Threats From Political Minority Rule in Wisconsin and North Carolina

The United States has been on a long arc toward achieving a multiracial democracy that can effectively represent all Americans, including long-marginalized communities. Yet opponents of a more pluralistic democracy are erecting barriers at the federal and state levels designed to lock in political minority rule and slow the nation’s progress. At the state level, this aggressive countermajoritarian movement can be seen most starkly in Wisconsin and North Carolina. Despite the fact these two states are divided almost 50-50 politically, their Republican-controlled legislatures are taking unprecedented steps to draw extreme partisan legislative maps to lock in political power, limit long-held authorities of governors, pass voter suppression and election sabotage laws, and steer state supreme courts toward preferred results.

Breaking political norms to retrench political power is deeply unhealthy for the republic. However, structural reforms and other mechanisms can blunt these minority rule measures. These include banning partisan gerrymandering, establishing an affirmative legal right to vote, enacting nationwide federal standards that expand access to the ballot and thwart partisan election subversion, passing statewide ballot initiatives where that option exists, and creating a nonpartisan movement to help counter anti-democracy power grabs.

In the past six decades since the passage of the transformative Civil Rights Act and Voting Rights Act of the 1960s, the United States has evolved toward a more pluralistic democracy, where racial minorities and other long-marginalized communities have greater access to the electoral process. A diversification of the American population accompanies this evolution. By 2044, white people are projected to be the minority in the United States.¹ This increasing diversity has translated into Democrats winning the national popular vote in seven of the past eight presidential elections, partly by building coalitions of racially diverse voters, who are young, more educated, and centered in urban and suburban areas.² Conversely, core Republican support increasingly comes from voters who are overwhelmingly white, less educated, and largely rural.³ According to experts, national trends toward a more racially diverse and higher-educated electorate will continue for many years, creating electoral and policy-setting challenges for Republicans.⁴

After Republicans lost the 2020 presidential election, many Republican leaders accepted the myth of widespread voter fraud—allegedly committed predominately in racially diverse areas—and refused to accept the legitimacy of Joe Biden’s election.⁵ Over the past several years, these hyped and misplaced fears of voting irregularities and apprehension about changing demographics have been coupled with a steady assault on long-held democratic norms. Whether it be through imposing legislative barriers to free and fair elections in at least 20 states,⁶ the January 6, 2021, insurrection at the U.S. Capitol, or a U.S. Supreme Court unbound by ethics or precedent, there are some extreme conservative leaders at the federal and state levels aiming to retrench Republican political power, dilute minority voices, and ward off the danger of losing majority support in free and fair elections. These actions, in turn, create negative implications for whether popular policies, such as preserving access to abortion rights or enhancing gun safety, can be enacted at the federal or state levels.⁷ These anti-majoritarian dynamics left unchecked create a “tyranny of the minority,” in the words of democracy scholars Steven Levitsky and Daniel Ziblatt.⁸

This discussion must acknowledge the complicated interplay between majority rule and minority rights.⁹ The notion of majority rule is foundational to the republic. But the nation’s founders also designed the country’s democratic structures to value the rights of political minorities and provide healthy counterweights to majority control. These structures include the government’s system of checks and balances, a bicameral Congress that gives a powerful voice to smaller and rural states, the Electoral College, and even the Senate filibuster, which requires a supermajority of 60 votes to pass most legislation. But entrenched minority rule can go too far when it thwarts the majority’s electoral victories and policy priorities, while reducing trust in government and ultimately upending a representative government.¹⁰

This report focuses on countermajoritarian efforts at the state level, specifically in Wisconsin and North Carolina. In these states—both of which are almost equally divided between the two major political parties—Republican lawmakers, who control both chambers of their legislatures, are taking unprecedented steps to solidify minority rule for years to come. A central part of their plan has been accomplished via once-a-decade partisan gerrymandering, a practice that a conservative majority of the U.S. Supreme Court ruled in 2019 was a political question unreviewable in federal court.¹¹ While partisan gerrymandering is a weapon sometimes wielded by both major political parties, Republican-controlled legislatures in Wisconsin and North Carolina are coupling extreme gerrymandering with other mechanisms to entrench political minority rule, including voter suppression, election sabotage, the threatened impeachment of judges, and removing established powers from Democratic governors. Using multiple avenues to stack the political deck, these state lawmakers improve their party’s reelection chances and protect their preferred policies, even if a majority of voters do not support their candidates or substantive agenda.

This section focuses on two states—Wisconsin and North Carolina—where legislatures are shattering norms in a multipronged plan to entrench political minority rule. These states are on the front lines of the battle for American democracy.

Wisconsin is a closely divided state politically. It is well known as a perennial presidential battleground, where Republican Donald Trump won in 2016, and Democrat Joe Biden won in 2020, both by less than 1 percentage point.¹² The current two-term Democratic governor, Tony Evers, narrowly won elections in 2018 and 2022.¹³ In the four most recent U.S. Senate election cycles, Wisconsin has twice elected a Democrat and a Republican.¹⁴ In sharp contrast, Wisconsin’s congressional delegation is represented by six Republicans and only two Democrats.¹⁵ And the state Legislature is overwhelmingly controlled by Republicans, with the Senate led by Republicans 22 to 11, which is a supermajority; the Assembly is led by Republicans 64 to 35.¹⁶

The Legislature has taken multiple steps, often breaking well-accepted norms, to consolidate political power and reduce the chances that Democrats can win elections or enact a popular agenda, even though the state is evenly divided politically. In the words of noted voting rights expert Ari Berman, this concerted effort has created “an almost-impenetrable anti-­democracy feedback loop in a state that Joe Biden narrowly won.”¹⁷

Wisconsin’s Legislature has recently taken the following anti-majoritarian steps:

• Employing partisan gerrymandering: The central part of the Legislature’s plans to consolidate political power has been to draw state and federal district maps, beginning in 2011, to make it virtually impossible for Democrats to win a majority of legislative seats.¹⁸ Because of this, the people of Wisconsin are not receiving fair representation. By 2018, Wisconsin’s district maps were so heavily skewed that even though Democrats won every statewide race and Republicans lost the Assembly popular vote by 8 percent, Republicans won 64 percent of Assembly seats.¹⁹ As mentioned above, the legislative majority crafted Wisconsin’s most recent federal district maps to heavily favor Republicans, giving Republicans six congressional seats and Democrats two. Republicans’ most recent state legislative maps—adopted in 2021—are the subject of ongoing litigation, with the state Supreme Court set to decide the case in upcoming weeks, as discussed immediately below.²⁰ It is little wonder that experts such as Sam Wang of the Gerrymandering Project at Princeton University, conclude that Wisconsin’s maps “are among the most extreme partisan ones in the country.”²¹
• Undermining the state Supreme Court: In April 2023, Wisconsin overwhelmingly elected progressive Justice Janet Protasiewicz by 11 percentage points to the state Supreme Court with record turnout, creating a new court majority for progressives.²² Protasiewicz’s campaign focused on her general support for abortion rights, which are popular in Wisconsin, and her general opposition to the state’s unfairly drawn legislative maps.²³ Immediately following Protasiewicz’s election, Assembly Speaker Robin Vos (R) demanded that Protasiewicz recuse herself from any case considering the legality of the maps, alleging she had impermissibly prejudged the matter.²⁴ Relying on solid legal precedent, Protasiewicz refused to recuse herself when the state Supreme Court heard oral arguments about the maps on November 21.²⁵ Even after two conservative former state Supreme Court justices concluded there is no basis for impeaching Protasiewicz, Vos continues to threaten to impeach her if she votes to invalidate the maps.²⁶ Additionally, the Republican-controlled Assembly appears to have created a backup plan. In September, the Assembly suddenly passed redistricting legislation on a nearly party-line vote to have the Legislature approve new maps drawn by nonpartisan legislative staff.²⁷ Even though state Democratic officials have long called for a similar plan to require that maps be drawn by nonpartisan experts, they almost uniformly opposed this proposal based on current circumstances, “saying it’s all a ruse designed to circumvent the newly liberal-controlled Wisconsin Supreme Court from throwing out the Republican-drawn maps.”²⁸ Gov. Evers called the Assembly’s plan “bogus.”²⁹
• Attempting to fire the nonpartisan state election administrator: In September 2023, state Senate Republicans decided on a party-line vote to fire Meagan Wolfe, the nonpartisan administrator of the bipartisan Wisconsin Elections Commission. In 2019, the state Senate unanimously confirmed Wolfe.³⁰ However, during the 2020 election cycle, Wolfe rejected baseless allegations spread by some state Republican lawmakers, including Assembly Speaker Vos, that she oversaw widespread voter fraud.³¹ In addition, some Republicans in the state Senate were not pleased that she successfully helped to implement sensible rules for voting during the COVID-19 pandemic.³² Dissatisfied with Wolfe’s insistence that the 2020 presidential election was fairly decided, this group voted to remove Wolfe from her job. However, they later admitted in court that because they lacked the legal authority to do so, it was only a “symbolic” vote.³³ Subsequently, a state judge issued a temporary injunction blocking Wolfe’s ouster, officially ruling the state Senate had no authority to fire her.³⁴ Days later, the speaker of the Assembly opened a new attack, advancing a 15-count resolution to impeach Wolfe, which has yet to receive full Assembly consideration.³⁵
• Limiting the legitimate authorities of the governor: Beginning at the end of 2018, when Gov. Evers was elected to his first term, Republican lawmakers in both bodies began an aggressive effort to limit long-held gubernatorial powers.³⁶ They immediately convened an unprecedented lame-duck session and removed many of the governor’s authorities.³⁷ For example, they passed laws that limited Evers’ ability to implement many substantive policies related to health care, economic development, and election administration while also giving the Legislature more control of some state commission boards and the power to reject state legal settlements.³⁸ Evers characterized it as a “desperate” power grab from lawmakers who want to “cling to control” and override “the will of the people.”³⁹ These power grabs have continued. In November 2023, after Republican lawmakers refused to approve Evers’ pay raises for university employees that were previously approved in the state budget, Evers sued the Legislature, arguing that lawmakers are unconstitutionally “obstructing basic government functions.”⁴⁰
• Making it harder to vote: In recent years, Republican majorities in the state Legislature have repeatedly attempted—many times successfully—to pass laws that curtail voting rights and threaten free and fair elections. For example, in 2018, the Legislature cut the number of early voting days while shortening the voting period.⁴¹ Since 2019, Gov. Evers has vetoed more than a dozen bills that would have made it more difficult for Wisconsinites to vote, including imposing needlessly strict identification requirements for older and disabled voters and placing limits on absentee ballots.⁴² In prior years, the conservative-dominated state Supreme Court upheld laws that banned ballot drop boxes and barred voters from allowing trusted family members to submit their ballots.⁴³

North Carolina, like Wisconsin, is a swing state with a recent record of competitive statewide elections, including for president. Donald Trump, as a past Republican presidential nominee, narrowly won the state by 3.6 percent in 2016 and 1.3 percent in 2020.⁴⁴ A two-term Democratic governor, Roy Cooper, currently serves after narrowly winning elections in 2016 and 2020.⁴⁵ In the four most recent U.S. Senate election cycles, North Carolina has elected Republicans all four times by slim margins.⁴⁶ Because of a 2022 court-ordered, fairly drawn map, North Carolina’s congressional delegation currently is evenly represented by Republicans and Democrats, with seven seats each.⁴⁷ Yet because of extreme partisan gerrymandering, the state Legislature is overwhelmingly led by Republicans, who enjoy a veto-proof supermajority, with the state Senate controlled by Republicans 30 to 20 and the state House controlled by Republicans 72 to 48.⁴⁸

In recent years, the Republican-controlled state Legislature has aggressively wielded its power to entrench its political control, breaking long-standing norms and raising unprecedented legal theories in state and federal courts to protect that power. These actions have secured a partisan head start in elections and have diminished the effectiveness of the twice-elected governor’s policy agenda. As one North Carolinian wrote in a Washington Post letter to the editor, “Perhaps if the North Carolina GOP adopted mainstream policies with strong public approval rather than its current radical, extremist agenda, it wouldn’t need to be afraid of the state’s voters.”⁴⁹

The Republican-controlled Legislature has recently taken the following steps to help cement political minority rule:

• Employing partisan gerrymandering aided by a partisan-elected state Supreme Court: At the center of the legislative majority’s plans to consolidate political power has been creating state and federal district maps that set up significant hurdles for Democrats to win elections.

  As noted above, Republicans not only handily control both legislative chambers, but after more than a decade of extreme partisan gerrymandering, they also enjoy veto-proof majorities, which has allowed them to throw a monkey wrench into Gov. Cooper’s legislative agenda.⁵⁰ In late October 2023, Republicans passed state legislative maps that will likely cement their political control starting with the 2024 election cycle.⁵¹ According to one analysis, under the new state House map, if Democrats perform as well as Biden did in 2020, they would win only 49 seats compared with Republicans’ 71 seats.⁵²

  In 2020, when North Carolinians reelected Cooper, the election yielded eight Republican seats and only five Democratic seats in the U.S. House of Representatives.⁵³ In 2021, the Republican-controlled Legislature drew an updated set of maps, which included a new 14th District due to population growth. The maps were so unfairly drawn that the state Supreme Court found the maps violated the state constitution and forced new districts to be drawn for the 2022 elections, which yielded a fair 7-to-7 split.⁵⁴ Undaunted, Republican state legislators appealed the state Supreme Court decision to the U.S. Supreme Court in the case of Moore v. Harper, where they raised an unprecedented and discredited argument that the state court lacked the jurisdiction to rule on the maps.⁵⁵ The reckless “independent state legislature theory,” which had been invoked by some who wanted to overturn the 2020 presidential election, posited not only that the U.S. Constitution gives state legislatures the sole responsibility for drawing congressional districts, but also that such map drawing is unreviewable by state courts and not subject to state constitutions—a sweeping argument that even the conservative-controlled U.S. Supreme Court ultimately rejected as antithetical to the government’s system of checks and balances.⁵⁶

  Nonetheless, after control of the state Supreme Court shifted to Republicans in January 2023, within weeks, the newly comprised majority took the rare step of agreeing to rehear the case that the court had decided only one year earlier.⁵⁷ With its new majority, the court sided with Republican legislative leaders, declining to invalidate the congressional maps, concluding that the state constitution does not authorize courts to adjudicate partisan gerrymanders and that no manageable standards exist for such review.⁵⁸ Dissenting in the case, Democratic Justice Anita Earls wrote that the decision signals that the state courts “cannot protect [people’s] basic human right to self-governance and self-determination.”⁵⁹

  Within months, the state Supreme Court’s hands-off approach helped the Legislature’s leadership entrench their political power over the state’s congressional delegation for the foreseeable future. In October 2023, the Legislature’s Republican supermajority passed extremely disproportionate maps, after changing a related law to allow far less transparency during the map-drawing process.⁶⁰ The U.S. House delegation is now poised to swing dramatically in the 2024 elections from the current 7-to-7 fair split to a potentially 11-to-3 lopsided Republican advantage.⁶¹

• Limiting the legitimate authorities of the governor: From the moment that North Carolinians elected Roy Cooper as governor, the legislative majority has relentlessly tried to disempower him via unprecedented means, such as removing his ability to make key cabinet appointments without their approval and slashing the size of his administration.⁶² Beginning with a surprise special session in December 2016, the Legislature stripped Cooper of powers to appoint various state officials, including his “authority to appoint majorities to the state election board and local election boards in all 100 counties.”⁶³ The state Supreme Court subsequently invalidated that law, and voters soundly rejected the idea in a 2018 statewide ballot measure.⁶⁴

  Yet by September 2023, the Legislature, with its veto-proof majority, again passed an election-related overhaul under the guise of protecting elections—a move again characterized as a “major power grab” that weakens the governor’s ability to oversee elections and other state regulatory bodies.⁶⁵ One new law eliminates the governor’s power to appoint state and county election boards. Instead, it gives the power to legislative leaders, increasing partisan lawmakers’ ability to influence future election results.⁶⁶ After the Legislature overruled Cooper’s vetoes, he and others sued to block the new anti-democracy laws, with Cooper saying, “This legislation has nothing to do with election security and everything to do with Republicans keeping and gaining power.”⁶⁷ On November 30, a panel of trial judges temporarily blocked this new law while the litigation continues.⁶⁸ Now that Republican justices control the state Supreme Court, the chances for the legislation’s survival may be high.⁶⁹

• Making it harder to vote: The aforementioned supermajority has bestowed to itself much more power over who can vote and how elections are administered—something Republican lawmakers tried to do for many years with varying degrees of success. For example, in 2013, the Legislature “passed a sweeping rewrite of its voting laws that required strict voter ID, repealed same-day voter registration, and limited Sunday voting, which historically has been when Black churches hold Souls to the Pollsvoter mobilization drives.”⁷⁰ But a federal court later blocked that legislation, finding that it illegally targeted Black voters with “almost surgical precision.”⁷¹

  As discussed above, one new law passed in September 2023 eliminates the governor’s power to appoint the state and county boards of elections, instead giving that power to partisan legislative leaders, while another new law ends a three-day grace period to receive and count absentee ballots that are postmarked by Election Day.⁷² Other new provisions make it harder to register to vote, ban voting drop boxes, and expand voter challenges.⁷³ Critics contend that “these changes will lead to board impasses that could scale back the number of local early in-person voting sites and could send the outcomes of contested elections to the courts or the General Assembly to settle.”⁷⁴ In a statement announcing a lawsuit, Gov. Cooper said that the new election package illegally usurps executive authority and “creates a grave risk that Republican legislators or courts would be empowered to change the results of an election if they don’t like the winner. That’s a serious threat to our democracy.”⁷⁵

Although entrenched minority rule in states poses a considerable threat to a robust multiracial democracy, there are steps that can prevent it:

• Congress and states should pass laws banning partisan gerrymandering or setting up independent redistricting commissions to help ensure district maps are fairly drawn and reflect the will of the people. Comprehensive federal legislation, the Freedom to Vote Act (S. 1, H.R. 11), would bar states from drawing congressional maps for unfair partisan advantage.⁷⁶ Where state legislatures are unwilling or unable to ban partisan gerrymandering, it may be possible to achieve that result through statewide people-powered ballot initiatives, as in states such as Arizona and Michigan.⁷⁷ Moreover, federal and state lawmakers could adopt electoral reforms involving proportional representation, drastically reducing the incentive to draw gerrymandered districts.⁷⁸
• Congress should pass a statutory right to vote, another Freedom to Vote Act provision and the centerpiece of legislation sponsored by Sen. Jon Ossoff (D-GA).⁷⁹ This provision would help protect people from voter suppression laws and allow them to challenge such laws in court. Relatedly, Congress should pass the John R. Lewis Voting Rights Advancement Act (H.R. 4), which would update and restore crucial parts of the Voting Rights Act of 1965—gutted by a conservative-dominated U.S. Supreme Court—and make it harder for states to pass discriminatory voter suppression laws.⁸⁰ Where state legislatures are unwilling or unable to pass legislation protecting the fundamental right to vote, including via state voting rights acts, this result could be achieved via statewide ballot initiatives where feasible.⁸¹ Moreover, the Biden administration should fully implement its 2021 executive order designed to expand voting access.⁸²
• Congress should use its constitutional authority to set national standards that expand the right to vote and stymie election sabotage—critical provisions in the Freedom to Vote Act.⁸³ These laws would apply to all elections conducted in states for federal offices. For example, federal standards in the Freedom to Vote Act would guarantee that voters have multiple options to vote for federal officials, including by mail or early voting, and would help insulate election administrators from partisan lawmakers attempting to engineer election results. It should be noted that under current filibuster rules of the U.S. Senate, passage of the Freedom to Vote Act would require a supermajority of 60 votes, as is true for most substantive legislation. Most recently, in 2022, the filibuster was indeed used to block passage of this transformative bill.⁸⁴ Although it is beyond the scope of this state-centric report, CAP has addressed the abuse of the Senate filibuster and why senators should reform it to stop entrenched minority rule and strengthen democracy.⁸⁵

• Statewide ballot initiatives remain a direct, potent route for everyday Americans to fortify their state’s democracy and act as a check against political minority rule. Twenty-six states currently allow a citizen-driven ballot initiative and/or referendum process at the state level.⁸⁶ For example, as detailed in a recent CAP report, Michiganders have led the way in implementing pro-democracy reforms through citizen-initiated constitutional amendments, including enacting an independent redistricting commission, automatic voter registration, and expansion of vote-by-mail and early voting.⁸⁷ At the same time, people may have to defend against efforts to make it harder to pass voter-driven ballot initiatives in their states. For example, in 2023, after an expensive and hard-fought battle, Ohioans overwhelmingly rejected an attempt to raise the requirement of voter support to amend the state constitution from more than 50 percent to 60 percent. Subsequently, Ohio voters approved a ballot initiative for a constitutional amendment that codified the right to abortion.⁸⁸
• Americans could take direct action by forming a bipartisan movement to speak out forcefully against lawmakers who abuse power to entrench minority rule. A robust and broad coalition could find ways to effectively energize people of all races, ethnicities, generations, and political persuasions against anti-democracy power grabs made by elected leaders. Officials who attempt to rig the rules of the game must beware that their constituents will be mobilized to shine a bright light on their actions.
• As discussed above, litigation can sometimes result in courts invalidating states’ anti-democracy laws. Elected officials such as governors can bring lawsuits challenging laws and unconstitutional legislative actions, as can individual voters, public interest organizations, and other stakeholders with legal standing. Although often costly and time-intensive, litigation may provide a possible bulwark against minority power grabs.

Democracy suffers when political parties take extreme measures to entrench minority rule. State legislatures that seek to rig the rules of the game to lock in political power thwart the will of the people to choose their representatives and prevent the emergence of a truly multiracial and pluralistic democracy. The passage of commonsense, pro-democracy laws—along with an informed and energized electorate—could help stop political minority rule.