In 2017, months after North Carolina Republicans’ attempt to rewrite state election laws was struck down for racial discrimination, Attorney General Josh Stein refused to appeal the case to the U.S. Supreme Court.
It was a controversial decision by Stein, a Democrat who had only been on the job a few months at the time. He was continuing a strategy adopted in that case the year before by then-Attorney General Roy Cooper, a fellow Democrat. Cooper had additionally refused to defend in court a challenge to a 2016 GOP-backed, anti-transgender law known as “the bathroom bill,” or “HB2,” by its abbreviated filing name.
Both men said attorneys general shouldn’t defend laws they believe to obviously violate people’s constitutional rights. It was a largely untested argument, but they stood by their decisions despite fierce criticism from Republicans who said they were shirking their official duties.
Cooper made his opposition to HB2 a main part of his successful campaign for governor in 2016. Now Stein, who is running for governor himself, is campaigning on his record of fighting against the legislature in that elections law case, as well as a legal battle over gerrymandering that the GOP lost at the U.S. Supreme Court this summer.
The strategy used by Stein, and Cooper before him, reflects a growing politicization of the top legal office in states all across the country.
“In the past couple of decades, we've seen attorneys general really find their footing as political actors themselves,” said Reid Wilson, founder of Pluribus News, an independent digital media outlet focused on state-level policy around the country.
In North Carolina, that trend is likely to be more prominent than ever in 2024.
The leading candidates to replace Stein are both sitting members of the U.S. House of Representatives with national followings, clear political ambitions and multimillion-dollar campaigns — primed to make next year’s election the most bruising and expensive race ever for attorney general.
U.S. Reps. Dan Bishop and Jeff Jackson are both Charlotte-area corporate lawyers who served in the state legislature together before moving on to Congress. But that’s where their similarities largely end.
Bishop, a Republican, is a member of the far-right Freedom Caucus known for aggressively advocating for socially conservative causes. Jackson, a Democrat, is a veteran of the war in Afghanistan known for his social media presence where he has racked up millions of views from fans of his short videos explaining legislation and congressional proceedings.
Both have keyed in on the actions Stein and Cooper took as attorney general to push back against the Republican-led legislature.
Bishop — who as a state senator in 2016 was the lead sponsor of HB2 — slammed Cooper’s and Stein’s decisions not to defend laws they deemed unconstitutional, whether dealing with culture-war battles or voting rights issues.
“We’re done with attorneys general who pick and choose which laws to enforce and substitute their progressive ideology for our Constitution, especially with respect to elections,” Bishop said in his campaign kickoff video. “North Carolinians deserve a constitutional conservative who will enforce our laws consistently.”
Jackson, on the other hand, vowed to carry on the fight if elected attorney general. His campaign kickoff video showed clips of him boxing while he accused GOP legislative leadership of being corrupt: “I’m running for Attorney General, and I’m going to use that job to fight political corruption,” he added.
And Durham District Attorney Satana Deberry, who is also seeking the Democratic nomination for AG, has indicated she won’t back down from a fight with the Republican-led legislature. In a meeting with reporters Tuesday she touted her support of voting rights and prior legal and political advocacy on abortion rights, affordable housing and consumer protections. “We need an experienced attorney general not only for those issues, but also because democracy is at stake here,” she said.
As the 2024 race heats up, the ads could potentially eclipse — in spending and vitriol — the 2020 campaign between Stein and Forsyth County District Attorney Jim O’Neill. Their contest was notable for its own gloves-off approach as the two men took turns blaming one another for problems in the state’s backlog of untested rape kits, among other issues.
Stein and two top aides were at one point criminally investigated over an anti-O’Neill ad, which Wake County District Attorney Lorrin Freeman said violated an obscure law from the 1930s that made it illegal to say false things about politicians. Stein contended his ad wasn’t false. But before the case could advance, the law was ruled unconstitutional for violating the First Amendment, and Freeman was stopped from bringing charges.
Stein and O’Neill combined to spend about $14 million on their 2020 campaigns, not counting millions more from outside groups. A hypothetical race between Bishop and Jackson would likely exceed that amount.
Despite running in safe districts, never deemed competitive, Jackson raised nearly $6 million in 2022 and Bishop raised nearly $2 million.
A competitive statewide race would likely attract far more money, especially considering the national profile both have built in Congress, and the impact the new attorney general could have.
A role with broad potential
The office of attorney general has traditionally been the state’s top legal officer, handling appeals in criminal cases, taking on scammers or price gougers and waging consumer protection fights — such as the 1990s lawsuits against Big Tobacco and the ongoing 2020s battle with Big Pharma over opioids.
And the pressure on companies has increased — so much so that corporate law firms now have specialty practices for companies who find themselves the target of a state investigation. The national firm Troutman Pepper warns clients: “Increasingly, state AGs are having an outsized impact nationally by launching investigations and enforcement actions.”
Wilson said companies have also become more proactive in trying to head off investigations, in part through increased donations to preferred political candidates and lobbying focused on the office of attorney general.
“Lobbyists, who were much more likely to try to influence the way a legislator votes or crafts a piece of legislation, are now also realizing that they need to be in front of attorneys general who are making policy decisions of their own,” he said.
In recent decades, dozens of state AGs have also done more to flex their political muscles, using their office to go after political opponents inside and out of government.
“There is an increasingly political aspect of the job that I think a lot of these guys are embracing wholeheartedly,” Wilson said.
Most attorneys general, including Stein, have balanced their political activities with the more traditional parts of the job. Stein has spent years going after robocallers, and his office won over $1 billion for North Carolina during his two terms as attorney general by suing numerous drug companies and distributors of painkillers. The money is now being distributed as grants for local governments to work on fighting the opioid epidemic, and other uses.
Stein has also taken on e-cigarette maker Juul and social media companies such as TikTok and Instagram parent Meta over consumer protection claims, among other high-profile cases.
Kyle Kondick, managing director for the political analysis center Sabato’s Crystal Ball, said big class action cases can be a good way for an attorney general to raise his or her prominence — but those often take years to resolve, and are much harder to handle or explain to voters than a lawsuit on a hot-button political issue.
“A lot of the ways AGs get notoriety now is by suing a president they don't like,” Kondik said. “It was a big feature of Democrats when Trump was in office, and it's a big feature for Republicans now.”
Stein, who declined to be interviewed for this article, sued then-President Donald Trump’s administration multiple times over Trump’s policies on immigration, the environment and more. On many of those actions he was joined by fellow Democratic attorneys general, including California’s Xavier Becerra, who made such an impression he’s now on Democratic President Joe Biden’s cabinet.
It’s not just Democratic AGs who have focused on political lawsuits. Days ago, Texas’ Republican Attorney General Ken Paxton announced he’d support conservative tech billionaire Elon Musk in a fight with liberal group Media Matters, which showed that Musk’s social media platform X, formerly called Twitter, was serving ads alongside pro-Nazi content.
Paxton criticized Media Matters for doing that, calling it a “radical anti-free speech organization” and said he’dinvestigate the group for fraud, the Texas Tribune reported.
GOP attorneys general have also recently fought companies over abortion pills, diversity and inclusion policies, investment strategies and other hot-button issues.
Election lies, crime and TikTok
In the final days of Trump’s time in office Paxton also filed a lawsuit that attempted to overturn the 2020 election results, echoing Trump’s false claims of fraud. Nearly every other state’s attorney general responded in some way to the lawsuit; most Republican attorneys general supported the arguments, while Democratic AGs opposed the suit. It was later thrown out by the Supreme Court.
Bishop, like most Republicans in Congress, voted to overturn the 2020 election and keep Trump in office following the Jan. 6, 2021, attack on Congress by Trump supporters. He also signed a brief in support of Paxton’s lawsuit, explaining in a social media post: “Unless [the U.S. Supreme Court] stops the sabotage of state election laws, every election will be stolen.”
Jackson has slammed Bishop for his support of GOP efforts to keep Trump in power despite losing the election to Biden, saying it makes Bishop unfit to be North Carolina’s attorney general.
“I heard him say he's running to re-establish law and order, and I just think that's a tough sell coming from someone who supported overturning an election,” Jackson said when Bishop first announced his run.
Bishop shot back at Jackson when he announced his own campaign for attorney general, calling him a “Chinese social media star” — an allusion to Jackson’s prevalent use of the app TikTok, which is owned by a Chinese company — and saying Jackson supports “protect-the-criminals policies.”
A former prosecutor, Jackson is likely to be the more moderate candidate on criminal justice issues in the Democratic primary. His most threatening challenger is Deberry, who first won the Durham district attorney race in 2018 on a platform of bringing racial and criminal justice reforms to the prosecutor’s office. Other Democratic candidates so far include lawyers Tim Dunn and Charles Ingram; no other Republicans have yet announced a primary challenge against Bishop.
On the Republican side, potential candidates largely backed out of the race after Bishop announced his run, which coincided with a massive national conservative group announcing that it’s prepared to spend millions of dollars electing him attorney general. The same group also backed U.S. Sen. Ted Budd’s 2022 election, hammering Budd’s Democratic opponent Cheri Beasley, a former state Supreme Court chief justice, with the same type of soft-on-crime accusations Bishop has been rolling out against Jackson.
Chris Cooper, a political science professor at Western Carolina University, said part of the reason the AG’s office has seemed increasingly politicized in North Carolina recently is because it has remained dominated by Democrats even as the state legislature flipped to GOP control.
“That lack of partisan match is going to inherently lead to both tension and attention,” he said. “If North Carolina elects a Republican Attorney General and the General Assembly remains in Republican control, I expect we’d see some tamping down of that tension.”
Wilson said North Carolina is one of only a few states where the attorney general belongs to a different political party than the presidential candidate who won the state in 2020.
Both sides will try to change that in 2024, seeking a clean sweep for their candidates in a place where many statewide elections can come down to the narrowest of margins.
In 2024 the governor’s race appears likely to feature Stein versus Republican Lt. Gov Mark Robinson. Cooper, the Western Carolina professor, said Stein’s efforts could be boosted by his ability to to point to his record as AG — especially since in North Carolina the lieutenant governor has few duties.
“The lieutenant governor has few powers at their disposal, so any attempt to grab attention may seem more like a pseudo-event than real news,” he said. “The attorney general, on the other hand, can make news through their actionable stances on a variety of issues related to law and courts.”
Historic levels of Democratic dominance
From 1968 through the present day, every North Carolinian elected attorney general has later run for governor — except one, Robert Morgan, who ran for U.S. Senate instead.
They’ve had mixed success. Former Attorneys General Roy Cooper and Mike Easley each became governor and also won reelection. Lacy Thornburg and Rufus Edmisten lost their races for governor. Morgan served only one term in the U.S. Senate, winning in 1974 but then losing his bid for reelection.
The office’s use as a launching pad for higher office in North Carolina has benefited Democrats alone. North Carolina hasn’t elected a Republican to serve as attorney general since Zeb Wasler in 1896. Wilson said that’s the longest streak anywhere in the nation of a single political party dominating a statewide office. North Carolina did have a Republican AG for a few months in 1974, when James Carson was appointed to serve in an interim capacity after Morgan resigned early to focus on his Senate campaign.
For years the North Carolina Republican Party competed for the office halfheartedly, if at all. In 2012 even as voters elected a Republican governor in Pat McCrory by a broad, double-digit margin, the GOP didn’t even bother running a candidate against Cooper for attorney general. Neither did any other political party. Cooper won reelection with 100% of the vote — and in the next election would unseat McCrory to become governor.
Since then Republicans have put a renewed focus on winning the office. And they’ve nearly succeeded in breaking the Democrats’ historic streak. Stein’s victories in 2016 and 2020 both came by razor-thin margins of less than 1% of the vote.
Kondik said whoever becomes the next attorney general could well have a long future in state or national leadership. Bishop is 59. Deberry is 54. Jackson is 41.
"The old joke is that ‘AG’ stands for ‘aspiring governor,’” he said before making reference to Bishop or Jackson. “I could see either of them running for governor in the near future, if they win this race."
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