UPDATED, June 16, 4:33 p.m. The Court of Appeals issued an order refusing Cooper’s requested stay. The elections/ethics board merger will remain in effect at least until the court hears arguments and comes to a decision about the constitutionality of the new board.
1:17 p.m. Late Friday morning, Gov. Roy Cooper filed an an appeal of the Superior Court’s decision with the N.C. Court of Appeals, asking for an immediate stay of the ruling until the underlying litigation, both federal and state, is settled. The governor’s filing is here.
A state Superior Court panel and the U.S. Supreme Court on Thursday dealt Gov. Roy Cooper and his political allies two setbacks. They face new challenges trying to force the General Assembly both to scrap an election enforcement board it created in April and to hastily redraw legislative districts in time to hold a special election this fall.
The Supreme Court order, signed by Chief Justice John Roberts (who consulted with the other members of the court), denies a request plaintiffs made last week to speed up the redistricting process. As a result, the calendar may run out before an election could be scheduled this year.
The high court ruled June 5 that 28 legislative districts enacted in 2011 were unconstitutional racial gerrymanders. While agreeing with the substance of a three-judge trial court’s ruling in the case, Supreme Court justices threw out a proposed remedy of special elections in 2017.
The justices agreed unanimously that the trial court had not made an adequate argument in favor of the unusual practice of holding an off-year election to address the constitutional issue. The Supreme Court agreed to send the case back to the trial court for further proceedings. The case has not yet returned to the trial court.
The three-judge federal panel handling the redistricting lawsuit last Friday said it wanted to rule promptly on the plainitffs’ request for a speedy resolution. It asked the plaintiffs, the state, and the State Board of Elections to respond as quickly as possible.
This week, Cooper said any budget passed by the current General Assembly would be unconstitutional. The North Carolina NAACP urged the legislature to stop doing other business until it drew new maps and held new elections. Such a delay would take months and could leave the state without a budget until the new members were seated — and the General Assembly had no intention of doing so.
Roberts asked attorneys for the parties to respond by Tuesday to the plaintiffs’ request. Former U.S. Solicitor General Paul Clement, on behalf of the General Assembly, asked Roberts to allow the trial court its normal 25 days to deal with the matter. Rushing the issue could cause “electoral chaos,” Clement said.
Even if new maps were in place, and received immediate court approval, the state would have to open a filing period for candidates, hold primary elections, and allow time for absentee ballots to be mailed and returned.
The high court’s order makes the timetable for a 2017 election even tighter.
Meantime, the state court rejected a request from Cooper to block a law enacted in April merging the State Board of Elections with the Ethics Commission into a single board while a lawsuit challenging the new board was on appeal.
The court initially gave Cooper a victory when he challenged a similar board created in December. The judges said the first board violated separation of powers because it granted the governor too little authority to appoint members.
A couple of weeks ago, the Superior Court panel tossed out Cooper’s most recent lawsuit. It challenged the new N.C. Bipartisan State Board of Elections and Ethics Enforcement. The board created in April has eight members, split between Republicans and Democrats, all appointed by the governor.
Cooper has not appointed any members to the new board, leaving it vacant even though the federal redistricting panel asked the board to weigh in on the lawsuit asking for a special election this year.