Cooper may lack legal options on redistricting session


John Trump - Carolina Journal



RALEIGH — In fewer than 24 hours, the curtain fell on the political theater of a special redistricting session.

Gov. Roy Cooper, who called for the session, likely has no legal options to counter House and Senate action canceling his order to convene Thursday in a 14-day special session, one lawyer says.

“I don’t know what remedy there is,” whether the courts have jurisdiction over the matter, and if they would take it up should Cooper file a legal motion, said Gerry Cohen, former longtime General Assembly special counsel who dealt with several special sessions for redistricting.

Cohen said he looks at it more like a chess game in advance of the court decision to direct the Republican-controlled legislature on how to satisfy a ruling by a federal three-judge panel. The original decision found that 28 state legislative districts were unconstitutionally drawn because they relied too heavily on race as a factor. It ordered lawmakers to redraw the districts for a special election in 2017.

The U.S. Supreme Court sent the case back to the lower court for reconsideration to determine whether less severe options than a 2017 election were examined. The ruling stated the three-judge panel employed “minimal reasoning … a result clearly at odds with our demand for careful case-specific analysis.”

House Speaker Tim Moore, R-Cleveland, was blunt in condemning the governor’s proclamation ordering the legislature into a special session to run concurrently with the current regular session. “Governor Cooper has no constitutional role in redistricting, and his latest political stunt is an effort to deter House lawmakers from our work on a bipartisan budget that received support from both parties,” Moore said in a news release.

Wake Forest University professor John Dinan, whose research focuses on state constitutions, questioned Cooper’s timing in calling for a special session.

“It would be difficult to envision a worse time to focus on drawing legislative district lines than the middle two weeks of June, which is historically the period when the state House and Senate devote to hashing out a number of critical budget decisions in preparation for passing a final budget,” Dinan said.

The House fully intends to comply with the federal court’s order once it receives guidance on how to do so, Moore said. Cooper’s unanticipated call for a special session did not allow enough time to conduct a comprehensive redistricting process with sufficient notice and opportunities for public input, he said.

The federal court ordered redistricting to be done in regular session, not a special session, Moore said.

In canceling Cooper’s action, Republicans in both chambers relied on a state constitutional provision authorizing the governor to call lawmakers into special session “on extraordinary occasions, by and with the advice of the Council of State.”

They contend current circumstances are not extraordinary, and that Cooper did not meaningfully comply with receiving advice.

Cohen said Democrats voiced the same concerns — about a governor failing to seek meaningful advice from the Council of State — when former Republican Gov. Pat McCrory initiated special sessions of his own.

But what constitutes meaningful advice is murky constitutional territory, which some analysts have interpreted as requiring a formal vote, Cohen said.

“The Council of State is a body. It’s not a person. It’s an open question,” Cohen said.

The General Assembly correctly assessed that Cooper’s special session call erred in setting a 14-day timeline, Cohen said. The governor has no such constitutional power. Cohen said the legislature cannot be required to vote on anything, and the chambers met a state constitutional requirement that they adjourn a special session by joint action.

Although he couldn’t immediately recall the details, Cohen said at a similar situation happened at least once in the past 25 years. The legislature convened in special session, then voted to adjourn without acting.

The Department of Agriculture, the Department of Public Instruction, the lieutenant governor, secretary of state, treasurer, and attorney general all acknowledged receiving an email from Cooper chief of staff Kristi Jones on Wednesday stating the governor was going to call for the special session.

An old email address was used for Labor Commissioner Cherie Berry, who did not get contacted until Thursday.

The email was sent at 3:37 p.m., while Cooper was giving a press conference about his decision. It cited the need to redraw legislative districts pursuant to the Covington v. North Carolina case as the reason, and asked recipients to send a brief acknowledgement of receipt no later than 5 p.m. Wednesday.

Secretary of State Elaine Marshall responded that she concurred with Cooper’s decision. Treasurer Dale Folwell told Carolina Journal he would have voted against a special session had he been asked.

Jamey Falkenbury, a spokesman for Lt. Gov. Dan Forest, said while Cooper asked for advice, the email stated the time for the special session, meaning it was well on track before advice could be given in the little more than an hour allotted.

On his Facebook page, Forest advised against a special session. He said it would be premature because the only court ruling in the case requires the redistricting be done by November 2018, so no extraordinary circumstances were involved.

Campbell University constitutional law professor Greg Wallace said it is possible, albeit unlikely, a special election could be ordered in November or December.

When the three-judge panel takes up the case anew it could simply add language it says complies with the Supreme Court mandate, then come back with the same special election remedy. But that would be risky jurisprudence because the Supreme Court sent a fairly strong message the special election remedy was not acceptable, Wallace said.

John Trump is a staff writer for Carolina Journal.

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John Trump

Carolina Journal

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