Gov. Roy Cooper’s message Wednesday to Republican leaders was clear: either they draw new legislative maps soon or the courts will do it for them.
The Democratic Governor, who has been in a battle for power with the legislature since taking office, signed a proclamation for a special session to begin at 2 p.m. Thursday for a period of two weeks or until a new redistricting plan is enacted, whichever comes first.
In North Carolina v. Covington, the U.S. Supreme Court affirmed earlier this week a lower court’s finding that 28 state House and Senate districts were racially gerrymandered. The order the highest court affirmed mandates that North Carolina redraw new House and Senate district plans and enjoins the state from conducting any elections for state House and Senate offices after Nov. 8, 2016 until a new redistricting plan is in place.
“The very existence of this legislature is and has been unconstitutional for five years, and they are under a unanimous court order from the highest court in the land to fix this. Now is the time,” Cooper said at a press conference. “The first step toward leveling the playing field of our democracy is to draw a new map.”
“Gov. Cooper has no constitutional role in redistricting, and we have no order from the courts to redraw maps by his preferred timeline,” they said in a joint statement. “This is a clear political stunt meant to deter lawmakers from our work on raising teacher pay, providing relief to the communities affected by Hurricane Matthew and putting money back into the pockets of middle-class families. We are already in session and will continue to focus on this important work.”
Cooper said that if lawmakers adjourn his special session without new maps, it will signal to the courts that they would rather have the courts draw them.
“This special session starts the clock. Delay only thwarts justice,” he said. “We have fought for too long over these maps, let’s put an end to it and create districts that are fair for North Carolina voters. The sooner we start, the sooner we can end the bickering and focus on important policies and priorities.”
The special session will run concurrently to the regular session and is not unprecedented. There was a redistricting extra session in 2002 that was called to order two weeks before the beginning of the regular session and lasted for the duration of the regular session, according to the Governor’s Office.
In calling for a two-week special session, Cooper referred to North Carolina statute 120-2.4, which specifically states that if the legislature does not act to remedy defects in its redistricting plan within two weeks, the court may impose an interim districting plan for use in the next general election.
The statute does not expressly state what starts that two-week window, so the special session is meant to establish a clear timeline.
Whether or not that timeline is legally binding is not clear.
Gerry Cohen, former special counsel to the state legislature and an expert on state election law, said he views the Governor’s announcement today as a chess move. Case law states that the legislature has a reasonable time to redraw maps that are found unconstitutional, and the statute referenced above gives them at least two weeks to do that, he said.
The courts, he added, will likely dictate what happens next by presenting its own scheduling order or by ordering both parties to the case to present their ideal scheduling order and then adopting a timeline from there.
It’s important to note that redrawing the maps and holding special elections in 2017 are different issues. The order that the Supreme Court affirmed already mandates that new maps be drawn. The question sent back to the lower court is whether or not special elections will be a remedy for the unconstitutional gerrymanders.
The clock is ticking on the ability for the state to hold special elections this year — administratively, it’s only possible for about two or three more weeks, Cohen said.
Attorneys for the appellees in Covington and Democrats have argued that the Republicans are dragging their feet in an effort to run out that clock and win by default.
Appellees in Covington asked the Supreme Court on Tuesday to formally mandate the issue of remedial special elections back to the lower federal court. It appeared Wednesday via Pacer that there was a court filing to do that, and a clerk with the U.S. District Court for the Middle District of North Carolina confirmed a three-judge panel had jurisdiction of the case.
However, later Wednesday, a Supreme Court reporter tweeted that the Chief Justice requested a response to the appellees’ request for a formal mandate. The Supreme Court website had not been updated Wednesday with any new filings in the case to confirm that.