“Upon What Meat Doth This Our Caesar Feed That He Hath Grown So Great?” Fair Voting Districts, the Board of Elections and the Constitutionality of North Carolina Votes
Posted on June 16, 2017
You know what I don’t want to be when I grow up? Governor of North Carolina. Elected on the slimmest of margins, the current governor, Roy Cooper, goes to work every day knowing that the North Carolina General Assembly (“NCGA”) is focused on two issues: (1) limiting Cooper’s power and (2) maximizing their own. Because the GOP has a veto-proof majority, there is very little Cooper can do about it. And so, he is at least until the next legislative election, entangled in a Sisyphean battle for partisan power.
I don’t suppose Cooper’s lot is quite as grave (pun intended) as England’s late King Edward V and the battle between the English royal Houses of Plantagenet and Lancaster; but it has occurred to me more than once that I’m glad Cooper doesn’t have two small sons and the NCGA does not presently possess a tower in which to lock them.
This week there were two judicial decisions in lawsuits between Cooper and the NCGA that directly impact NC voters. To my eye, both are setbacks to North Carolinians who wish to elect their legislators, rather than to be elected by them. While I am certain that both Representative Grier Martin and Senator Jay Chaudhuri would have picked me as their constituent, I do think it makes more sense the other way around.
As you may remember, in the waning hours of 2016, the NCGA passed a law merging the Board of Elections (“BOE”) and the Ethics Commission. The effect was to remove Democrat-held seats from the BOE, thereby giving the GOP more power over how elections are conducted. That law was held to be unconstitutional by a three judge panel. Undaunted, the General Assembly drafted a second piece of legislation creating a “bipartisan” BOE (and eliminating the Ethics Commission) that requires that a Republican is chair of the board during presidential election years. Cooper sued again over the amended law.
The same three judge panel dismissed Cooper’s second lawsuit. As expected, Cooper appealed. It is common appellate practice for a party to seek a “stay” of the lower court’s order pending the appeal. In other words, the loser asks the court for a time-out until the appellate court can rule. Cooper filed such a motion. Yesterday, he lost, which means the revised law will take effect during the appeal.
Given the ridiculous run of good luck in North Carolina election law jurisprudence of late, I should have seen this coming. At risk of theatricality, in battles like this one, it can be helpful to remember that Allies were losing after the first day of the Normandy Invasion. The denial of the stay is a tactical loss. The battle wages on.
The second decision of note this week was a one-line order from SCOTUS. You may remember my recent jubilation over SCOTUS’s decision in North Carolina v. Covington, which upheld a lower court’s determination that NC’s state legislative districts were unconstitutional. SCOTUS, in Covington, requires a lower court to determine whether a special election is required to remedy the illegal gerrymandering.
When SCOTUS rules in a case it issues a “judgment,” also called a “mandate,” which is a piece of paper that magically makes the Court’s order real (read, enforceable). Judgments are not issued simultaneously with a ruling. There is a big book of tedious rules of Supreme Court practice that say when judgments will be entered. Before such time, things like a motion for re-hearing can be filed. All you need to know is this: The Court rules, a specific period of time elapses, a judgment or mandate is entered and the order becomes … poof… final.
Cooper asked SCOTUS to issue the judgment immediately to get the case back in front of the lower court judges to figure out if NC will have a 2017 special election. SCOTUS said “no” it will not alter its normal procedure.
Fear not, however, about the GOP’s chances of getting a re-hearing before a judgement is entered. SCOTUS almost never grants such a motion. A SCOTUS ruling is not a quick or unconsidered thing and the Court almost never feels like it needs to reconsider what it just said. In this way, SCOTUS is a lot like my dad–“because I said so”–being the answer to most entreaties for reconsideration.
What does this mean for a North Carolina special election? It’s not likely. The GOP will drag its heels and make the process of getting a hearing before the court take as long as possible. Then it will argue that a special election is practically impossible, because, golly, it’s almost time for the election to be held.
It will look like this…
With the uproar in New York and DC over a Shakespeare in the Park rendering of Julius Caesar, in which the Emperor bore a remarkable resemblance to POTUS, I could not resist my own nod to the Bard.
With three major SCOTUS losses in a row these small GOP victories are “meat on which” the state GOP can feast. That said, the larger game at hand is undecided. The NCGA can slow-walk the court processes to avoid a 2017 election, but the maps must nonetheless be redrawn and North Carolinians exhausted of a NCGA spending its days giving itself more power, will cast their lots accordingly.
When that happens, Cooper might not have such a bad job after all.