Last week, North Carolina Governor Roy Cooper issued a Proclamation requesting a Special Session of the General Assembly for the purpose of redrawing legislative district maps.
The Proclamation cites the recent Supreme Court (SCOTUS) ruling on 2011 maps as the reason for calling a Special Session. The proclamation called for the special session to run for 14 days or until new maps are passed.
On June 6th, SCOTUS affirmed the 4th Circuit previous ruling that Republicans relied too heavily on the use of race when they drew new legislative and congressional lines in 2011.
However, SCOTUS decided it would not intervene in the August 2016 ruling handed down by the 4th Circuit court panel who found the aforementioned 9 state Senate and 19 state House districts to be racially gerrymandered. This was the likely trigger for Cooper’s Proclamation.
The districts affected are as follows:
- House districts: 5, 7, 12, 21, 24, 2
9, 31, 32, 33, 38, 42, 43, 48, 57, 58, 60, 99, 102, 107
- Senate districts: 4, 5, 14, 20, 21, 2
8, 32, 38, 40
The Congressional maps have since been re-drawn.
Putting the Cart before the Constitutional Horse
“Earlier this week, the United States Supreme Court unanimously affirmed that North Carolina’s legislative maps are unconstitutional because they were racially gerrymandered,” Cooper stated.
“That means Republican politicians have been picking their voters instead of voters picking their politicians,” said Cooper.
“Gov. Cooper has no constitutional role in redistricting, and we have no order from the courts to redraw maps by his preferred timeline,” said Sen. Ralph Hise (R-Mitchell) and Rep. David Lewis (R-Harnett)in a joint statement.
The Governor’s Proclamation was promptly ruled unconstitutional by the General Assembly.
Lt. Governor Dan Forest explains why.
Forest also issued the following statement:
“Given the current posture of the legal case surrounding the North Carolina House and Senate Districts, I believe it would be premature to call an extra session of the General Assembly at this time. The only ruling currently in place requires the districts to be redrawn prior to the November 2018 elections. The Supreme Court of the United States vacated the lower court’s further remedy ruling and sent that vacated decision back to the lower court. Additionally, we still await the mandate of the Supreme Court ruling. An extra session at this time is premature.
Also, an extra session at this time is unnecessary as the General Assembly is currently in regular session.
Finally, I do not believe this to be an “extraordinary occasion” as set out in Article III, § 5(7) of the North Carolina Constitution, considering the procedural posture of the legal case and the fact that the legislature is already in session.
I accordingly advise against ordering an extra session.”
Forests statement included two very key points – that the SCOTUS has not yet ruled further and SCOTUS had vacated the special election directive of the 4th Circuit.
Cooper Didn’t Follow The NC Constitution
NC Constitution states the Governor has to ask the advice of the Council of State.
Cooper did so, but did not garner the required advice from Council of State members. Instead, his Chief of Staff simply asked for acknowledgment of receipt of the Governor’s request:
— Colin Campbell (@RaleighReporter) June 8, 2017
In fact, Cooper’s office via one of his Chief of Staff, only issued a request to the Council of state minutes before holding a press conference.
— Amy Auth (@AmyAuth) June 8, 2017
The email from Kristi Jones clearly shows it was sent at 3:37 p.m., which was just a few minutes after Cooper held his press conference calling for the special session.
The formal proclamation wasn’t released until around two hours later.
Special Session Proclamation Fails, Time For Lawfare
Since Cooper’s proclamation for a special session did not meet North Carolina Constitutional muster, the Governor has indicated he wants the courts to force a special session.
It seems Cooper will get his wish. Partly.
A three-judge panel in the federal Middle District court in Greensboro said last Friday in a filing that the, “Court intends to act promptly on this matter upon obtaining jurisdiction from the Supreme Court.”
2/2 in correcting this wrong after the Supreme Court affirmed their map to be unconstitutional. – RC
— Governor Roy Cooper (@NC_Governor) June 9, 2017
The Middle District court panel in Greensboro may have a difficult time obtaining said advice though.
SCOTUS scolded the 4th Circuit for attempting to force a special election in North Carolina, basically saying the 4th Circuit overreached.
The unsigned SCOTUS order also said in part that the 4th Circuit failed to make any justification of why one would be needed.
North Carolina’s Constitution, since 1972, has held that elections for state legislative races are to be held every two years. For a court to attempt to overrule a state’s constitutional processes on elections would be unprecedented and would inherently disenfranchise the voters in the state in question.