Opinion: Daily Journal

Cooper’s selective constitutionalism in redistricting fight

Before Gov. Roy Cooper and his surrogates accuse the N.C. General Assembly of “thumbing its nose at the North Carolina Constitution and the U.S. Supreme Court,” the governor might want to reflect on his own actions in connection with legislative electoral redistricting.

The best place to start involves a question: What is the North Carolina governor’s constitutional role in the redistricting process? The answer: None.

Sure, Cooper has a right to comment on redistricting. He can criticize the General Assembly as much as he wants. With the bully pulpit of the state’s top elected executive office, his comments and criticism are bound to attract attention.

But, as governor, Cooper plays zero role in creating North Carolina’s election maps for the General Assembly or Congress. Neither the constitution nor state law calls on him to draw maps, to order others to draw maps, or to review maps once they’re completed. In fact, laws spelling out legislative and congressional election maps face a clear exemption from the governor’s review. You can find that exemption in Article II, Section 22 of the state constitution.

Unlike other recent disputes pitting the Democrat Cooper against the Republican-led legislature, disagreement about election districts has no direct impact on the governor’s ability to exercise executive authority. Legislative districts help determine the composition of the legislative branch alone.

So Cooper’s decision last week to insert himself into the redistricting debate falls outside the governor’s traditional role in the system of government set out within the N.C. Constitution.

It’s also worthwhile to examine the specifics of Cooper’s actions.

He is absolutely correct in asserting his constitutional authority under Article III, Section 5 to call an extra session of the General Assembly. But relying on that provision of the constitution, he must abide by its prescriptions.

One of them limits the governor’s extra sessions to those convened “by and with the advice of the Council of State.” The word “consent” does not appear after “advice,” so it’s not clear that the state constitution requires a vote or even a meeting of the Council of State.

One suspects, though, that those who crafted the constitutional language did not anticipate a governor would seek “advice” about an extra session in an email sent at 3:37 p.m. Wednesday, seven minutes after the scheduled starting time for his news conference announcing the session. In addition to that questionable timing, the governor’s notification to Council of State members asked only that they acknowledge receipt of his email, not that they provide recommendations or other “advice.”

One might reasonably conclude that the governor and his team thumbed their noses at that constitutional provision.

The constitution also limits the governor to calling extra sessions “on extraordinary occasions.” Supporters argue that the U.S. Supreme Court’s June 5 ruling throwing out 28 legislative districts as examples of illegal racial gerrymandering represents a clear case of an “extraordinary” occasion.

While it’s unclear whether courts would agree with that assessment, it’s quite clear that legislators are meeting in a regular session. That session started in January and has no adjournment date. Nothing prevents lawmakers from addressing redistricting issues during their regular session. Nothing prevents Cooper from urging them to take action during that session.

Also clear is language in the original court order throwing out disputed legislative districts because of racial gerrymandering. The order called on lawmakers to draw new districts in a regular session — not an extra session.

Lawmakers cited all three concerns about Cooper’s extra session — the questionable nature of the Council of State’s “advice,” the fact that lawmakers are meeting in a regular session, and the court order requiring redistricting revisions to be made during a regular session — in declaring Cooper’s action neither valid nor constitutional.

One can argue with their interpretation. But it’s clear that rather than “thumbing its nose” at the state constitution, the General Assembly specifically relied on language within the constitution to reject Cooper’s plan.

Lawmakers didn’t even address a clearly unconstitutional portion of Cooper’s planned extra session. The governor set a two-week time limit for the session. He has no constitutional authority to place such a constraint on lawmakers.

Once again, a reasonable observer might conclude that the governor and his team had thumbed their collective noses at the N.C. Constitution. Yet it was Cooper spokesman Ford Porter who used that analogy to describe legislators’ actions. And Porter extended the accusation to the General Assembly’s response to the U.S. Supreme Court.

The facts paint a different picture.

No one disputes that the U.S. Supreme Court, without comment or dissent, upheld the trial court ruling against North Carolina’s legislative districts in North Carolina v. Covington. The single line, “The judgment is affirmed,” appears at the top of a 12-page Supreme Court order list issued June 5.

Perhaps Cooper’s lawyers failed to read the rest of the document. If they had, they would have noticed that the last three pages of the order list offered more detail. Those three pages featured the Supreme Court’s unanimous opinion that the trial court in Covington had failed to make a compelling case for holding special legislative elections in 2017.

After chiding the trial court for the “most cursory fashion” in which it addressed arguments for and against special elections, the justices added “we cannot have confidence that the court adequately grappled with the interests on both sides of the remedial question before us.”

The Supreme Court threw out the special elections and ordered the case sent back to the trial court for “further proceedings.”

This order arrived on a Monday. Cooper announced his extra legislative session in a news conference the following Wednesday. The Supreme Court had not yet returned the case officially to the trial court, nor had the trial court scheduled any hearings or submitted any orders based on the Supreme Court’s ruling.

Cooper made no reference to the Supreme Court’s concerns about a special election. Nor did he mention the fact that any additional action from the trial court must withstand the scrutiny of a united Supreme Court.

Instead Cooper and his team wanted the public to believe that the two days that had elapsed between the Supreme Court’s order and his news conference represented an unreasonable delay in action on the part of state lawmakers.

One could conclude just as easily from the same set of facts that lawmakers had been waiting to see how federal courts resolved all outstanding redistricting disputes before taking action on new election maps. That wait-and-see approach displays deference to the legal process, not defiance of it.

Why did the governor step into the redistricting debate when he did? Calling a constitutionally dubious extra session of the General Assembly and ignoring the U.S. Supreme Court’s unanimous order spelling out concerns about the potential impact of special legislative elections in 2017?

A federal trial court order issued Friday evening offers a clue. In it, the three-judge panel in Covington reveals that the challengers of North Carolina’s legislative election districts, challengers who are also Cooper’s ideological allies, filed new paperwork Thursday. Those challengers are asking the court to proceed with briefings and hearings that could pave the way for a special election in November.

The court order says Cooper’s allies argue that legislative leaders oppose the idea, that the N.C. State Board of Elections holds no position, and “that the State of North Carolina ‘agrees that the public interest calls for a prompt decision on the possibility of a special election in 2017.’”

What evidence exists that the “State of North Carolina” wants a prompt decision about a special election? Official discussion of the Supreme Court’s June 5 decision has been limited to Cooper’s news conference calling for an extra legislative session. That news conference took place the day before Cooper’s ideological allies filed their latest court documents.

It’s interesting timing, to say the least.

Mitch Kokai is senior political analyst for the John Locke Foundation.



  • patriotflllc

    We must understand that Ol’ Ray Cooper doesn’t show any regard for the NC Constitution because the 4th Circus Court of Appeals have signaled that they will be glad to act in direct confrontation with the US Constitution to stand with Ol’ Ray. It’s the same game plan the national Democrats are using to assault President Trump’s every action. This was why Dinghy Harry Reid suspending the “60 vote rule” for inferior Court appointments will have long-term devastating damage to what’s left of federalism, unless our US House Members start impeaching some judges for their illegal actions and rulings.