Attorney General Josh Stein serves officially as the top defender of North Carolina’s state laws. He’s held that job for more than five years.
Before Stein, Roy Cooper occupied the attorney general’s post for 16 years.
Considering those resumes, one might expect a heightened degree of respect for state law from Stein and Cooper, now the state’s two-term governor. It should shock us to see either man treat a state law as a mere policy preference to discard. They shouldn’t treat the law as a request to ignore.
But that’s exactly what’s happening in the case of redistricting. In offering the N.C. Supreme Court a plan for addressing challenged election maps, Cooper and Stein suggest that justices flout clear standards set in state law. Those standards date back almost two decades.
The state’s highest court will hear oral arguments Wednesday in a case challenging maps for N.C. congressional and legislative elections. Critics want Supreme Court justices to reject the maps. These opponents argue that the maps resulted from unconstitutional “extreme” partisan gerrymandering.
A unanimous bipartisan three-judge Superior Court panel disagreed. That panel upheld the maps. The Supreme Court, with its 4-3 Democratic majority, would have to overrule the lower court to grant the opponents’ wish.
Count among the maps’ opponents Cooper and Stein, both Democrats. They don’t like election maps drawn by the General Assembly’s Republican leaders. In a Jan. 21 friend-of-the-court brief, Cooper and Stein explain why they believe the Supreme Court should throw out the maps. Then they recommend a plan for the court to oversee new maps.
It might surprise you to learn that state law already covers this exact scenario.
Chapter 120 of the N.C. General Statutes includes section 120-2.4. It’s titled “Opportunity for General Assembly to remedy defects.”
“If the General Assembly enacts a plan apportioning or redistricting State legislative or congressional districts, in no event may a court impose its own substitute plan unless the court first gives the General Assembly a period of time to remedy any defects identified by the court in its findings of fact and conclusions of law,” the statute dictates. “That period of time shall not be less than two weeks.”
The law’s next section addresses the possibility that lawmakers fail to meet the deadline. “In the event the General Assembly does not act to remedy any identified defects to its plan within that period of time, the court may impose an interim districting plan for use in the next general election only.”
In summary, the General Assembly gets at least two weeks to correct any constitutional problems with its election maps. If legislators miss the deadline, courts can impose their own plan. But court-drawn maps can last no longer than a single election cycle.
That’s state law.
In their brief, Cooper and Stein grant that law little of the respect one might expect from a current and former N.C. attorney general.
The two men suggest that the Supreme Court “could” give lawmakers a chance to draw new maps, but only “if there is sufficient time to do so.” The brief mentions G.S. 120-2.4(a)’s reference to giving the legislature two weeks to act. Cooper and Stein call that provision of state law a “request.”
Later, the governor and attorney general take aim directly at the law’s second provision. “[I]f this Court does order new remedial plans, it should clarify that those plans are not limited by section 120-2.4(a1) of the General Statutes,” Cooper and Stein argue.
It’s the provision that says any court-imposed map lasts for a single election cycle. “That provision purports to limit this Court’s authority to remedy constitutional violations.”
The General Assembly “lacks authority to place limits on this Court’s power,” the governor and attorney general contend. “This Court has long recognized that policies ‘recognized by the General Assembly’ cannot limit the scope of this Court’s authority to fashion remedies to constitutional violations.”
Cooper and Stein appear to treat state law as mere policy for judges to ignore. That’s a disturbing argument from officials who are constitutionally obligated to uphold state laws.
One might suspect that Cooper and Stein, as partisan Democrats, dislike G.S. 120-2.4 because it’s the product of some diabolical plot from Republican legislators.
It’s not.
The law dates back to 2003. At that time, a state Senate run by Democrats and a House split evenly between the two major parties adopted a redistricting plan. It replaced court-imposed election maps used in 2002.
The 2003 redistricting law included today’s provisions clarifying the General Assembly’s power to respond to adverse court rulings. The law responded to the Stephenson v. Bartlett state Supreme Court case. That landmark case set mapmaking standards still in use today.
Courts didn’t ignore the 2003 law during the rest of that decade, when Democrats controlled redistricting. Judges didn’t treat the law as a request or policy preference in the 2010s, after Republicans won the power to draw election maps.
Yet now, when a Democratic-majority court could take steps to benefit Democratic partisans, Democrats Cooper and Stein treat the 2003 statute as a minor impediment to their plans.
That’s not the kind of devotion to state law one ought to expect from the men who’ve represented North Carolina as attorney general for more than two decades.
Mitch Kokai is senior political analyst for the John Locke Foundation.