Roy Cooper is right to object to laws that ill-serve the public

November 9, 2013 

North Carolina Republicans concerned about a possible gubernatorial run by Democratic Attorney General Roy Cooper appear to have an interesting strategy for beating him – wear him out.

Republicans who lead the General Assembly have passed and Republican Gov. Pat McCrory has signed so many fundamentally contested laws that Cooper’s office is being swamped by legal challenges. He’s defending the state against claims of racial gerrymandering in the new redistricting maps and against four lawsuits – including one from the U.S. attorney general – challenging changes in election law contained in the voter ID law.

Beyond that are cases involving the ban on same-sex marriage, the choose-life license plates and expected challenges to the repeal of the Racial Justice Act. In December, the N.C. Association of Educators plans to file suits challenging laws that take away teacher tenure rights and allow for public money to go to private schools through a voucher program. After that, Cooper expects a wave of challenges involving the reclassification of hundreds of state civil service positions to exempt status and tighter regulations on aborton clinics.

And it is anyone’s guess how many appeals in the nearly 900 cases involving the arrests of protesters at the state Legislative Building will find their way onto the to-do list in Cooper’s office.

“Clearly the governor and the legislature have taken actions that have given rise to significantly more litigation for the state,” Cooper says.

This wave of litigation is complicated by Cooper’s disagreement with many of the laws and his willingness to say so. Indeed, he has been so candid about his feelings that the New York Times carried a recent story under the headline: “North Carolina prosecutor takes shots at the laws he’s obliged to enforce.”

It’s a contradiction Gov. McCrory doesn’t like. The Times quoted the governor as telling the conservative Heritage Foundation that Cooper shouldn’t disclose his objections to changes in state election law that U.S. Attorney General Eric Holder says will impede African-Americans’ right to vote.

“He can have his personal opinion, but as a lawyer he should not publicize your personal opinion if you’re going to be defending the people who are promoting this common-sense law,” McCrory said.

The governor appears to be confused about who Cooper’s client is. He doesn’t represent the best interests of Republicans. He represents the best interests of North Carolina. The state expects its lawyer to give it his best legal advice, and he has. The problem is that the governor and Republican lawmakers didn’t seek his advice on this or many other pieces of controversial legislation.

“I did warn the governor not to sign (the voter ID law) because there were numerous changes that were bad public policy,” Cooper says. “A lot of bad public policy was lumped into this bill at the last minute.”

Objecting to the way a bill was made or how it affects policy does not impede the attorney general’s office from defending the law as constitutionally sound. Indeed, the attorney general’s office along with counsel hired by the General Assembly has successfully defended the redistricting law before a three-judge panel.

“There’s a big difference between arguing what’s good and bad for the people and making constitutional arguments,” Cooper says.

Objecting to laws on one level and defending them on another is awkward for Cooper, but it’s the right thing to do for a statewide elected official who is trying to fulfill both his responsibilities to serve the state’s best interests and his role within the legal process.

The problem here lies with the laws’ makers, not their defender. This year’s bills on election laws and abortion clinics, for instance, were cobbled together in a last-minute rush with little outside vetting, including a review from Cooper. If you’re making state laws that you know will bring objections, it’s a good idea to consult the state’s attorney general. Otherwise, you may get his opinion afterward instead of before.

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