Stein Calls for Compromise and Says GOP Should Avoid 'Power Grabs' in Lame-Duck Session; N.C. Supreme Court Hears His Appointment-Power Cases Nov. 10
The state Supreme Court has scheduled 2.5 hours of arguments in two cases over laws that limit Gov. Josh Stein's appointment powers. The cases were set before Tuesday's election, in which Democrats won the state House and broke the Republican supermajority in the state Senate.
Two cases, one date, and an election in between
On Tuesday, Nov. 10, North Carolina's Supreme Court will hear 2.5 hours of arguments in two consolidated cases, Stein v. Berger and Stein v. Hall[2]. Democratic Gov. Josh Stein is challenging laws passed by the Republican-led legislature. One limits whom he can pick to fill vacancies on the state's top two courts. Others moved some of his appointments to state boards and commissions to other officials[2][3].
The court set that date well before Election Day. The hearing is not a response to the results. But the results raise the stakes. By unofficial totals, Democrats won 70 of 120 House seats, with Republicans at 49 and one unaffiliated winner. That gives Democrats the chamber for the first time since 2010[6][23].
Democrats also flipped four Senate seats. Republicans now hold 26 of 50, short of the 30 they need to override a veto[6][7]. On Nov. 4, Stein said voters had sent a message for compromise. He said a lame-duck session wasn't necessary. If lawmakers did return, he said, they shouldn't engage in "power grabs or political gamesmanship"[1][11].
A lame duck with a calendar
The current Republican majorities stay in office until the new legislature is seated in January. Lawmakers are scheduled to reconvene Nov. 16, six days after the hearing[21][5]. Until then, those majorities can still override Stein.
Senate leader Phil Berger, a defendant in the case, is on his way out. He lost the March 3 Republican primary to Rockingham County Sheriff Sam Page by 23 votes. He remains Senate leader through the end of 2026[8][9].
That timing is why the session matters to both sides. A veto override needs three-fifths of members present and voting. With all 50 senators voting, that's 30. Starting in 2027, Republicans can't pass laws over Stein's objection on their own[6][7]. Hall said after the election that he looks forward to working with Democrats next year[23].
What the cases actually dispute
The judicial-vacancy rule comes from S.L. 2024-57. Under it, the governor must pick from three names chosen by the departing judge's political party. The legislature passed it in December 2024, after that year's election, over then-Gov. Roy Cooper's veto[10][3]. The Court of Appeals ruled for lawmakers on this law. That's why Stein is the one appealing[2][3].
The board and commission laws raise a broader question. Who does the state constitution put in charge of carrying out the law? Each side has a clear answer.
Stein's case: a governor must be able to execute the laws
Stein points to the constitution's command that the governor "take care that the laws be faithfully executed." His argument is that a governor can't do that if the legislature fills the bodies that carry out the law. He says Article IV, Section 19 gives the appointment of judicial vacancies to the governor. In his view, lawmakers can't narrow that to a list written by a political party[3][19].
The rule he relies on is called "sufficient control." The court set it in two rulings. In 2016, in McCrory v. Berger, it sided with Republican Gov. Pat McCrory. In 2018, in Cooper v. Berger, it sided with Democratic Gov. Roy Cooper. Both said lawmakers violate the separation of powers when they leave the governor without enough control over an executive agency. Control usually means appointing a majority of its members and being able to remove them[17][18].
Why does he care? Voters elect the governor to run the executive branch. If the legislature names the people who carry out laws, the governor answers to voters for decisions he can't control. Stein's side says the rule isn't partisan, since it protected governors of both parties.
All five living ex-governors filed a brief backing him. They are Jim Martin, Mike Easley, Bev Perdue, Pat McCrory and Roy Cooper. Martin and McCrory are Republicans[4]. Any governor, regardless of party, has an institutional interest in keeping control of the agencies that carry out state law. A win would restore his control over court vacancies and several boards.
The lawmakers' case: the text never gave governors this power
Berger and Hall ask the court to overrule the 2016 and 2018 decisions. Their brief says those rulings "departed from constitutional text, history, and more than a century of precedent to conjure a new gubernatorial power not found anywhere in the Constitution"[3].
Their argument runs like this. The constitution lets the legislature create boards and commissions, so it can decide how they're staffed. Lawmakers did so for more than a century before 2016[3]. The constitution also spreads executive power across 10 elected Council of State officers, not just the governor. And a "sufficient" standard leaves judges deciding case by case how much control is enough. That, they say, hands power to courts and governors that the text never granted[3][13].
On judicial vacancies, they say the law only defines the pool of eligible picks. The governor still makes the final appointment[20]. They also have a structural stake. A ruling for them would lock in legislative powers that will be harder to defend now that Democrats control the House and can sustain Stein's vetoes. It would also apply to any future Democratic legislature.
Auditor Dave Boliek, Labor Commissioner Luke Farley and the John Locke Foundation filed briefs backing lawmakers[12][13]. Boliek and Farley have gained, or could gain, appointment powers under these laws. The Locke Foundation has long argued for a narrower reading of governors' powers[12][13]. The court has a 5-2 Republican majority. The same seven justices hear the case whatever Tuesday's results were[2].
Same dispute, different frames
Outlets framed the story differently. Carolina Journal is published by the John Locke Foundation, which filed a brief for lawmakers. Its court coverage is detailed and lays out both sides' briefs. Its election story, though, called Stein's press conference a "victory lap"[11][2].
On the left, NC Newsline headlined its piece that Democrats "must first face" a GOP-controlled lame-duck session. That casts the session as a threat to get through[5]. WUNC's headline stuck to what Stein said. But its background on past lame-duck sessions, when Republicans "stripped power" from Democratic governors, wasn't attributed[1]. Democracy Docket, founded by Democratic election lawyer Marc Elias, ran an opinion piece saying the "ousted" Berger "assaulted democracy"[15]. ProPublica described Republicans as "siphoning off" powers that "traditionally came with the job." That treats the governor's control as the default, which is the very point lawmakers dispute[16].
Stein's office titled its release on the ex-governors' brief as "protecting separation of powers." That phrase assumes the answer the court has been asked to give[4]. Democrats point to December 2016 and December 2024 as proof that post-election sessions bring power shifts[10][5]. House Democratic Leader Robert Reives warned in August of "power-grabbing" bills[22]. Republican leaders have said little in public since the election. Their argument lives mostly in the briefs[3].
Neither the national left nor the national right covered the Nov. 10 cases, and overseas outlets didn't either. A separate fight over who appoints the state elections board, now under Boliek, isn't part of Tuesday's hearing[12]. So even after the court rules, one appointment fight will remain. Whether the legislature uses its Nov. 16 return to move more powers is also unanswered.
Summary
North Carolina's Supreme Court will hear two consolidated cases, Stein v. Berger and Stein v. Hall, on Tuesday, Nov. 10. Arguments are set for 2.5 hours[2]. Democratic Gov. Josh Stein is challenging laws passed by the Republican-led legislature. One law limits whom he can pick to fill vacancies on the state's top two courts. Others took away some of his appointments to state boards and commissions[2][3]. Stein lost the last round on the judicial-vacancy law in the state Court of Appeals, so he is the side appealing[2].
The hearing comes a week after an election that shifted power in Raleigh. By unofficial results, Democrats won 70 of 120 House seats and control of that chamber for the first time since 2010[6]. They also flipped four Senate seats. That leaves Republicans with 26 of 50, below the 30 needed to override a veto[6][7]. On Nov. 4, Stein called for a spirit of compromise. He said he would prefer lawmakers not hold a lame-duck session. If they do return, he said, they should not engage in 'power grabs' or political gamesmanship[1][11]. The current Republican majorities stay in office until the new legislature is seated in January. Senate leader Phil Berger, a defendant in the case, lost his own primary in March and is also leaving[5][8].
The main dispute is about who the state constitution puts in charge of the executive branch. Stein, backed by all five living ex-governors of both parties, says the governor must keep 'sufficient control' over agencies that carry out the law[4]. Berger and House Speaker Destin Hall argue that the 2016 and 2018 rulings creating that test were wrongly decided. They say those rulings invented a power the constitution never gave the governor, and they ask the court to overrule them[3][13]. The court has a 5-2 Republican majority.
The Event
On Nov. 4, 2026, Gov. Josh Stein held a press conference after the election. He called for compromise with the General Assembly and said a lame-duck session was not necessary[1][11]. The N.C. Supreme Court has set 2.5 hours of consolidated arguments in Stein v. Berger and Stein v. Hall on Nov. 10, the first day of its November session[2]. The parties filed their final briefs on Oct. 30[3][20].
Undisputed Facts
- The cases challenge a state law limiting the governor's choices for Supreme Court and Court of Appeals vacancies, and laws moving some of his board and commission appointments to other officials[2][3].
- The judicial-vacancy rule comes from S.L. 2024-57. Under it, the governor must pick from three names chosen by the departing judge's political party. The law was passed in December 2024, after that year's election, over then-Gov. Roy Cooper's veto[10][3].
- The Court of Appeals ruled for lawmakers on the judicial-vacancy law, so Stein is appealing[2][3].
- Former Govs. Jim Martin, Mike Easley, Bev Perdue, Pat McCrory and Roy Cooper filed a brief supporting Stein. Martin and McCrory are Republicans[4].
- Auditor Dave Boliek, Labor Commissioner Luke Farley and the John Locke Foundation filed briefs supporting lawmakers[12][13].
- By unofficial results, Democrats won 70 House seats to Republicans' 49, with one unaffiliated winner. Republicans hold 26 of 50 Senate seats, below the 30 needed to override a veto[6][7].
- Phil Berger lost the March 3, 2026, Republican primary for his Senate seat to Rockingham County Sheriff Sam Page by 23 votes. Berger remains Senate leader through the end of 2026[8][9].
- Lawmakers are scheduled to reconvene Nov. 16, before the new legislature takes office in January[21][5].
The Pressure
Strip away the moralizing and blame. What structural realities persist regardless of which narrative wins?
- The 'sufficient control' test
- This is the term the case turns on. In 2016 the court ruled for Republican Gov. Pat McCrory, and in 2018 for Democratic Gov. Roy Cooper. Both rulings said lawmakers violate the separation of powers if they leave the governor without enough control over an executive agency. Control usually means appointing a majority of its members and being able to remove them[17][18]. Here is why Stein cares. Voters elect the governor to run the executive branch. If the legislature names the people who carry out laws, the governor answers to voters for decisions he cannot control. Here is why lawmakers care. They say the constitution creates many independently elected executives and lets the legislature design the boards it creates. A court-made 'sufficient' standard leaves judges deciding case by case how much control is enough. That, they argue, hands power to courts and governors that the text never granted[3][13].
- The veto math
- A veto override needs three-fifths of members present and voting. With all 50 senators voting, that is 30 votes. Republicans now hold 26. In the House, Democrats hold 70 of 120[6][7]. So starting in 2027, Republicans cannot pass laws over Stein's objection on their own. Until January, the current majorities can still override him. That is why the lame-duck session matters to both sides[5].
- Court composition
- The Supreme Court has a 5-2 Republican majority. The same seven justices will hear the Nov. 10 cases regardless of Tuesday's results[2].
Material realityWhoever wins, the ruling will decide who fills vacancies on North Carolina's appellate courts. It will also decide who appoints members of several state boards, and whether future legislatures can move appointments away from the governor[2][3]. The legislature returns Nov. 16 with its outgoing Republican majorities still in place, and with a Senate leader who is himself leaving[21][8]. The fight over who appoints the state elections board, now under Auditor Boliek, is a separate case and will not be settled on Nov. 10[12].
Narrative as a weaponStein's office is pushing two frames at once. Publicly, it presents the governor as offering compromise. In court, it presents the case as a defense of the separation of powers, using the bipartisan ex-governors' brief as proof that the issue is not partisan[1][4]. Democratic-aligned outlets build on the 2016 and 2024 lame-duck history to cast any November session as a likely 'power grab'[5][15]. Republican leaders have said little in public about the case since the election. Their argument lives mostly in the briefs: the constitution never gave governors this power, and the court should say so[3]. Carolina Journal's publisher is a party-side amicus. Coverage on both sides tends to leave out one fact: the court set the Nov. 10 date well before the election. So the hearing is not a response to the results, though the results raise the stakes.
How Each Side Sees It
Each major actor’s view — how it frames things, its underlying incentive, and how it’s materially affected. Tap a side to read it.
Frames it asThe constitution says the governor must 'take care that the laws be faithfully executed.' A governor cannot do that if the legislature fills the bodies that carry out the law, or decides who sits on them. The 2016 McCrory ruling protected a Republican governor on this point, and the 2018 Cooper ruling a Democratic one. So the rule is not partisan[4][17][18]. On judicial vacancies, Stein argues that Article IV, Section 19 gives the appointment to the governor. Lawmakers cannot narrow it to a list written by a political party[3][19]. After the election, he says voters sent a message for compromise, not 'power grabs'[1].
WhyTo keep the executive powers his office has traditionally held, and to stop more transfers in a lame-duck session before Democrats gain leverage in January[1][5].
Impact on themA win would restore his control over court vacancies and several boards. A loss could overturn the 'sufficient control' test, leaving future governors open to further transfers. With Republicans below 30 Senate seats, Stein's vetoes will be harder to override starting in 2027[6][3].
Frames it asThe constitution lets the legislature create boards and commissions, so it can decide how they are staffed. Lawmakers did so for more than a century before 2016[3]. In their brief, they say McCrory and Cooper I 'departed from constitutional text, history, and more than a century of precedent to conjure a new gubernatorial power not found anywhere in the Constitution'[3]. On judicial vacancies, they say the law only defines the pool of eligible picks. The governor still makes the final appointment[20]. Hall said after the election that he looks forward to working with Democrats next year[23].
WhyTo lock in, through a court ruling, legislative powers that will be harder to defend now that Democrats control the House and can sustain Stein's vetoes[6][3].
Impact on themOverturning the 'sufficient control' test would confirm the legislature's power over boards no matter who holds the majority. That includes a future Democratic legislature. Berger leaves office at year's end[8].
Frames it asRepublicans have used post-election sessions before to strip powers from incoming Democrats. They point to December 2016 and to the December 2024 law at the center of Stein v. Hall[10][5]. House Democratic Leader Robert Reives warned in August that Republicans could use November to pass 'power-grabbing' bills before losing their veto-proof majorities[22].
WhyTo keep the gains from the election from being undone before January, and to build public pressure ahead of the Nov. 16 session[5][22].
Impact on themDemocrats will control the House in 2027 and can block bills and veto overrides. Until then, they cannot stop what the current majority passes[6][5].
Frames it asThe constitution spreads executive power across 10 elected Council of State officers, not just the governor. Giving appointments to other elected officials is in keeping with that design. The Locke Foundation argues the court should return to the constitution's text[12][13][14].
WhyBoliek and Farley have gained or could gain appointment powers under these laws. The Locke Foundation has long pushed for a narrower reading of governors' powers[12][13].
Impact on themA ruling for lawmakers would protect the roles shifted to Republican officeholders. The separate fight over the elections board, now appointed by Boliek, is not part of the Nov. 10 cases[12].
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The Bias Ledger average rating 5.1
The same story, as framed by outlets across the spectrum, ordered least to most biased. The bias score (1 = straight, 10 = heavily spun) is an AI assessment of that framing — click an outlet to see its track record. The tell is the word choice or omission that reveals the angle.
| Outlet | Vantage | Bias | How they frame it | The tell |
|---|---|---|---|---|
| WUNC | U.S. center-left (public radio) | 3 | In post-election remarks, NC Gov. Stein calls for compromise with General Assembly | The headline sticks to what Stein said. The background line on past lame-duck sessions in which Republicans 'stripped power' is stated in the outlet's own voice, not attributed. |
| Carolina Journal | U.S. right (John Locke Foundation, an amicus for lawmakers in this case) | 4 | Stein, legislative leaders to clash in top NC court on Nov. 10 / Stein touts Democratic gains, lays out NC priorities | The court coverage is detailed and gives both sides' briefs. But the election story calls Stein's press conference a 'victory lap.' The publisher's own amicus role is not always disclosed up front. |
| NC Newsline | U.S. left-leaning (States Newsroom, a nonprofit network funded by progressive-leaning donors) | 4 | NC Democrats will have more power next year, but must first face a GOP-controlled lame duck session | 'Must first face' casts the lame-duck session as a threat Democrats have to get through. The story centers Democrats' fears. |
| Carolina Journal (Opinion) | U.S. right | 5 | Top NC court to weigh balance of executive, legislative powers | Presents the question as a neutral 'balance,' a framing that suits the side asking the court to reopen settled precedent. |
| ProPublica | U.S. center-left (nonprofit investigative) | 5 | North Carolina's GOP Legislature Is Taking More Power to Shape Government Boards | 'Siphoning off' powers that 'traditionally came with the job' treats the governor's control as the default. That default is exactly what lawmakers dispute in court. |
| Office of Gov. Josh Stein | Party to the case (Democratic governor's office) | 7 | All Living NC Governors Join Constitutional Experts to Offer Bipartisan Support for Governor Stein in Protecting Separation of Powers | 'Protecting separation of powers' assumes the conclusion the court has been asked to decide. |
| Democracy Docket (Opinion) | U.S. left (founded by Democratic election lawyer Marc Elias) | 8 | Ousted North Carolina GOP leader assaulted democracy, checks & balances for decades | 'Ousted' and 'assaulted democracy' give a verdict and do not engage the lawmakers' constitutional argument. |
References
- In post-election remarks, NC Gov. Stein calls for compromise with General Assembly — WUNC · Public radio (UNC-licensed); center-left audience
- Stein, legislative leaders to clash in top NC court on Nov. 10 — Carolina Journal · Conservative; published by the John Locke Foundation, an amicus backing lawmakers
- Stein, lawmakers submit final words in showdown at top NC court — Carolina Journal · Conservative; John Locke Foundation
- ICYMI: All Living NC Governors Join Constitutional Experts to Offer Bipartisan Support for Governor Stein in Protecting Separation of Powers — Office of the Governor of North Carolina · Party to the case (Democratic administration)
- NC Democrats will have more power next year, but must first face a GOP-controlled lame duck session — NC Newsline · Left-leaning nonprofit (States Newsroom)
- Democrats win control of North Carolina House, cut gap in Senate — WCNC · Commercial local TV (TEGNA); mainstream
- Democrats flip NC House, GOP poised to keep NC Senate by one seat — Carolina Public Press · Nonprofit investigative newsroom; center
- Republican Phil Berger, one of North Carolina's most powerful politicians, concedes state Senate primary to Sam Page — CNN · Mainstream; center-left
- NC Senate leader Phil Berger loses primary by 23 votes, political science expert weighs in — WECT · Commercial local TV (Gray); mainstream
- North Carolina GOP lawmakers override governor veto, shifting powers — NPR · Public broadcaster; center-left
- Stein touts Democratic gains, lays out NC priorities — Carolina Journal · Conservative; John Locke Foundation
- Boliek, Farley support legislators in NC court battle with Stein — Carolina Journal · Conservative; John Locke Foundation
- Locke brief backs lawmakers in appointments fight at top NC court — Carolina Journal · Conservative; reports on its own parent organization's brief
- Top NC court to weigh balance of executive, legislative powers — Carolina Journal (Opinion) · Conservative opinion
- Ousted North Carolina GOP leader assaulted democracy, checks & balances for decades — Democracy Docket (Opinion) · Progressive; founded by Democratic election lawyer Marc Elias
- North Carolina's GOP Legislature Is Taking More Power to Shape Government Boards — ProPublica · Nonprofit investigative; center-left
- State ex rel. McCrory v. Berger (2016) — Justia (N.C. Supreme Court opinion) · Primary source (court record)
- Cooper v. Berger (2018) — Justia (N.C. Supreme Court opinion) · Primary source (court record)
- Governor Stein's brief, No. COA 25-652, N.C. Court of Appeals — State Court Report (Brennan Center), hosting the court filing · Primary source (party brief); host is a progressive-leaning legal center
- Stein and legislative leaders file final arguments in appointment-power cases — NC Political News · Political aggregator/news site; orientation unclear
- Dates of 2026 state legislative sessions — Ballotpedia · Nonprofit reference; nonpartisan by self-description
- NC legislature adjourns until election, and Democrats fear a 'lame-duck' session — WUNC · Public radio; center-left audience
- NC General Assembly shakeup: Dems flip more than 20 seats, take control for first time in 16 years — CBS17 · Commercial local TV (Nexstar); mainstream