Republicans who control legislatures in key states around the country are moving to seize power from Democratic executive officers and independent judges, enraging Democrats, who say the moves undermine the will of voters.
Republicans defend the proposals as steps necessary to balance power between branches of government — and analysts say the GOP is doing now what both Republicans and Democrats have done since the founding of the republic.
In North Carolina, the Republican-led legislature is debating three measures that would limit Gov. Roy Cooper’s (D) ability to appoint state and local judges. Kentucky Republicans are advancing a bill to block the state’s attorney general, a Democrat, from filing civil lawsuits.
“It’s probably part of a national effort like we’ve seen over this entire decade, of plans formulated from afar to amass as much power as possible in the hands of Republican legislators across the country,” said North Carolina Sen. Dan Blue, the leader of the Democratic minority.
The fight in North Carolina is only the latest in a series of battles Republicans have waged to curtail Cooper’s powers, which began just weeks after he won election in November. In February, a state court blocked a Republican-backed measure requiring Cooper to seek legislative approval for his Cabinet nominees. The legislature also passed measures curtailing Cooper’s power to appoint members of state and county boards of elections.
One of the new proposals would reduce the size of the North Carolina Court of Appeals from 15 judges to 12. Two others would give the legislature, rather than the governor, the power to appoint superior and district court judges.
State Rep. Justin Burr (R), who sponsored all three measures, said they are necessary to reinstate a balance of power that has tilted toward the executive branch in recent years.
“The legislative branch of government is closer to the people of our state than I believe the executive branch is. We come from 170 districts all over North Carolina,” Burr said. “Traditionally, this is a state where the legislative branch has pretty strong muscle in terms of the ability to implement and move forward policy.”
In recent years, Burr said: “We have seen too much of a shift in power to the executive branch.”
Virginia and South Carolina are the only other states that vest the power to pick judges in the legislature, rather than the governor. Democrats say Republicans in North Carolina are taking political opportunism to new heights.
“Their argument about the governor is that the executive is a separate branch of government, but it’s not equal,” Blue said.
In Arizona, Ducey and state legislative Republicans have moved to consolidate power in the governor’s office, and to add two new judges to the state Supreme Court. The court in recent years has frustrated Republicans, ruling in favor of voter-passed ballot measures the legislative majority opposes.
“It’s kind of just a buffet of power grabs,” Arizona state Rep. Ken Clark (D) said. “Under the auspices of reducing the size of government, making it, quote unquote, run more like a business, they are trying to coalesce power.”
Ducey’s office did not respond to a request for comment. Arizona House Speaker J.D. Mesnard (R), who sponsored the measure to add new judges to the Supreme Court, was not available for comment.
Georgia’s state House last month passed a bill to redraw eight Republican-held districts, most of them in the Atlanta suburbs, where incumbents won reelection by narrow margins this November. The state Senate, which is also controlled by Republicans, has yet to act on the proposal, which would then go to Gov. Nathan Deal (R) for a signature.
Experts said legislatures and executives rewriting the rulebook to claim more power at the expense of their political rivals is nothing new. Throughout the Gilded Age, legislators frequently drew new district lines to consolidate their power — until the opposition party won control and redrew their own lines.
“This is the oldest trick in the political book, writing the rules to win the game,” said Thad Kousser, a political scientist at University of California San Diego and an expert on state legislative politics. “Politicians are never committed to reform in the abstract. There’s always some near-term political gain that they get out of political reforms.”
Kousser pointed to Franklin Roosevelt’s scheme to pack the Supreme Court with justices who would rule in favor of his New Deal-era programs. Later, Republicans led efforts to end so-called fusion voting laws, allowing candidates to run on multiple party lines, which enabled Democrats to align with minor liberal parties to earn more votes. And both parties routinely engage in partisan gerrymandering to secure seats.
More recently, Republicans pointed to Democratic-led legislatures in states like Massachusetts and New Jersey, which changed the rules governing appointments to vacant United States Senate seats aimed at curtailing the powers of Republican governors.
In Nevada, Democrats who took control of the state Senate by a margin of just three seats passed new rules this year aimed at blocking Lt. Gov. Mark Hutchison — a Republican — from casting a tie-breaking vote.
“In our constitutional government, there is always a push and pull on power between the three major branches,” said David Avella, president of GOPAC, which recruits and mentors Republican legislative candidates. “While some see Republican legislators asserting their power on executive responsibilities, others will see the judges asserting their power in redistricting cases against Republican legislators.”
But politics is cyclical, and today’s majority may be tomorrow’s minority. Democrats who win back control of state legislatures — midterm elections are rarely kind to an incumbent president’s party — will face the tantalizing allure of writing their own rules once they return to power. That, Kousser said, should be a consideration for Republican majorities today.
“Is this the first step in an ever-escalating partisan battle?” Kousser asked. “If the shoe’s on the other foot, if we lose power, are we going to face a backlash?”
That’s the question being asked in the United States Senate, where Majority Leader Mitch McConnellMitch McConnellScarborough: Bannon trying to ‘help his falling standing’ in WH Hatch: I may retire if Romney runs to replace me How the GOP’s ‘Access to Care’ bill cuts down states’ rights MORE (R-Ky.) has resisted calls to end filibuster rules for Supreme Court nominees, even after former Democratic Majority Leader Harry ReidHarry ReidRepublican failure Senate about to enter 'nuclear option' death spiral Top GOP senator: 'Tragic mistake' if Democrats try to block Gorsuch MORE (D-Nev.) limited the filibuster for other presidential nominees.
In state legislatures, long-term thinking is rarely rewarded, Kousser said.
“Careers are shorter in state legislatures overall, and careers have an end date baked into them in states with term limits,” he said.