Berger: Why Cooper's call for special session voted down
The legislature on Thursday canceled Gov. Roy Cooper’s call for a special legislative session for redistricting, making the case that the governor’s move a day earlier was unconstitutional.
The state House voted 71-44. The Senate followed suit without holding a vote, and Republicans cut off Democrats who sought to debate it on the floor.
Cooper had issued a proclamation calling a 2 p.m. special session Thursday in an effort to pressure lawmakers to redraw state House and Senate election maps within the next two weeks. The proclamation called for the special session – running at the same time as the current legislative session – to run for 14 days or until new maps are passed.
The U.S. Supreme Court on Monday affirmed a lower court ruling that found 28 legislative districts to be illegal racial gerrymanders that diluted the overall influence of black voters. But the justices vacated an order by the lower court to redraw the maps and hold special elections in 2017 in the changed districts. That three-judge panel will now reconsider the means of correcting the problem.
House Rules Chairman David Lewis, a Dunn Republican, filed the “constitutional point of order” at the beginning of Thursday’s regular session. He said the Democratic governor lacked the constitutional authority to call a special session for several reasons:
▪ The court order, he argued, calls for redistricting to occur during regular session.
▪ Lewis said there were no “extraordinary circumstances” required by the constitution for a special session.
▪ And he said Cooper didn’t seek advice from the Council of State – the group of statewide elected agency heads including the attorney general and lieutenant governor – before making the decision, something the state constitution requires.
House Speaker Tim Moore backed Lewis’ complaint, and House Democratic Leader Darren Jackson called for a vote on Moore’s ruling. The vote was 71-44 along party lines, striking the 2 p.m. special session from the House calendar.
Cooper spokesman Ford Porter blasted the move in a news release. “Now the Republican legislature is thumbing its nose at the North Carolina Constitution as well as the U.S. Supreme Court,” Porter said. “It’s troubling that they prefer to fight about the process rather than draw the new map that North Carolina voters deserve to level the playing field of our democracy. The U.S. Supreme Court was unanimous in its decision and there is no reason to delay the drawing of new maps.”
The state constitution says that the governor “may, on extraordinary occasions, by and with the advice of the Council of State, convene the General Assembly in extra session by his proclamation.”
While House and Senate leaders said Cooper didn’t get advice from the Council of State, his chief of staff, Kristi Jones, sent an email to the group Wednesday that said “the Governor requests the advice of members of the Council of State in calling for the legislature to convene in an extra session. ... Please send me a brief response acknowledging receipt of this email.”
The emails, released by the attorney general’s office under a public records request, show that Lt. Gov. Dan Forest replied that he thought a special session was “premature” and that he would “advise against” a special session. Agriculture Commissioner Steve Troxler’s aide replied that he “does not believe that a special session is warranted at this time.” And Attorney General Josh Stein replied only “I acknowledge receipt.”
Jones’ email was sent at 3:37 p.m., minutes after Cooper announced his call for a special session. The formal proclamation was issued about two hours later.
Senate leader Phil Berger said the email was only a “cursory attempt” to seek advice. “It didn’t even come from the governor, and it didn’t ask for advice, it said ‘acknowledge you received this.’ We need to be serious about what the constitution requires, and I think the constitution on this issue is not being followed.”
In the Senate, the motion to cancel the special session was made by Sen. Ralph Hise, a Mitchell County Republican. Hise read a nearly identical motion as Lewis did in the House – including the same three reasons he believed the session would be unconstitutional. Forest, a Republican who serves as president of the Senate, ruled in favor of Hise’s motion.
Berger’s office issued a statement from Hise. “Despite all his talk about separation of powers, it’s clear Roy Cooper wants to be North Carolina’s governor, legislature, and with this latest stunt, its judiciary too,” Hise said. “The courts have yet to give the legislature direction on this matter, and we will be prepared to undertake a thorough redistricting process with ample notice and opportunities for public input when they do. In the meantime, we refuse to be manipulated by the governor into having an unconstitutional special session.”
Sen. Floyd McKissick, a Durham Democrat, appealed Forest’s ruling, which under Senate rules means that Senate Rules Chairman Bill Rabon made the final call – without any vote taken.
McKissick was cut off from speaking further on the topic, causing a heated exchange between Republicans and Democrats on the Senate floor.
“I feel like you’re being unfair,” Sen. Angela Bryant, a Rocky Mount Democrat, told Forest. “You had the Rules chair rule on the appeal before you would let Sen. McKissick finish his remarks. Can you tell me when we have the right to finish our remarks?”
Rabon responded that “all of this conversation is out of order of the rules of the Senate. I would ask for you to carry on the calendar.”
Jackson issued a statement criticizing the move. “Legislators are already in town,” he said. “Taxpayers are already paying for us to be here. House Democrats were ready to show up at 2, ready to work. Today’s inaction is a bad sign that Republican leaders are ignoring what the courts are telling us and frustrating the public’s desire for a fair and legal redistricting process.”
Berger said legislative leaders plan to draw new districts, but they need to await instructions from the court. “We need to go through a process of seeking public input,” he said. “Like it or not, that’s something that will take time. But the first thing we need to have is clear direction from the three-judge panel as to what they’re asking us to do.”