Did North Carolina Republicans violate the constitution when they stripped away some of the governor’s powers after Democrat Roy Cooper was elected in 2016?
Or did they follow a “messy” but legal process?
Those questions and more were up for debate Thursday morning at the N.C. Court of Appeals. The government watchdog group Common Cause is suing over how lawmakers called themselves back into session soon after Cooper won the 2016 election and, within two days, had changed multiple laws in what critics call a power grab.
“Here we have really the most consequential shift in power one can imagine, from the executive to the legislature, in many different forms,” Burton Craig, an attorney for Common Cause, said during Thursday’s court hearing.
The action should be ruled unconstitutional, Craig said, because it happened so quickly. People had little opportunity to learn what was happening and communicate with their legislators before the votes, he said — even though the North Carolina Constitution guarantees citizens the right “to instruct their representatives.”
Former Republican Gov. Pat McCrory conceded the close governor’s race to Cooper on Dec. 5, 2016. A few days later, before Cooper was sworn in on Jan. 1, 2017, McCrory called the legislature back to Raleigh for an extra session dealing with disaster relief for Hurricane Matthew. The legislature approved that funding, then quickly called themselves back into a different session. That’s the one being challenged.
They changed the state elections board in a way that stopped Democrats from gaining a majority under Cooper, took away the governor’s power to appoint UNC System leaders, granted job protection to many McCrory political appointees within state government, cut the number of political appointees Cooper would be able to name by 70 percent, and made members of the governor’s cabinet subject to legislative approval.
Cooper has sued over those changes individually, losing some cases and winning others. Most remain in place. The change to the elections board has been ruled unconstitutional. So was a change taking away some of Cooper’s influence over a state commission that decides workers compensation cases.
This Common Cause lawsuit is different than Cooper’s lawsuits in that it seeks to overturn not just parts of the laws that were passed, but the entire legislative session that led to their creation. Craig said the legislature only gave a couple hours’ notice that it would be coming back into session at all, and gave no notice of what would be voted on, and that the changes were passed by the legislature less than 48 hours after being made public.
“They knew months in advance what they were going to do, they planned for it, and they concealed it,” he said.
Matthew Tulchin, a lawyer from Attorney General Josh Stein’s office who is representing the state in this case, said actions at the legislature shouldn’t be ruled unconstitutional just because they happen quickly or controversially.
“Sometimes politics gets messy,” Tulchin said. He added, “I think the General Assembly is allowed to govern or set the rules under which it operates.”
Tulchin said people did have time to contact their representatives between when the bills were made public and when they were voted on. And now, he said, voters have now had more than two years to continue communicating with their legislators about the issue.
Making the legislature “inoperable”
He pointed to the numerous protesters who showed up to the legislature when the votes were happening. He also said that in routine legislative actions, bills are often amended to include new language without multiple days of public notice. For a court to step in and say actions like that are unconstitutional, Tulchin said, “would render the legislative process inoperable.”
The three judges hearing the case seemed to agree. Although they did not issue a ruling from the bench Thursday, they expressed several doubts about their authority to issue the ruling Common Cause was asking for, as well as potentially unintended consequences if they did.
“The problem is if you look at the things you’ve identified, those things happen quite often in the legislative process,” Judge Richard Dietz said at one point when Craig was explaining Common Cause’s case.
“Is there really anything extraordinary that happened here?” Dietz asked.
Common Cause lost the first stage of the lawsuit, at trial. It’s unclear when the Court of Appeals will issue its own ruling, but Dietz wasn’t the only judge who had questions about why exactly Common Cause thought the process was unconstitutional. So did the other two judges, Hunter Murphy and Allegra Collins. Dietz and Murphy are Republicans, and Collins is a Democrat.
Dietz said he wouldn’t be surprised if the average voter was actually more informed about what happened during this late 2016 extra session than during a regular legislative session, due to intense media coverage.
Dietz also said that just because one group of lawmakers has passed a law doesn’t mean that future lawmakers can’t come in and undo it — especially if voters are clear that they’re unhappy with the law.
“Isn’t the remedy for that not the courts complaining about it, but the public showing their opinion at the ballot box?” he asked.