While the Wake County Board of Elections voted along party lines to appeal a 4th U.S. Circuit Court of Appeals ruling throwing out local school board and county commissioner districts, state legislative leaders are fighting to get back in as defendants in the case.
On Thursday, Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, issued a statement saying they plan to file a motion to intervene in the lawsuit and appeal the ruling by a three-judge panel of the 4th Circuit, saying Attorney General Roy Cooper refused to provide an adequate defense of the maps for the state. The decision by legislative leaders came a day after the Wake board voted to appeal the ruling to the full appeals court.
Earlier this week, Rep. Paul “Skip” Stam, R-Wake, said he hoped Berger and Moore would attempt to intervene as defendants and seek an immediate appeal to the U.S. Supreme Court. He said that the House speaker and Senate leader had been “involuntarily dismissed” as defendants from the lawsuit challenging the Wake districts, adding that when the case got to the 4th Circuit, no one went to bat for lawmakers who redrew the districts.
After Stam’s statement was published Tuesday at Carolina Journal Online, Anita Earls, an attorney for the plaintiffs in the lawsuit, told the News & Observer that Stam’s statement was “demonstrably false.”
But legislative leaders counter that Cooper’s office failed to act in the state’s best interests.
In an interview on Wednesday, Earls told CJ that plaintiffs had attempted to add legislative leaders as defendants. “The attorney general’s office filed briefs arguing that we had no legal right to add them and they should not be added,” Earls said.
The attorney general’s office usually represents the state in court and in lawsuits challenging the constitutionality or legality of state laws.
Noelle Talley, a spokeswoman for the Attorney General’s office, did not explain why the AG’s office didn’t want the legislative leaders listed as defendants. “Attorneys with our office argued to have the state and state plaintiffs dismissed from the case and the court agreed,” Talley said.
The General Assembly redrew Wake County’s school board districts in 2013. The plan included two “super districts” and seven small districts. In 2015, lawmakers redrew Wake County’s county commissioner districts, using identical maps.
An original 2013 lawsuit challenging the school board districts was dismissed by U.S. District Court Judge Terrence Boyle in March 2014. Later, other lawsuits were filed, challenging the school board and county commissioner districts. Earlier this year Chief U.S. District Court Judge James Dever ruled that the plaintiffs had failed to prove their case. However, on July 1, the 4th Circuit reversed Dever’s ruling in a 2-1 decision.
“Judge Boyle viewed the plaintiffs’ effort to add legislators to the case as futile since he dismissed the case on its merits,” said Amy Auth, a spokeswoman for Berger. “Legislative leaders have never appeared in the cases but decided to intervene because the 4th Circuit reversed the trial court decision and because [Attorney General] Roy Cooper refused to do his job.”
Boyle ruled that the legislative leaders had no enforcement power in overseeing elections, since the State Board of Elections is the agency that administers election law. “An amendment that casts [legislators] as defendants would be futile,” Boyle wrote.
GOP leaders ripped the way Cooper’s office has handled the case. Cooper is the Democratic nominee for governor. He faces incumbent GOP Gov. Pat McCrory and Libertarian Lon Cecil in the Nov. 8 general election.
“I think [the choice not to add Berger and Moore] was a way for Roy Cooper to wash his hands of it,” Stam said.
“Roy Cooper has once again refused to do his job and defend state law — this time creating chaos, confusion, and uncertainty for Wake County voters in the 11th hour in an election year,” Moore and Berger said in their statement. “That’s why we have no choice but to intervene and defend the right of voters to cast their ballots for geographically diverse representation in Wake County government in November.”
The primaries for county commissioner were held on March 15. Filing for the school board races ended on July 1, the same day the 4th Circuit’s ruling came out.
On Wednesday, the Wake County Board of Elections voted to appeal the 4th Circuit panel’s decision to the full 15-member Circuit Court. Neither GOP Chairman Brian Ratledge, who supported the appeal, Democratic member Mark Ezzell, who opposed the appeal, nor board attorney Charles Marshall returned phone calls seeking a comment on the action.
However, Ezzell posted his reasons for disagreeing “vehemently” with the decision on his Facebook page.
Ezzell said he thought the 4th Circuit’s decision, penned by Judge James Wynn, was correct. “It’s abundantly clear that the General Assembly’s districts were the result of illegitimate reapportionment considerations,” Ezzell said.
Appealing the ruling is a waste of taxpayer money and would further bring confusion to the election season, Ezzell said. Also, Ezzell said not appealing would force the General Assembly, who he called “the rightful defendant in this case,” to take responsibility for its actions. “If the legislature believes so strongly in their maps, they should pony up the money to take legal steps to re-enter the case,” Ezzell said.