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Incoming Gov. Josh Stein will start out his term as North Carolina's chief executive much the same way his predecessor and fellow Democrat Roy Cooper did, battling the Republican-led legislature in court. But Stein faces a much more slanted playing field than Cooper did.

Right out of the gate, after his slim victory over Republican Pat McCrory in 2016, Cooper had to fend off a GOP legislative power grab. Republican lawmakers held a lame-duck session and sought to restructure the North Carolina State Board of Elections and take away the governor's authority to appoint a majority of the board members. McCrory signed the bill on his way out the door of the governor's mansion.

Ultimately, halfway through Cooper's first term as governor, the state Supreme Court, then composed of a 4-3 Democratic majority, struck down the legislation as a violation of the North Carolina Constitution's separation of powers.

Not to be deterred, Republicans, who hold a majority in the North Carolina General Assembly, used a lame-duck session this year to draft aimed at shifting powers away from a host of executive branch offices, particularly ones where Democrats won in the general election.

"It's a massive reorganization of who controls the levers of power in North Carolina government," said Chris Cooper, professor of political science and director of the Haire Institute for Public Policy at Western Carolina University.

Stein has sued over the GOP law, with more suits to follow

The legislation came in the guise of a disaster relief bill. In its first dozen pages or so, the shifts around existing funds, that cannot be spent until appropriated by the General Assembly, for recovery from Helene's impact on western North Carolina. But the bulk of the legislation goes on to alter authority over the state elections board, restrict the ability of the Attorney General to oppose legislators in court, and prevent the superintendent of public instruction from exerting any control over charter schools.

Republican lawmakers also eliminated two superior court seats held by Democrats who previously have ruled against GOP-backed legislation.

So far, Cooper and Stein have filed a lawsuit — and recently expanded its scope — in state Superior Court, challenging a few provisions of the new law and assailing the parliamentary tactics GOP legislative leaders used in getting it passed. The challenged provisions move the North Carolina State Highway Patrol out of the Department of Public Safety, an executive agency overseen by a gubernatorial appointee, and switch oversight of elections administration to the office of the state auditor.

Under the new legislation, the state highway patrol commander would be a cabinet-level appointed by the governor but subject to legislative confirmation.

The incoming state auditor, Dave Boliek, is a Republican. As Stein and Cooper's lawsuit points out, the state auditor's office has never played any role in administering North Carolina elections. And, the lawsuit alleges, it appears North Carolina would be the only state to have elections overseen by the state auditor.

"The State Auditor’s only qualification for this newly assigned role is obvious—he’s a Republican with demonstrated fealty to Legislative Defendants," the lawsuit further argues.

As noted in Stein and Cooper's lawsuit, Republican legislative leaders skirted public debate and avoided amendments to the challenged law by using a process known as "gut and replace," where lawmakers took an existing bill—in this case one that sought to amend dentistry laws—and replaced the language with the new provisions.

What's more, the Stein complaint argues, the Republican-led legislature overrode Governor Cooper's subsequent veto during a lame duck session held after voters elected Stein, a Democrat, by a wide margin to be the state's next chief executive.

Republicans engaging in 'sore-loser' politics, professor says

Professor Cooper said the GOP maneuvers are driven by two things: "One, the Republicans are about to lose their super-majority, and two, the Democrats are about to be in charge of the most important offices on the Council of State."

For the past couple of years, Republicans in the North Carolina General Assembly have held a veto-proof majority. While a few tight legislative races from this fall's general election are being challenged by GOP candidates, it looks like Democrats won enough seats to break the GOP super-majority in the state House when lawmakers convene for the 2025 session. That is why Republicans scrambled a few weeks ago to draft their latest power-grabbing bill and then, after it was vetoed by Governor Cooper, voted to override him.

"It's just kind of a sore-loser form of politics," said Steven Greene, who teaches political science at North Carolina State University. "That you didn't get the result you wanted, so you're going to change things to take power away held by the other party."

While Donald Trump took North Carolina on his way to victory in this year's presidential race, Democrats won statewide races for governor, lieutenant governor, attorney general, and superintendent of public instruction. A Democratic incumbent justice on the state Supreme Court also won re-election by more than 700 votes — as confirmed by recounts — but the Republican challenger is seeking court intervention to throw out more than 60,000 ballots.

Republican lawmakers immediately took aim at curtailing the authority of offices that will be held by Democrats starting next month. In addition to the changes already mentioned, the new law takes away gubernatorial discretion in appointing replacements for vacant judicial seats.

Additionally, under the new law, the state attorney general — an office that will be held by Democrat Jeff Jackson, who defeated Republican Dan Bishop in this year's general election — may not take any position against the legislature in court. That provision is notable since, in 2020, as attorney general, Josh Stein settled litigation with voting-rights groups over GOP-backed elections law over the vehement objections of Republican lawmakers.

Stein faces a more conservative state Supreme Court

The latest law passed by North Carolina Republicans "exemplifies a trend of escalating 'power plays' in state governments, where officials pursue institutional changes for partisan gain," Derek Clinger, staff attorney at the University of Wisconsin School of Law's State Democracy Research Initiative, wrote in a recent article.

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Clinger noted that these kinds of separation-of-power battles tend to occur in states with divided governments. In 2018, Wisconsin's Republican-controlled legislature sought to curtail the power of the incoming governor, lieutenant governor, and attorney general after Democrats won those offices. In 2018, 2019, and 2022, respectively, Republican lawmakers in Michigan, Kentucky, and Ohio responded similarly to Democratic electoral victories.

And, it should be noted, Democrats in North Carolina, who long dominated the legislature and state executive offices prior to 2010, were not above the partisan power move. In 1976, Democratic Gov. Jim Hunt beat Republican nominee David Flaherty and promptly sought the resignation of dozens of state employees—who had been working in the administration of GOP Gov. Jim Holshouser—a move Republicans called the "Christmas Massacre."

In 2000, the Democratic-led legislature passed legislation expanding the North Carolina Court of Appeals, which allowed the outgoing governor, Democrat Jim Hunt, to appoint more judges. But the legislation was not taken up in a lame-duck session and Hunt was succeeded by another Democrat, Mike Easley.

Derek Clinger told ¹ÏÉñapp he believes the latest GOP machinations in North Carolina exceed the scope of prior and contemporary examples of power grabs, especially since it flies in the face of this year's electoral results.

"The legislature is changing the duties and powers of these offices right after the voters elected folks to these offices," Clinger said.

Governor Cooper has mostly succeeded in parrying legislative attacks on his executive authority. As mentioned, a Democratic majority on the state Supreme Court ruled in his favor over a Republican-drafted bill to restructure the state elections board, finding the legislation violated the North Carolina Constitution's separation of powers.

Then, in 2023, a state Superior Court found in the Cooper Administration's favor after GOP lawmakers passed yet another bill to take away gubernatorial authority over the state elections board. Republican lawmakers appealed that decision but now have asked for their appeal to be dismissed because their new law — the one now being challenged by Stein and Cooper — rendered the previous one moot.

Stein, the incoming governor, faces a much less hospitable judicial landscape than Cooper did when he took office in 2017. Republicans now hold a 5-2 majority on the state Supreme Court, where Stein's lawsuits over GOP legislation are sure to end up.

"The current majority doesn't feel bound by prior decisions," said the University of Wisconsin's Derek Clinger. "I think that's evidenced just from last year, when the court reversed two pretty big decisions from just the year before involving redistricting issues and voter ID issues."

Clinger said it's also worth noting that now Chief Justice Paul Newby was an associate justice in 2018 and dissented when the court's majority found GOP lawmakers had violated the constitutional separation of powers in their effort to seize control over the state elections board.

And this time around, at least in the case of changes to elections administration, rather than craft a law that moves power from the executive branch to the legislative branch, the legislation removes power from the chief executive and shifts it to another executive office.

This story has been corrected to note that in 1976, Democratic Gov. Jim Hunt beat Republican nominee David Flaherty.