Judge Stephens Issues Temporary Restraining Order to Block GOP Power Grab
Posted on December 31, 2016
It is a minor victory, but not an insignificant one. On Friday, December 30, 2016, Wake County Superior Court Judge Donald Stephens issued a Temporary Restraining Order (TRO) in favor of Governor-Elect Roy Cooper, blocking the legislation passed by the General Assembly in a special session.
In North Carolina a TRO is what courts call an “extraordinary measure” taken by a court to maintain the status quo during litigation for a period of time sufficient to allow evidence to be gathered and arguments to be developed. Think of it as a Pause Button in cases where a party, like Cooper here, is asking a court to stop something that, once it is done, cannot be adequately undone.
Under North Carolina Rule 65, a TRO may be issued if the party seeking the order proves immediate and irreparable injury, loss, or damage will result if the TRO is not issued. In this case, Cooper argued that if the legislation is permitted to go into effect the NC Board of Elections would be disbanded resulting in a cascade of power shifts that significantly reduce the power of the Executive in violation of the NC Constitution. Cooper’s argument is based on separation of powers.
The challenged legislation would have begun disbanding the State Board of Elections on Sunday, less than three weeks after the bill passed. As reported by the New York Times, Stephens stated:
“It certainly is not going to harm the state or the agency or any agency to delay that termination for 10 days so that we can have a hearing, a more complete hearing on the legal issues, the constitutional issues.
Under NC law, a TRO can last for no more than 10 days, unless the parties otherwise consent. According, Judge Stephens will hear more arguments about the disputed law this coming Thursday.
Stephens’ eventual 0rder is but step one in the case challenging the General Assembly. The case will ultimately be heard by a three judge panel. Given the implications for 2017 special elections, it is likely that the case will continue to move quickly through the courts.