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NC Supreme Court takes up redistricting, power struggle between Cooper, legislature

The North Carolina Supreme Court heard two major cases this morning — one about redistricting and voting rights and the other about the legislature’s efforts to diminish the Governor’s powers.

In Dickson v. Rucho, a challenge to state legislative and congressional maps, the plaintiffs asked for the case to be remanded back to the trial court for a judgment in their favor.

“We don’t yet have a remedy ordered by a state court,” said one of the plaintiff’s attorneys, Anita Earls, who is Executive Director of the Southern Coalition for Social Justice.

Earls argued that when the court decides federal issues that are contrary to binding precedent from the U.S. Supreme Court, as it did in Dickson and North Carolina v. Covington, the U.S. and North Carolina Constitutions impose a duty to conform its decision to federal law and enter a judgment for the plaintiffs.

She also argued that the state trial court needed to address state constitutional violations, whereas the federal court could not. Earls called the trial court’s finding erroneous and said the plaintiffs deserved a remedy after their rights were impacted by the unconstitutionality of the maps.

“A violation has been shown, it’s now time for remedial proceedings,” she said.

The attorney for legislative leaders, Michael McKnight, argued that the plaintiffs don’t have the ability to file for a remedy because the case is moot.

“There is no case or controversy right now with regard to the 2001 maps they’re challenging,” he said, noting that those maps can’t be used again because of the federal courts’ rulings.

McKnight added that if there is a problem with the new districts once enacted, the plaintiffs would have to file a new lawsuit.

Special Deputy Attorney General Alec Peters argued for the state that the case should be remanded back to the state trial court for a judgment in favor of the plaintiffs.

*****

The state Supreme Court judges also heard argument in Cooper v. Berger over the General Assembly’s changes to the State Board of Elections and State Ethics Commission, now knows as the State Board of Elections and Ethics Enforcement.

Jim Phillips, the attorney for Gov. Roy Cooper relied on the Separation of Powers clause of the North Carolina Constitution.

He said it is “crystal clear” after an examination of the functions and duties of the Bard that it is executive in nature. Because of that, Cooper should be able to appoint a majority of the Board so that they share his views and priorities.

A provision of the law creating the new Board allows for former Gov. Pat McCrory’s Board of Elections appointment Kim Westbrook Strach to remain Executive Director over the new Board.

Members of the new Board are to be split evenly between Republicans and Democrats, whom Cooper would be required to choose from a slate of people approved by the heads of each party. Phillips said given the choice, Cooper wouldn’t appoint anyone from the list already released.

An example Phillips of an executive function that the Board carries out is early voting. He said Cooper has said he wants to expand early voting, but a Board that doesn’t share his views and priorities could prevent that from happening.

Noah Huffstetler III, who represents legislative leaders, said the General Assembly has the final decision making role in the Governor’s role with respect to the Board.

He said the restructuring of the Board was to better ensure its independence and quasi-judicial nature. He added that Cooper’s argument was “stunning” in that he wants to control people so that they are “robotically inclined to follow his views and priorities.”

“That was not the legislative intent of that statute,” he said of the Constitution.

Phillips said the case was not about a challenge to the the legislature’s restructuring of the entire board.

“The Governor’s challenge is to the General Assembly’s appointment of the Executive Director and the taking from him the ability to appoint a majority of members who share his views and priorities.”

He added that if the Supreme Court remanded the case back to a lower court, they would only end up arguing again back at the high court.

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