Does Lt. Gov. Mark Robinson become governor if Gov. Roy Cooper leaves the state?

N.C. Governor Roy Cooper speaks at a press conference, Thursday, July 25, 2024, in Raleigh, N.C. Cooper is one of the people being considered to be likely Democratic presidential candidate Vice President Kamala Harris' running mate. (AP)

For the past few years, North Carolina Democrats have worried every time Gov. Roy Cooper has left the state — fearful that Republican Lt. Governor Mark Robinson would seize the opportunity as acting governor to issue executive orders and help the GOP-led legislature quickly pass conservative laws.

Sometimes Cooper has even left in secret, not telling Robinson — or his predecessor, former Republican Lt. Gov. Dan Forest — that he’s been gone.

Those concerns among Robinson opponents are bubbling up again on social media now that Cooper has been put on a short list of possible running mates for Vice President Kamala Harris, the presumptive Democratic nominee for president since President Joe Biden dropped out.

As political strategists and media pundits speculate about the pros and cons of each potential vice presidential pick, North Carolina’s succession laws stand out.

The state constitution says: "During the absence of the governor from the state, or during the physical or mental incapacity of the governor to perform the duties of his office, the lieutenant governor shall be acting governor. The further order of succession as acting governor shall be prescribed by law."

Does that mean Robinson could take executive action with Cooper out of town? It depends on whom you ask.

Robinson, the Republican nominee for governor, has had the opportunity to take executive action as acting governor many times — and he’s done it once before. But it likely would be difficult for him to make a permanent mark on state law.

After Hamas launched its attack on Israel in October, Robinson assumed the role of acting governor and declared "North Carolina Solidarity With Israel Week" while Cooper was in Japan pursuing economic development recruitment efforts.

Cooper could strike down executive orders upon return, so those could be short lived. And for Robinson to pass laws with Cooper out of the state, both legislative chambers would have to meet, pass a bill and get Robinson’s approval before Cooper gets back to the state, an exceedingly difficult feat — even in a legislature with a veto-proof majority.

North Carolina case law doesn’t appear to provide a significantly deeper interpretation of the state’s gubernatorial succession law. A big reason might be because the governor and lieutenant governor represented the same political party for most of modern history.

Meanwhile, legal analysts disagree over how the state’s gubernatorial succession laws should be applied.

Robinson’s office interprets the statute as written, said Brian P. LiVecchi, Robinson’s chief of staff and general counsel. "When the governor is out of state, the lieutenant governor serves with the powers and duties of the governor," LiVecchi said.

Gerry Cohen, an attorney who worked with the Legislature for more than 30 years, agrees with that interpretation.

"An acting governor has all the powers of the governor," Cohen said. "I researched this about 15 years ago and found out that the (lieutenant governor) as acting governor signed extradition warrants not uncommonly."

Cooper’s office disagrees. His office has previously said Robinson has no real authority to act as governor, so long as the governor can continue to perform his duties. The transfer of powers whenever the governor leaves the state dates back to at least the 19th century — long before the advent of technology that enables people to work from far-flung places. The office has pointed to rulings in other states striking down rules similar to the one in the North Carolina Constitution.

Critics, including those in Cooper’s office, say it’s antiquated and that in modern times, the governor can easily conduct the state’s business even if he or she is physically in Washington, or even Japan.

"The governor’s official duties at times require out-of-state travel, and the governor remains the state’s chief executive whether traveling for trade missions, meetings in Washington, National Governors Association Meetings, policy summits or visits with family," said Sadie Weiner, a Cooper spokesperson.

"North Carolina’s constitution contains language similar to other states where this issue has been settled reasonably to conclude that the governor’s powers do not transfer to the lieutenant governor so long as the governor is able to remain in communication and direct state government action when traveling," she said. "If the governor ceded official responsibility and authority during any physical travel outside North Carolina, it would lead to chaos and confusion."

When Cooper has announced travel out of state, he has been quick to emphasize that he’s still in charge. Before the Japan trip, his office said Cooper would continue to direct state business" while traveling.

Attorney General Josh Stein’s office agrees. State Department of Justice attorneys reviewed the issue years ago, according to Laura Brewer, a spokesperson for the office.

"Their conclusion was that under the constitution a governor is not absent from the state within the meaning of the relevant clause simply because he or she has physically stepped beyond the state’s borders," Brewer said. "A governor is absent only if they have lost the ability to contact the state during travel in a way that prevents them from fulfilling the duties of the office."

Stein, the Democratic gubernatorial nominee, will face Robinson in the November general election. Cooper is nearing the end of his second term as governor and is prohibited by law from running again.

Although Robinson has previously taken action as acting governor, some say he would be unlikely to make any controversial moves while campaigning for governor.

Although he used Cooper’s Japan trip to issue the pro-Israel proclamation, Robinson doesn’t appear to have taken any formal actions as governor when Cooper was in Europe for a week this spring, when he was on another economic development summit. Nor has Robinson tried to sign any bills into law, issue other executive orders, hire or fire state officials, or other gubernatorial duties, during shorter windows when Cooper has been out of state for a day, or even a few hours.

Historically, North Carolina’s statewide elections are close contests, often decided by 1 to 4 percentage points. To win, candidates typically need to appeal to unaffiliated voters — North Carolina’s largest voting bloc. So, Robinson would be wise to tread carefully, some in his party say.

"It would be complete political suicide [for Robinson] to try and preform roles of the governor," Dallas Woodhouse, former executive director of the state Republican Party, said on social media.

A spokesperson for Robinson’s campaign declined to comment on whether Robinson might want to take actions as acting governor in the next few months, if given the chance, to show voters how he might govern if elected.

U.S. Rep. Deborah Ross, a Democrat representing a Raleigh district, agreed that Robinson would hurt his reputation by seizing the reins of state government with Cooper out of the state.

"If Mark Robinson starts to do some of the crazy things … when Governor Cooper is out of the state, it will just give the voters a taste of what he would be like as governor," Ross said. "And I think that would be helpful to Josh Stein."

WRAL state government reporter Will Doran contributed to this report.