State legislative leaders may regret fighting against being part of the federal lawsuit that led to their new election maps for Wake County Board of Commissioners and school board being declared unconstitutional.
In an article posted online Tuesday in the Carolina Journal, Rep. Paul Stam laments how Senate Leader Phil Berger and House Speaker Tim Moore had been dropped as defendants so their attorneys weren’t in court to defend the maps. But an attorney for the plaintiffs points to how lawmakers didn’t want to be part of the litigation in the first place.
Stam tells the Carolina Journal that no one went to bat for the lawmakers who redrew the districts when the case went before the U.S. Fourth Circuit Court of Appeals this year. Stam, an Apex Republican and attorney, notes how the office of state Attorney General Roy Cooper would have been defending the districts if Berger and Moore were still defendants.
“In contrast to Europe, which is inquisitorial, the American and English legal systems are called adversarial,” Stam said. “You count on the fact that each side will be represented, so the truth will come out.”
Stam tells the Carolina Journal that he hopes Moore and Berger will attempt to intervene and ask the U.S. Supreme Court to stay the July 1 appellate decision so that the new Wake lines can be used in November.
Stam’s statement in the Carolina Journal that Moore and Berger were “involuntarily dismissed” as defendants by the Fourth Circuit was challenged by Anita Earls, an attorney for the plaintiffs. Earls says the statement is “demonstrably false.”
When the lawsuit was first filed in 2013 against the Wake school board maps, the State of North Carolina and the Wake County Board of Elections were both named as defendants. Plaintiffs later tried to amend the lawsuit to also name Moore, Gov. Pat McCrory and then House Speaker Thom Tillis as defendants.
In a March 2014 ruling. U.S. District Court Judge Terrence Boyle dismissed the lawsuit. Boyle, who was the original trial judge, also dropped the state as a defendant and rejected the request to name the three elected officials as defendants.
When the case was first appealed to the Fourth Circuit, Earls points to how the brief filed by attorneys for the defendants makes multiple arguments for not including the three elected officials as parties to the suit. Among the attorneys who filed the brief was Senior Deputy Attorney General Alexander Peters.
“Plaintiffs also are wrong in their assertion that if the Governor of North Carolina, the President Pro Tempore of the North Carolina Senate and the Speaker of the House of Representatives are not defendants, they will not be able to receive complete relief,” says the June 2014 brief from the defendants. “A court can enjoin the Wake County Board of Elections from implementing S.L. 2013-110.
“Should such an injunction issue, the General Assembly would of course take notice; in the unlikely event that the General Assembly failed to act to provide a new plan for upcoming elections, then the court could adopt a plan for the next election.”
Although a Fourth Circuit panel reinstated the lawsuit in its May 2015 decision, the judges left in place Boyle’s decision to leave the Wake County Board of Elections as the sole defendant.
As a result, Berger, Moore and Sen. Chad Barefoot were dropped as defendants in a related lawsuit that was filed against the maps for Wake County Board of Commissioners. The two lawsuits were merged into one case.
In the July 1 appellate decision tossing out the new maps, the judges noted how the only legislators who agreed to testify during the December 2015 trial were those who opposed the new districts.
“Even the legislative proponents of the challenged redistricting laws refused to defend their actions, instead claiming legislative immunity,” the majority in the July decision said.