The state Supreme Court will hear two cases on Monday that could determine how much power North Carolina lawmakers have as the 2018 elections approach.
Gov. Roy Cooper has asked the seven justices to review a three-judge panel’s decision that upheld the merger this year of the state elections board and ethics commission, a case that could determine whether Republicans will have leadership on elections boards at the state and county level during presidential election years when North Carolina voters also elect their governor.
Another case that will go before the state’s highest court on Monday is a redistricting challenge sent back to the justices earlier this year after the U.S. Supreme Court affirmed federal court rulings finding unconstitutional racial gerrymandering in 28 state legislative districts and two unconstitutional gerrymanders in place from 2011 to 2016.
When Republicans had a majority on the state Supreme Court, the justices upheld the 2011 maps twice.
Now the issue goes back to a court on which Democrats gained a majority in the November elections.
Attorneys for lawmakers have asked the North Carolina justices to dismiss the appeal, saying the challengers have already gotten the relief they sought from the federal courts.
Attorneys for the challengers argue otherwise.
On Friday, while General Assembly committees and the state Senate debated new lines drawn by Thomas Hofeller, the same Republican Party mapmaker who drew the lines in 2011, attorneys for the challengers pointed out that no plan has been voted on and accepted by the federal judges. Furthermore, the attorneys said, the new lines put forward by Republican lawmakers include districts in Mecklenburg and Wake counties that challengers contend are racial gerrymanders.
Attorney General Josh Stein, a Democrat and former state senator who has spoken out against Republican lawmakers, argued against dismissal of the case in a court document filed earlier this month. Stein and Alec McC. Peters, a senior deputy attorney general who defended the state while Cooper was the state attorney general, argued the case should be sent back to the panel of three state judges who initially upheld the 2011 maps and ask them to reconsider their decision, knowing now what the federal courts have done.
The cases in North Carolina, a closely divided state, are being watched closely by national organizations concerned about voting rights.
The Brennan Center for Justice at New York University, a nonpartisan law and policy institute, has asked to weigh in on the case battling the Republican lawmakers’ creation of the eight-member N.C. State Board of Elections and Ethics Enforcement.
The law, which passed despite a veto by Cooper, extends the tenure of the executive director of the state elections board selected when Republicans had control of both General Assembly and the executive office at least through the 2018 elections. Kim Strach, who currently holds the position, could only be replaced if the new board, which would hold an equal number of Democrats and Republicans, chose to do so.
Cooper has yet to make any appointments to the board while his lawsuit makes its way through the courts. Attorneys for Cooper have argued in court that the governor, as has been the case for decades, should be able to have a say in who oversees elections in a state where he defeated one-term Republican governor Pat McCrory.
Cooper has argued that an eight-member board could become locked along party lines, creating a stalemate that would prohibit him from exercising the power that he contends that state Constitution provides him. Judges who have reviewed that argument have said Cooper has yet to show such a harm, but if that were to happen, he could then seek relief from the courts.
While making changes to the state elections board and drawing district lines that strongly favor the election of Republicans, the legislative leaders who gained control of both General Assembly chambers in 2010 have argued that Democrats made similar power grabs when they had majority control for nearly a century.
Cooper’s advocates have argued that the battle over the elections should not be viewed only as a power struggle between the Democrat in the executive branch and the Republicans at the helm of the General Assembly. Ford Porter, a spokesman for Cooper, said in June the case was protecting “access to the ballot box for North Carolina voters.”
Local election boards, which under the new law would have four members, set hours for early voting and other initiatives. If the local board deadlocked on calls for more sites where people could vote early, the fallback would be to go with the least number of sites, Cooper’s administrators have said.
Republicans have framed the idea as a “bipartisan one,” and they have been critical of Cooper for continuing what they described as “partisan politics” when he challenges them in court.
When a panel of three judges ruled in June that they did not have jurisdiction to hear the arguments Cooper was making about the merger of the elections and ethics commission, Phil Berger, the Rockingham County Republican who lead the state Senate, and Tim Moore, the Republican from Cleveland County who heads the state House, issued a statement urging Cooper to “abandon his taxpayer-funded pursuit of total control of the board responsible for regulating his own ethics and campaign finance conduct.”
“Today the three-judge panel swiftly rejected Roy Cooper’s latest attempt to drag his political battles into the courtroom – and instead delivered a victory to North Carolina voters, who should now expect their elections and ethics laws to be enforced fairly and with bipartisan cooperation,” Berger and Moore said in the June 1 statement.
In seeking to weigh in on the North Carolina case, Brennan Center attorneys argued the North Carolina justices should look beyond the “they did it, too” arguments that Republicans have used to support their actions.
The Brennan Center attorneys “recognize that political entrenchment in North Carolina has been a bipartisan phenomenon,” they stated in a court document filed on Aug. 3 with the case. “The Democratic Party also sought to manipulate the political process to frustrate the will of North Carolina voters when it had the chance. But ‘they did it too’ is not a legal defense, especially when the real losers from the escalating series of violations are not North Carolina’s political class, but the rest of this state’s citizens. ‘We the people’ are entitled to a political system in which elected leaders are responsive to citizens and can be held accountable for their decisions. Where, as in this case, the other branches abdicate or otherwise cannot fulfill their duty to safeguard the people’s fundamental interest in representative government, it is incumbent upon this Court to intervene. We urge the Court to do so.”