A month into North Carolina’s General Assembly session, major battles are being waged not in the legislature but in courtrooms from Raleigh to Washington.
And they’re costing taxpayers millions.
Among the issues:
▪ Who wins the power showdown between Gov. Roy Cooper and legislative leaders?
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▪ Will North Carolina voters return to the polls this year – with new voting lines?
▪ And will House Bill 2 go away?
“It seems like the third branch is getting pulled in to be the referee in these partisan battles between the executive branch and the legislature,” said Michael Bitzer, a political scientist at Catawba College.
Some legal clashes are old. A suit against the 2-year-old “magistrates bill” is scheduled for a May hearing at the 4th U.S. Circuit Court of Appeals in Richmond, Virginia. That law allowed magistrates to recuse themselves from performing same-sex marriages.
Some are new. Cooper, a Democrat, is contesting laws the Republican-controlled General Assembly passed in December that among other things require Senate confirmation of his Cabinet. He claims they violate the constitutional separation of powers.
Legal battles between lawmakers and the governor aren’t new, or necessarily partisan. Last year, then-Republican Gov. Pat McCrory won a landmark case against the General Assembly that involved appointment powers. Other N.C. governors also have gone to court against the legislature.
“I can remember when Democrats were in control of the state legislature and said, ‘We’re gonna pass what we want’,” said Republican Bob Orr, a former state Supreme Court justice. “That mindset is just as prevalent with the Republican-controlled legislature. They’re going to pass what they want to until a court tells them they can’t.”
The litigation is expensive.
Through November, Republican lawmakers had spent more than $10.5 million over five years defending laws on everything from redistricting to voter ID to HB2. Almost half the money – $4.9 million – went to defend a sweeping voting law, which was overturned by a panel of federal judges but now faces possible review by the U.S. Supreme Court.
Lawmakers spent another $3.7 million defending redistricting plans, several of which are also before the high court. And they’ve spent more than $1.2 million on behalf of HB2, which faces multiple legal challenges.
Here’s a look at where the major cases stand.
The issue: The N.C. law involving LGBT protections and transgender rights.
The venues: The U.S. Supreme Court will hear arguments on March 28 in a related Virginia case involving a transgender student. And in May, the 4th Circuit in Richmond has scheduled a hearing on Carcaño v. McCrory, a suit brought by the American Civil Liberties Union and Lambda Legal.
The latest: A Justice Department suit against the N.C. law is expected to be dismissed after the Trump administration rolled back policies that protected transgender students. Legal experts say that could undermine the ACLU’s federal case against the law. The ACLU and its allies are asking the 4th Circuit to block the bathroom parts of HB2 pending the outcome of the federal trial in North Carolina.
Meanwhile N.C. lawmakers are considering their latest proposed compromise, even as the clock ticks on the NCAA’s decision on whether to keep the state from hosting six years’ worth of championship events.
The issue: Challenges to the state’s congressional and legislative districts. Three cases claim racial gerrymandering. One claims partisan gerrymandering.
The venues: The U.S. Supreme Court and the Middle District of North Carolina’s federal courts.
The latest: In December the Supreme Court heard arguments in Harris v. McCrory, a challenge to congressional districts drawn in 2011. Two other cases – Dickson v. Rucho and Covington v. North Carolina – are also awaiting action by the high court.
In Covington, a three-judge panel last year ordered new legislative districts drawn by March 15 followed by a new election in those districts. The state appealed and the Supreme Court put the order on hold. The Supreme Court is expected to decide this spring whether to hear the appeal.
The League of Women Voters v. Rucho, filed in September, argues that congressional districts constitute a partisan gerrymander. A trial is scheduled for June before a three-judge panel.
The issue: A 2013 elections law that among other things required voters to have photo IDs. Last year a three-judge federal panel struck down the law, saying it targeted black voters “with almost surgical precision.”
The venue: The U.S. Supreme Court.
The latest: Last week Gov. Roy Cooper and Attorney General Josh Stein, both Democrats, took steps to stop the Supreme Court review of NAACP v. North Carolina by withdrawing the appeal filed by McCrory. That review has been scheduled for March 3. Republican legislative leaders, who had hired their own lawyers, are contesting the Democrats’ move.
The issue: In Cooper v. Berger, Gov. Roy Cooper challenged a law passed in December that gives the state Senate power to confirm his Cabinet appointments and changes the way state and county election boards are structured.
The venues: Wake County Superior Court.
The latest: Cooper is in a standoff with the Senate, which Thursday voted to subpoena Larry Hall, Cooper’s choice to head the Department of Military and Veterans Affairs. A court ruling this month found the nomination process can’t begin until the governor officially submits his nominations, and he has until May 15 to do that.
A three-judge panel also denied Cooper’s request for a preliminary injunction to stop confirmation hearings until the matter can be decided in court March 7.
The issue: Whether North Carolina magistrates can recuse themselves from performing same-sex marriages.
The venues: 4th U.S. Circuit Court of Appeals.
The latest: Ansley v. Warren goes to the 4th Circuit in May. At issue is a 2015 law known as SB 2 that allows civil magistrates to opt out of performing same-sex marriages if it violates their religious beliefs. Last fall a federal judge ruled that the plaintiffs, represented by Charlotte lawyers Jake Sussman and Luke Largesse, lacked standing to sue. His ruling will be reviewed by the appeals court.