t siphon votes from the incumbent.

Chris Anglin, the third candidate, calls himself a “constitutional Republican” who opposed the “constant assault on the independent judiciary.” He says he voted for George W. Bush and Republican Governor McCrory. But just three weeks earlier, he had been a Democrat. Republicans called him a spoiler. Woodhouse called him “the enemy.”

“These guys are not messing around,” Anita Earls says. “They spend all their time figuring out how to stay in power.”

Republicans knew this was a possibility when they canceled the 2018 judicial primary. During a court hearing on that law, U.S. District Judge Catherine Eagles asked GOP attorney Martin Warf whether it might make sense to have a 90-day “truth test” to prevent candidates from switching parties right before filing. Warf, who represented legislative leaders, rejected the idea. “The party has the ability to come back and say, ‘We like Person A,’” he said — that is, the party’s endorsement would cut through voters’ confusion.

Now that this prospect had a face, Republicans reversed their stance. In July, they convened a special session and passed a bill erasing from the ballot the party affiliations of recent converts like Anglin.

The bill’s opponents called this a violation of democratic norms. “There is no way that, after the rules are established and after you know who the candidates are, that you can go back and try to give a candidate a strategic advantage,” said McKissick, the senator. “It offends our basic principles of fairness.”

Anglin sued. A judge found in his favor and restored his party label to the ballot.

Woodhouse, the GOP director, insists the measure was appropriate, because the legislature “erred” earlier in not weeding out last-minute party switchers. “The voters should not be punished for legislative sloppiness,” he said.

Would the General Assembly have changed the law if it the spoiler were a Democrat? “Probably not,” Woodhouse said. “I don’t dispute all of this is a political system.”

Besides the state Supreme Court race, there are three constitutional amendments on the November ballot that could further compromise voting rights in North Carolina and consolidate Republican power.

One takes a new run at voter ID. The other two would give legislators control over appointments to the state elections board and to fill judicial vacancies. Currently, the governor controls those appointments.

The biggest drama, though, could come after the election. Under current law, the Democrats are pretty much guaranteed a state Supreme Court majority until 2022. That means they’ll get first crack at state redistricting challenges after the 2020 census. There is widespread belief — which Republicans have done little to tamp down — that legislators will add seats to the state Supreme Court if the constitutional amendment on judicial appointments passes, and if Barbara Jackson wins reelection. That would give the Republicans a 5-4 edge.

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During the House debate on that amendment last June, Representative Darren Jackson, a Democrat, proposed two tweaks that would have discouraged the court’s expansion. Both failed in a near-party-line vote. Afterward, he stood and scolded his Republican peers.

“It’s become clear to me that this bill is nothing but a court-packing scheme,” he said of the proposed amendment. “If Anita Earls loses the Supreme Court race in November, you’re planning to add two more justices to the North Carolina Supreme Court and have the legislature select them, and not have them on the ballot until 2022.

“Am I wrong?” he continued. “Anyone want to call me, stand up and say I’m wrong?”

No one refuted him directly. Later in the debate, Lewis said, “To view this as anything other than a genuine attempt to find a way to fill judicial vacancies is just plain wrong.”

Then, in August, the GOP’s own state director floated the idea of court-packing — and more. By then, Governor Cooper and the state NAACP had both sued to remove some of the constitutional amendments from the ballot. If either plaintiff prevailed, Woodhouse wrote on Facebook, “I believe there will be a very visceral reaction from voters and our activists to having their right to vote on amendments blocked.” The result, he wrote, could be extreme measures to rein in state judges: adding court seats, amending the state constitution to “clarify” judges’ powers — “and yes,” he wrote, “impeachment.”

Four days later, a Superior Court judge temporarily yanked the proposed amendments on judicial and elections-boards appointments from the ballot, saying the language of the measure “does not sufficiently inform the voters.” Before the amendments were restored, the legislature removed a provision stripping from the governor the power to make thousands of appointments to state boards and commissions.

As a judicial candidate, Earls said, she cannot discuss the voter-ID and election-board amendments. She is, however, free to discuss the judicial-vacancy amendment. She said that packing the court is only one of legislature’s goals. “They [also] want to end election of judges,” she said. “This constitutional amendment is a first step.”

“These guys are not messing around,” Earls said. “They spend all their time figuring out how to stay in power.”

Last May, Earls sounded the alarm in the mountain town of Hendersonville, North Carolina. “I don’t think it’s an exaggeration to say that our democracy is in peril right now,” she said at a Democratic Party awards luncheon. “We have people in power, making public policy, who don’t think that it’s important to have every voice heard in the process.”

What’s particularly disheartening about these attacks is that, until recently, North Carolina’s state government had enjoyed a half-century’s worth of moderate, bipartisan consensus that was generally pro-business, pro-education, and pro-civil rights. When Republicans took control of the legislature in 2011, they veered away from that consensus and instituted more divisive, extremist governance.

“We should be a national model for how a 50-50 state should work,” said Jeff Jackson, the Democratic state senator and Earls supporter. “Instead, we’re a model for ‘holy cow, these guys are out of control.’”

And it could be a model for other swing states. In Ohio, the legislature shortened early voting in 2014 and eliminated the “Golden Week” period of same-day registration and voting. The Ohio law, introduced three months after North Carolina passed VIVA, was later upheld by the 6th U.S. Circuit Court of Appeals.

“North Carolina has been the guinea pig for experiments that have been deployed nationwide,” Senator Jackson said. “Virginia, Florida, Ohio, Michigan, Pennsylvania: I would love to sit down with the people of these states and say: Just as you’ve been reading headlines about crazy stuff going on in North Carolina to roll back basic elements of our democracy, believe me when I tell you it can happen where you live.”

Image at top: Anita Earls speaks at a rally in Raleigh, North Carolina, on January 20, 2018. (Photo: Jenny Warburg)

Barry Yeoman is a freelance journalist living in Durham, North Carolina. He has covered North Carolina politics for more than 30 years.

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