On November 6, Democratic gubernatorial candidates dismantled three GOP trifectas: states where the governorship, senate, and house are all currently in Republican hands. In Kansas, longtime state senator Laura Kelly defeated far-right firebrand Kris Kobach. In Michigan, Democrat Gretchen Whitmer will succeed incumbent Republican governor Rick Snyder. In Wisconsin, school superintendent Tony Evers ousted governor Scott Walker. Progressives may be somewhat disappointed that they didn’t win in more places. But given that the Democratic Party has been hollowed out over the last decade, these victories are a cause for celebration.
So, naturally, here’s how Republicans could quickly swindle these incoming Democrats. In the next few weeks, the outgoing GOP governor of each dissolving trifecta could call a special legislative session and, in cahoots with the leader of the state house and senate, rapidly pass a series of bills that strips their successor of power.
This may sound impossible, but it’s happened before.
In 2016, Republican North Carolina Governor Pat McCroy lost re-election to Democrat Roy Cooper by 10,277 votes. Having failed to stop Democrats through democracy, McCroy and the GOP-controlled state legislature thwarted the voters’ will through other means. In mid-December—before Cooper took office—state Republicans hastily called a special session during which they rammed through legislation that deprived the governor authority over elections and appointments. The General Assembly merged the State Board of Elections and the State Ethics Commission into one entity and changed its appointment process to prevent Cooper from significantly altering the commission’s partisan balance. The legislature also required that the state senate confirm many of Cooper’s appointees. Finally, it reduced the number of government employees Cooper could hire and fire by more than 1,000, crippling the governor’s ability to change his staff’s political allegiance.
Cooper sued the legislature, arguing that the new restraints violated the North Carolina state constitution. The courts have blocked some of the new laws. But much of it remains tangled in appellate litigation, and Cooper’s tenure has been consumed by fights over the scope of his own authority. In April 2017, for example, the GOP-controlled legislature passed a bill that would reduce the state’s Court of Appeals from 15 to 12 judges, which would prevent Cooper from filling the court’s next three vacancies. (Cooper vetoed the bill, the legislature overrode his veto, and the bill’s constitutionality is now being disputed in court.)
“What I would hope is that the lesson that Republican lawmakers would learn from the North Carolina experience is: do not do this again, because the big losers in these interparty partisan fights are average citizens who need a functioning government,” said Ciara Torres-Spelliscy, a constitutional law professor at Stetson University and a fellow at the Brennan Center for Justice. “But, being a realist, it is entirely possible that the lesson that Republican partisans take away from North Carolina is not the lesson that I would take.”
It is, to say the least, not difficult to imagine Republicans sacrificing functional governance to sabotage Democrats. The GOP stonewalled Barack Obama, blocking his final Supreme Court nominee, Merrick Garland, from receiving so much as a hearing—an effort for which the party was rewarded handsomely when Donald Trump appointed Neil Gorsuch instead.
“If there’s political gain to deadlock, then deadlock I think can be seen as a second-best win to actually winning an election,” Torres-Spelliscy said.
If Republicans in newly blue states do opt for a similar lame-duck legislative coup, they will have other options. Kansas’ governor, for example, appoints more than 1,000 individuals to serve on Kansas’ boards and commissions. But the state constitution allows the legislature to “provide for the election or appointment of all officers and the filling of all vacancies not otherwise provided for in this constitution.” It’s therefore conceivable that the GOP will restrict Kelly’s ability to appoint her own staff. Similarly, the Michigan state constitution declares that “the term of office and procedure” for removing executive department heads “shall be as prescribed in this constitution or by law” (emphasis mine), giving the GOP a possible opening to prevent Whitmer from fully altering the politics of the executive branch.
These moves would almost certainly be challenged in court, but Republicans in North Carolina did not seem deterred by protracted litigation. Indeed, it’s not unthinkable that GOP legislators will attempt to strip governors of powers that are even clearly enshrined in state constitutions.
Perhaps the most cynical possibility is that Republicans would use the waning days of unified control to cut governors entirely out of the 2020 redistricting process. That would require a generous reading of state constitutions, but the process itself would be relatively clear. While Michigan voters just passed an amendment that will likely end gerrymandering, neither the Kansas nor Wisconsin constitutions have provisions that seriously limit the ways in which the legislature draws district, In a special session, those bodies and the governor in either state could pass a law that endows the state legislature’s apportionment power to an “independent” redistricting commission, with members selected by the legislature or governor. It could then quickly choose all the members of the commission to ensure that the redistricting process stays in Republican hands.
Such a plan would certainly instigate a legal fight, and those moves might very well be overturned—both the Kansas and Wisconsin constitutions require that the legislature draw district boundaries. But in 2015, the U.S. Supreme Court found that an Arizona ballot initiative creating an independent redistricting commission did not run afoul of the Elections Clause of the American Constitution, which requires that the “Times, Places and Manner of holding Elections for Senators and Representatives Shall be prescribed in each State by the Legislature thereof.”
Ultimately, then, the most effective check on GOP efforts to undermine new Democratic governors might be popular opinion. “I think that in those states Republicans will look to see what they can do,” said Rick Hasen, an election law expert and law professor at the University of California, Irvine. “But they also have to look to see if doing those things will cause a backlash.”
Hopefully, the election results serve as a strong deterrent. In North Carolina, Republicans put forth two ballot initiatives that, if passed, would have significantly restricted the governor’s authority. Both were roundly voted down, and one of them—which would have reshaped how the state appoints people to the board of elections—was directly related to the legislature’s failed attempt to seize Roy Cooper’s power by fiat.
But even as Democrats won control of the House and flipped important governorships, the 2018 midterms were not an unambiguous rejection of the far-right playbook. Senate losses and Democratic near misses helped showcase just how partisan and bitterly divided the U.S. remains. Progressives in Kansas, Michigan, and Wisconsin ought to be on the lookout for hardball tactics.