North Carolina Republicans moved quickly after gaining control of both General Assembly chambers in 2011 and then the governor’s office in 2013 to weave conservative policies and legislation into the fabric of a state that had not experienced such a political reordering in more than a century.
The wheels of justice moved slower to weigh the constitutionality of the changes.
But now key pieces of that legislation borne from the state’s sharp political right turn have been ruled unconstitutional.
So far, the courts have turned back the legislature on its attempts to ban same-sex marriage, strip teachers of tenure and require doctors providing abortions to perform an ultrasound and describe the sonogram image in detail.
“I would say the Republicans have tried to put their stamp on the state,” said Michael Bitzer, a political science professor at Catawba College who follows state politics closely. “What they’re facing now are the checks and balances that are a natural part of our political system.”
Legislators have been challenged on a law allowing magistrates to opt out of performing same-sex marriages, and they’ve been taken to task by the U.S. Justice Department for requiring people in schools and other government facilities to use bathrooms matching their birth certificates. Both are still winding through the courts.
There have been a few wins.
They successfully established a school voucher program that allows the state to steer public money to private schools. A state Superior Court judge ruled that legislation a violation of the N.C. Constitution, but the state’s highest court, which has a 4-3 Republican majority, disagreed along party lines.
A legal victory in federal court upheld the decision to offer a “Choose Life” license plate but not a plate with a pro-choice message.
But recent months have resulted in a slew of unfavorable court rulings that have led some legal experts and political opponents to question why conservatives who talk so often about upholding the Constitution pushed so many laws deemed to run afoul of it.
Leaders of the state Senate and House of Representatives are both lawyers with the support of a legislative legal staff.
Senate leader Phil Berger, House Speaker Tim Moore and Gov. Pat McCrory insist judges, not them, are misreading the Constitution. They have had better luck at the N.C. Supreme Court – on redistricting cases later overturned by the federal courts, and on the school vouchers, which tested a state constitutional question.
After a panel of the 4th U.S. Circuit Court of Appeals overturned the 2013 election law overhaul, which included a requirement for voters to show photo ID and curbs on voting procedures used disproportionately by African Americans, Berger and Moore criticized it as a “politically motivated decision” by “three partisan Democrats.”
McCrory likewise blasted the decision by “three Democratic judges.” All three were appointed to the appeals court by Democratic presidents; one had previously been appointed a district judge by a Republican.
The governor has asked the U.S. Supreme Court to weigh in. The high court could be the ultimate arbiter on the linchpins of a legislative agenda that made North Carolina a testing ground for one of the most conservative platforms in the country.
“My overall impression is North Carolina and the Republican leadership does see itself as on this kind of conservative edge,” said David McLennan, a visiting professor of political science at Meredith College.
“It seems like the courts are taking a very civil rights perspective on what most political scientists would say were very aggressive laws,” McLennan added.
$9 million and growing
The lawsuits have resulted in more than the legal jousting that comes with such challenges.
There also has been a growing partisan divide over whose job it is to defend the laws.
Attorney General Roy Cooper, a Democrat running for governor on a platform that clashes with much of the GOP agenda, has decided against defending some of the laws after rulings at the federal appellate stage: the elections law overhaul, the “Choose Life” license plate, which was rejected and then sent back for further consideration after a U.S. Supreme Court decision in a Texas case, and the same-sex marriage ban.
Grayson Kelley, North Carolina’s chief deputy attorney general since 2003, said senior attorneys consider the cases, weigh possible defenses in light of rulings and then make a recommendation to Cooper on next steps.
“He has always made it very clear to me that his personal, political views are not to factor in to legal decisions in this office,” Kelley said Friday.
Cooper’s office has defended abortion restrictions adopted by the General Assembly, vouchers, the attempt to phase out teacher tenure, several redistricting cases, the magistrate opt-out law, the attempt to change how sitting Supreme Court justices are elected and more. Cooper said his office would not defend House Bill 2, the LGBT law passed in March.
“In my experience, there have been significantly more constitutional challenges in the last five years than for previous legislatures and administrations,” said Kelley, who has worked at the state attorney general’s office since getting his law license in 1978. Most of the major constitutional challenges against previous legislatures and administrations, Kelley added, were redistricting cases.
In the past five years, lawmakers passed legislation that allows them to hire their own attorneys, even when Cooper’s office was on the case. In five years, they have run up a $9.3 million legal bill, according to legislative records. WRAL-TV reported the total is more than 20 times what the legislature spent on outside counsel in the decade prior.
That total does not include what the governor paid private attorneys representing his office. The governor’s office has not provided records of those costs, which The News & Observer requested in March.
Lawmakers also adopted legislation over the summer that allows the governor to tap into the state’s disaster fund to defend HB2, a measure the governor allowed to become law without his signature but says he won’t use.
After decades of being mostly in the political minority, Republican lawmakers came to power with a pent-up list of targets and aims and zeal to pursue them.
Harold Lloyd, a Wake Forest University law professor, said more discourse and less fervor and urgency might have led to legislation more apt to stand a constitutional challenge. The courts, Lloyd said, are “beginning to shine the light of day on this developing agenda where the legislators appear not to have meaningful public debate on issues.”
“At least in the case of the voter restriction act and House Bill 2, the legislation is made on an unnecessarily fast timetable where there can’t be the debate.”
House Bill 2 was designed to nullify a Charlotte anti-discrimination ordinance. It was presented to the legislators, adopted and signed into law by McCrory in less than 24 hours in an emergency session called a week before the Charlotte law would have gone into effect.
Rep. Paul “Skip” Stam, an Apex Republican and lawyer who keeps a running tally of laws, court challenges and rulings, said Thursday after a news conference outside Cooper’s office that he disagreed with critics and judges who contend that key legislation had passed with little public discourse.
Most of the laws of the General Assembly are adopted with the input of staff and committees, Stam said. “It’s about the words,” Stam said. “You collaborate to come up with the words.”
“Whether or not they get struck down has very little to do with how much they’re discussed,” Stam added, pointing out that most of the General Assembly’s laws are not subject to legal challenges. “There are some bills that are going to violate the Constitution. But there are others where the U.S. Supreme Court changed its mind.”
Stam said the legislature had talked about a voter ID law since President George W. Bush beat former Vice President Al Gore in 2000 in an election decision that went to the courts.
But similar to how HB2 encompassed more than the so-called “bathroom law,” including minimum wage restrictions and employment law changes, the 2013 elections law overhaul went well beyond a voter ID requirement.
In their unsparing opinion on the election law, the three-judge federal appellate panel called out the N.C. lawmakers for adopting a law that did not get at the so-called problem it alleged to be solving.
Lawmakers contended the election changes were designed to prevent voter fraud, but the ruling written by Judge Diana Gribbon Motz, a Bill Clinton appointee, said the changes targeted African Americans “with almost surgical precision.”
The decision went on further to note that “the party that newly dominated the legislature” also was “the party that rarely enjoyed African-American support.”
With that, the panel reversed U.S. District Judge Thomas Schroeder, a George W. Bush appointee who they contended “missed the forest by carefully surveying the many trees.”
The appellate panel’s action came in a summer during which the federal courts are “expressing a new willingness to call out legislatures for what they are really doing, not just what they say they are doing,” Linda Greenhouse, an op-ed columnist for The New York Times who writes about the Supreme Court and the law, wrote in a column Thursday.
Greenhouse wrote about the U.S. Supreme Court’s June 27 decision to overturn requirements for Texas abortion clinics and doctors who work at them, as well as appeals court decisions last month invalidating voter ID laws in Texas and North Carolina.
Greenhouse acknowledged that litigation in both cases will continue, and that it remains to be seen what effect the rulings will have on cases already in the legal pipeline.
“In the face of spurious explanations for public policies that would foreseeably inflict real damage on identifiable groups of people, judges and justices are abandoning the traditional diffidence of the judicial role,” Greenhouse wrote.
“Legislators, perhaps assuming they had friends in high judicial places, had taken bold, even flagrant steps to suppress the black vote and restrict women’s access to abortion. Judges responded, and even though their actions in some cases spoke more loudly than their words, these decisions mark a departure and make a difference.”
Struck down, all or in part
2011 law requiring physicians to perform ultrasounds on women seeking abortions and describe the images
2011 law capping enrollment in a pre-kindergarten program
2011 congressional district maps
2011 state House and Senate district maps
2011 move to cut off funding for a Planned Parenthood affiliate
2012 constitutional amendment banning same-sex marriage, which voters approved
2013 attempt to phase out teacher tenure for public school teachers already vested in the program
2013 Wake County school board redistricting plan
2013 elections law overhaul including requiring voter ID and reducing early voting
2014 creation of a Coal Ash Management Commission and other panels
2015 Wake County commissioners redistricting plan
2015 law to establish retention elections for sitting N.C. Supreme Court justices
2011 Choose Life license plate
2013 school voucher program
To be decided
2015 Greensboro city council redistricting
2015 law allowing magistrates to opt out of performing gay marriages and pass the duties to colleagues
2016 House Bill 2 that limits local anti-discrimination laws and directs bathroom access in government facilities
See a full list of court cases involving General Assembly actions at nando.com/court