Current, future North Carolina governor’s challenge of power-shifting law could be first of many

RALEIGH, N.C. — North Carolina Gov. Roy Cooper and Gov.-elect Josh Stein on Thursday challenged the constitutionality of a portion of a law enacted just a day earlier by the Republican-dominated General Assembly that erodes Stein’s powers and those of other top Democrats elected to statewide office last month.

Stein, the outgoing attorney general, and Cooper, another Democrat leaving office shortly after eight years on the job, focused their lawsuit in Wake County Superior Court on a provision that would prevent Stein from picking his own commander of the State Highway Patrol. If that portion of law is allowed to stand, the current commander appointed by Cooper more than three years ago could be poised to stay in place through June 2030 — 18 months after the expiration of the term Stein was elected to.

The lawsuit said the provision would give the current commander, Col. Freddy Johnson, an exclusive five-year appointment. It also would prevent the governor from ensuring state laws are faithfully executed through his core executive and law enforcement functions, since the commander would be effectively unaccountable, the lawsuit said.

“This law threatens public safety, fractures the chain of command during a crisis, and thwarts the will of voters,” Stein said in a news release. “Our people deserve better than a power-hungry legislature that puts political games ahead of public safety.”

The lawsuit seeks to block the General Assembly’s restriction on the appointment while the litigation is pending and to ultimately declare the provision in violation of the North Carolina Constitution.

More court challenges are likely.

The full law was given final approval Wednesday with a successful House override vote of Cooper’s veto. It also shifts in May the appointment powers of the State Board of Elections from the governor to the state auditor — who next month will be a Republican. The powers of the governor to fill vacancies on the state Supreme Court and Court of Appeals also were weakened. And the attorney general — next to be Democrat Jeff Jackson — will be prevented from taking legal positions contrary to the General Assembly in litigation challenging a law’s validity.

The Highway Patrol has been an agency under the Cabinet-level Department of Public Safety, with the leader of troopers picked to serve at the governor’s pleasure. The new law makes the patrol an independent, Cabinet-level department and asks the governor to name a commander to serve a five-year term, subject to General Assembly confirmation.

But language in the law states initially that the patrol commander on a certain day last month — Johnson is unnamed — would continue to serve until next July and carry out the five-year term “without additional nomination by the Governor or confirmation by the General Assembly.” Only death, resignation or incapacity could change that.

This configuration could result in the “legislatively-appointed commander” feeling empowered to delay or reject directions of the governor because his post is secure, the lawsuit said.

Spokespeople for House Speaker Tim Moore and Senate leader Phil Berger didn’t immediately respond Thursday evening to an email seeking comment on the lawsuit. Neither did Johnson, through a patrol spokesperson. All three leaders, in their official roles, are named as lawsuit defendants.