State justices hear two challenges to legislative power


Rick Henderson - Carolina Journal



RALEIGH — The power struggle between the Republican-led General Assembly and Democratic Gov. Roy Cooper resumed Monday in two cases argued in state Supreme Court.

In Cooper v. Berger, the governor said the General Assembly violated separation of powers when it merged the State Board of Elections and the state Ethics Commission and, with the move, stripped some of Cooper’s powers. In the Dickson v. Rucho redistricting challenge, plaintiffs said the state justices should send the case back to a trial court, even though federal courts are considering the legality of disputed congressional and legislative districts at the same time.

Attorney Jim Phillips, who represented the governor, frequently cited last year’s McCrory v. Berger decision. In it, the state justices rejected a commission created by the legislature with executive-branch duties as a violation of the separation-of-powers doctrine.

The court in McCrory ruled the governor must have the power to appoint, remove, and supervise members of commissions who share his “views and priorities,” Phillips said. The court also rejected the legal structure of the board in McCrory. In both instances, he said, the new Bipartisan State Board of Elections and Ethics Enforcement failed the McCrory ruling’s requirements.

The General Assembly formed the election/ethics board earlier this year after the court declared a similar board (created in December, just before Cooper was inaugurated) unconstitutional. A three-judge panel said the eight-member board created last year — giving the General Assembly and the governor four appointments — violated separation of powers.

The governor would pick all eight members of the new board, divided equally among Democrats and Republicans, based on a list of candidates provided by the state parties.

Phillips said this change wasn’t good enough.

Because the board administers and executes campaign laws, has discretion over matters including early voting hours, and would be chaired by a Republican during even-numbered (legislative election) years, it cedes too much power to the General Assembly.

Phillips also objected to a provision in the law leaving State Board of Elections Executive Director Kim Westbrook Strach in charge of the new board until 2019.

Legislative attorney Noah Hufstetler said the board is quasi-judicial. It can conduct hearings and receive sworn testimony. He also noted the governor has full appointment power of all board members, even though the candidates come from lists submitted by the political parties.

Hufstetler also cited Article III, Section 5, Part 10 of the North Carolina Constitution, which states: “The General Assembly shall prescribe the functions, power, and duties of the administrative departments and agencies of the State and may alter them from time to time.”

Article III is specific, he said, and should take precedence over the general provision of separation of powers or any “views and priorities” a governor may hold.

Monday’s hearing also marked the third time the justices have confronted Dickson v. Rucho, which has ping-ponged for years between the federal and state courts. Several Democratic legislators and activists sued in 2011, claiming Republicans violated the Voting Rights Act by packing too many minority voters into legislative and congressional districts. The state Supreme Court in 2014 rejected the lawsuit, but on appeal the U.S. Supreme Court returned the case to North Carolina. In 2015, the state justices said race was a factor but not the main one in the design of the maps. The federal justices have called on their state counterparts to reconsider Dickson in light of the latest redistricting rulings from Washington, D.C.

This time, attorneys representing the legislature said the court had no reason to rule in the case, as the matter was moot.

The attorneys noted the U.S. Supreme Court will fold Dickson into a case argued next month involving gerrymandering in Wisconsin. And the General Assembly is wrapping up a new set of court-ordered legislative maps which will go before a three-judge U.S. District Court panel, and almost certainly again to the federal justices on appeal.

Ultimately, the legislature’s attorneys said, federal courts will decide whether the maps pass constitutional muster, so the supremacy doctrine — federal constitutional matters supersede state actions — would overrule any ruling the state Supreme Court might make.

The plaintiffs said federal courts might say new district maps satisfy racial gerrymandering concerns. But in doing so the maps may violate other state constitutional provisions.

It’s unclear when the justices will rule on either case.

Rick Henderson

Carolina Journal

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