[This post was last updated August 31, 2018, after a judge ruled against Gov. Cooper’s latest complaint. Jump straight there.]
Ah, the beauty of divided government.
Our political system has set up an independent judiciary as the referee between the executive and legislative branches — and the challenge flag has been getting a workout the past few years.
Ever since Republicans took over the General Assembly in the 2010 elections, Democratic leaders have continually taken legal action to prevent different laws from going into effect. The state Republican Party has even given it a catchy name: “Sue until N.C. is blue.”
We’ve covered the ongoing litigation over Republican-drawn district maps in an earlier story. Need an update? We’re still waiting for the U.S. Supreme Court to weigh in on whether partisan gerrymandering is OK or not.
Here, we take on lawsuits filed by Gov. Roy Cooper against the Republican-dominated General Assembly. These began shortly after Cooper won the November 2016 elections and haven’t stopped since.
It feels like there have been dozens of them1, but it turns out there have only been four actual cases.
Let’s go through them. You’ll quickly see why it’s all so confusing.
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The December 30, 2016 lawsuit
Cooper’s first lawsuit against the legislature came even before he took office2. It came as a response to some last-minute laws signed by lame-duck Gov. Pat McCrory.
When it became apparent that McCrory would lose his bid for re-election, the General Assembly immediately sprung into action to limit the powers of the future governor.
- Made elections for N.C. Court of Appeals and Supreme Court partisan.
- Allowed the appeals court to vote to hear cases en banc.
- Changed the rules for the state’s Industrial Commission to let McCrory name its leaders for a longer term. In fact, McCrory’s appointees would serve for all but one day of Cooper’s upcoming term.
- Merged the State Board of Elections and the State Ethics Commission into one entity and made it evenly split between parties — with four members appointed by the governor and four by the General Assembly.
- Moved appointment power from the governor to other3 elected officials or the legislature. For example, the State Superintendent got more power to appoint Board of Education members, and the legislature got more power to appoint members of the UNC Board of Governors. The governor had these powers before.
- Required N.C. Senate confirmation of the governor’s cabinet appointees.
- Turned a number of political appointees into career state employees with employment protections.
The complaint4 challenges the merged State Board of Elections & Ethics Enforcement with legislative appointees.
Cooper claimed the changes violate the separation of powers part of the N.C. Constitution and prevent him from executing his duties.
The January 10 amendment to the lawsuit
After taking office, Cooper expanded the lawsuit to challenge more parts of the two laws limiting his power.
The amended complaint takes aim at other provisions of Senate Bill 4 and House Bill 17 — the Industrial Commission changes and the N.C. Senate confirmation of cabinet appointees.
What happened with these?
A Superior Court panel found in March 2017 that the new State Board of Elections did violate the state constitution. But don’t worry, this will come up again.
Cooper voluntarily dismissed the claims regarding the Industrial Commission — but they’ll come up again in a later lawsuit.
The April 26, 2017 lawsuit
After that defeat on the elections board, the General Assembly passed a law on April 25, 2017, changing its composition yet again.
This law repealed the first one, and replaced it with a slightly tweaked but still merged State Board of Elections & Ethics Enforcement. It maintained eight members, but now had the governor appoint all eight — and also required four to be of the governor’s party and four of the opposition party.
Cooper filed suit again to challenge this law. The complaint5 again uses a separation of powers argument.
What happened with this?
In a significant ruling, the N.C. Supreme Court ruled in January 2018 that the new State Board of Elections structure violated the constitution’s separation of powers provisions.
It was a big victory for Cooper, but it touched off another round of tweaks from the General Assembly.
The May 26, 2017 lawsuit
Also in April, House Bill 239 reduced the size of the Court of Appeals from 15 to 12. That prevented Cooper from making new appointments if members retired6. Cooper vetoed it, but the General Assembly overrode it on April 26, 2017.
This lawsuit7 challenges two laws: The one that reduced the size of the Court of Appeals, and the one that changed how the Industrial Commission is put together in a way that gave McCrory’s people a much longer term than before.
It also seeks to expand the governor’s powers, giving him authority to appoint members to state board and commissions that have long been appointed by the General Assembly.
Cooper’s lawsuit names the following boards, seeking control over them: Clean Water Management Trust Fund, the Child Care Commission, the State Building Commission, the North Carolina Parks and Recreation Authority, the Rural Infrastructure Authority, and the Private Protective Services Board8.
The amendment to the May 26 lawsuit
Three months later, Cooper’s legal team filed a significant amendment to this lawsuit that deals with the state budget bill passed in June 2017. It challenges three specific parts of the budget.
1) One provision of the budget triples the amount of money dedicated to Opportunity Scholarships, the vouchers for low-income children to go to private school. Funding had been set at $45 million per year, but the 2017 budget directed the governor’s office to include funding of nearly $145 million in its base budget.
Cooper opposes the Opportunity Scholarship program. The new part of the lawsuit challenges the legislature’s ability to require funding it in his base budget.
2) The 2017 budget also redirected hundreds of millions of dollars in federal grants — for things like substance abuse prevention to programs the General Assembly selected rather than the governor. The amended lawsuit challenges the General Assembly’s ability to redirect federal money.
3) North Carolina received $87 million from Volkswagen as part of a settlement involving the company’s marketing of clean diesel. The settlement said the governor’s office could pick where the money goes, but the 2017 budget says Cooper can’t spend the money without approval from the legislature. The amended lawsuit challenges this provision of the budget.
What happened with these?
All the different components are being ruled on separately.
In April 2018, a panel of Superior Court judges ruled that it was OK for the General Assembly to reduce the size of the Court of Appeals and to require the Opportunity Scholarship money.
At the same time, an individual Superior Court judge9 ruled that it was OK for the General Assembly to take control of the federal grants and the Volkswagen settlement money.
Both were victories for the General Assembly. This will all get appealed further.
I don’t believe there has been a ruling yet on the Industrial Commission component of this lawsuit.
The March 13, 2018 lawsuit
This one goes back to the State Board of Elections & Ethics Enforcement.
After the January 2018 ruling from the State Supreme Court, the General Assembly went back to work on a new formula to set up the elections board.
The result was House Bill 90. It creates a 9-member board, with four members of the governor’s party, four members of the opposition, and a ninth member selected by the first eight who is not affiliated with either party10.
Cooper first asked the court to invalidate the law using the Supreme Court ruling in January.
When that didn’t work, Cooper filed another lawsuit11. It accuses the General Assembly of “tinkering around the edges” and asks the court to invalidate it.
What happened with this?
The courts did not grant Cooper an immediate stop to implementation of House Bill 90. The lawsuit has yet to come before a court.
In the meantime, Cooper appointed eight members of the State Board of Elections & Ethics Enforcement, and then picked the ninth from two choices put forward by the elections board. They’re now operating normally.
The August 6, 2018 lawsuit
In the 2018 short session, the General Assembly drafted six amendments to the North Carolina constitution and put them on the ballot for voters to approve.
[Longleaf story: 6 N.C. constitutional amendments you will vote on in 2018, ranked]
The two in question stem from House Bill 913 and Senate Bill 814.
The first codifies a bipartisan board of elections, rather than one in control of the governor’s party. You’ve already read about this fight earlier in this piece.
The second creates a new system for filling judicial vacancies. Instead of the governor appointing judges to fill these roles, the amendment would create a system where people nominate candidates, they’re weighed on their merits, the General Assembly picks two people and the governor appoints one of the two.
Cooper’s lawsuit centers on two things. First, it claims that the General Assembly is violating “separation of powers” by taking improper control of the other two branches of government. And second, it claims that the constitutional amendment ballot questions do not accurately tell voters what they do.
What happened with this?
In mid-August, the courts agreed with Cooper that the ballot text was misleading and pulled the two amendments off the 2018 ballot.
In response, the General Assembly reconvened in a special session and rewrote the two amendments, trying to address the issues raised by the judges.
Cooper amended his complaint in late August to say that the new amendments were still misleading. You can read the new allegations here.
However, a three-judge panel agreed with the General Assembly that the problems had been fixed. Cooper is appealing, and the N.C. Supreme Court will next hear the case.
What comes next?
As you can see, very little is settled. The N.C. Supreme Court will likely end up deciding all of these issues — and then the General Assembly has shown it can always go back and pass more laws the governor would object to.
Expect more lawsuits over the rest of Cooper’s tenure as governor.
We’ll update this story as more rulings get made.
Cover image of Gov. Roy Cooper by NCDOT via Flickr (Creative Commons).