The two issues that will almost certainly dominate headlines this year are the power clashes between Democratic Gov. Roy Cooper and Republican legislative leaders and redistricting. Of the eight pending cases covering those issues, there is one outcome experts expect but the other results are anyone’s guess.
“I think the biggest unpredictability is how the new presidential administration affects everything,” said Elliot Engstrom, legal method and communication fellow at Elon Law.
With the exception of one or two cases, by the time most of North Carolina’s redistricting issues are reviewed by the U.S. Supreme Court, there will likely be a ninth justice of President Donald Trump’s choosing. While he is still days away from announcing who he will nominate, he has been clear that he wants someone in the mold of the late Justice Antonin Scalia, who was very conservative.
Trump’s top contenders to serve on the high court are all Republican, which would restore the court to a 5-4 ideological balance.
Trump’s administration is also likely to have an impact on the outcome of the Medicaid expansion that Cooper has called for and House Speaker Tim Moore and Senate President Pro Tem Phil Berger have filed a lawsuit to stop.
Trump has asked for a full repeal of the Affordable Care Act, and without a replacement, it could be the death of Medicaid expansions. There’s also the possibility that even if the ACA wasn’t repealed, Trump’s pick for Secretary of Health and Human Services could deny a request from North Carolina to expand Medicaid.
Clarity of state law
One of the interesting things Engstrom, who used to work for the conservative Civitas Institute, pointed out about the Medicaid expansion lawsuit is that how people feel about it turns on whether or not they want to expand Medicaid.
“But really, the policy question of should we expand Medicaid and the legal question of who’s going to win this lawsuit is not in any way related in the legal world,” he said.
Berger and Moore filed the lawsuit earlier this month against both the state and federal Department of Health and Human Services in reaction to Gov. Roy Cooper announcing plans to expand Medicaid.
They also filed for a temporary restraining order, which was granted. The state filed a dueling request to vacate that restraining order. There are also plaintiffs’ motions for preliminary and permanent injunctions pending before the court, which would block Medicaid expansion efforts either until the outcome of the lawsuit or forever.
However, in the most recent update to the case, Berger and Moore, along with the federal Department of Health and Human Services (now under Trump’s control) have filed a motion to stop litigation for 60 days so that Trump’s administration could “evaluate the issues.”
The state responded by reiterating its underlying position that the case should be dismissed for lack of jurisdiction. The judge has not yet ruled on the motion.
If litigation continues, the arguments before the court are fairly simple. Berger and Moore claim Cooper’s attempts to expand Medicaid are in violation of a 2013 state law.
That law states, “No department, agency, or institution of this State shall attempt to expand the Medicaid eligibility standards provided in S.L. 2011-145, as amended, or elsewhere in State law, unless directed to do so by the General Assembly.”
The state’s argument is that the issue has no business in federal court; “the plaintiffs’ constitutional claims turn on undecided questions of state law.”
“Those questions turn entirely on whether the SPA is valid under state law—specifically, whether the [proposed Medicaid expansion] conflicts with the North Carolina statutes cited in Plaintiffs’ brief, and if so, whether those statutes are invalid insofar as they encroach on the Governor’s powers under the North Carolina Constitution,” a court document states.
Engstrom said the only way for Cooper to get around the state law Berger and Moore cite is to point to a provision of the North Carolina Constitution that allows him to override the will of the legislature.
“And he has pointed to this provision that requires him to faithfully execute the laws, I believe, and basically said it’s my job as governor to look out for the healthcare of North Carolinians so I have to request this Medicaid expansion,” Engstrom said. “I certainly don’t think that’s a frivolous argument; I don’t think that’s a bad faith argument. I do think it’s the weaker argument.”
He added that if the state law is so clear on the matter – and he thinks it is – he would predict that the legislators would do well in federal court.
At least as far as the federal lawsuit is concerned, however, attorneys for the state argue forcefully that the substance of the dispute between Cooper and the legislature is irrelevant. It is, in their view, wholly an “intramural” dispute over state law that the federal courts have no jurisdiction to decide.
Other power struggles
The fact that the two branches of government are arguing with each other to the federal government, Engstrom said, highlights just how divided North Carolina is right now.
“I think it would be great if Gov. Cooper and the General Assembly could find a way to somehow work together, and hopefully they will, but they have very different priorities and they’re very different,” he said. “Within the realm of what is reasonably acceptable for American politics, they are pretty different so that makes it kind of difficult for them to get along.”
Cooper and the General Assembly aren’t just at odds in federal court. There is a lawsuit pending in Wake County Superior Court in which Cooper is challenging action taken during a special session in December that overhauls the State Board of Elections and strips him of some of his power.
A three-judge panel was assigned to hear the constitutional argument. Experts have said it’s a toss-up on who will win, but the case will likely define just how far the governor’s powers extend and just how far the General Assembly can go in these special sessions.
Another constitutional challenge stemming from the same special session is a little more cut and dry. The State Board of Education sued North Carolina just before the New Year over legislators’ action transferring power from the Board to the State Superintendent of Public Instruction, a recently elected Republican.
House Bill 17 is in conflict with Article IX, Section 5 of the North Carolina Constitution, which expressly confers certain “powers and duties” on the Board. That case will be heard by a three-judge panel in Wake County Superior Court in June.
University of North Carolina Law Professor Michael Gerhardt called the Board of Education’s lawsuit one of the strongest claims brought against the legislature’s recent actions.
Similarly, Engstrom said he expects the state to lose the court battle.
“It’s just textually in conflict with the Constitutional duties of the Board of Education,” he said.
The future of redistricting
There are currently five pending redistricting cases, three that deal with racial gerrymandering and two that deal with partisan gerrymandering.
Racial gerrymandering cases:
- Dickson v. Rucho: A petition for certiorari is currently pending with the U.S. Supreme Court. Justices discussed the case in a 26 conference but have yet to take any action on it. It’s one of the oldest redistricting cases and challenges North Carolina’a 2011 state legislative and congressional district maps.
- McCrory v. Harris: This case was argued before the U.S. Supreme Court on Dec. 5. An opinion has not yet been issued. It deals specifically with districts 1 and 12 in North Carolina’s 2011 congressional map after a three-judge panel ruled in February the map was drawn with racial bias.
- North Carolina v. Covington: This case has been appealed to the U.S. Supreme Court, which is expected to decide before June whether it will hear the appeal. In the meantime, justices temporarily halted a lower court’s order for the state to redraw 28 racially gerrymandered state House and Senate districts by March 15, and to hold a special primary and general election in the fall of 2017.
Partisan gerrymandering cases:
- Common Cause v. Rucho: Common Cause filed a federal lawsuit in August claiming North Carolina’s remedial congressional map, adopted this year by the legislature after an earlier map was struck down by the courts, is an unconstitutional partisan gerrymander.
- League of Women Voters v. Rucho: This lawsuit was filed in September and also challenges the state’s remedial congressional map, claiming it is an unconstitutional partisan gerrymander.
Bob Phillips, Executive Director of Common Cause North Carolina, said the new president could potentially have an impact on redistricting cases, but that two of the court’s current conservative justices already have shown an interest in reviewing those cases.
“It’s really hard to say right now [what could happen],” Phillips said.
On the path forward, Phillips said he thinks having Cooper in office will be helpful in that the state government would be supportive of redistricting without gerrymandering.
“That’s important, having someone in that office,” he said. “I think he legitimately brings a new voice that’s powerful and can reach all across the state.”
He added that he doesn’t know that Cooper can influence the legislature but he can promote the need for change, speak out on the issue and help educate North Carolinians about it.
There will be a bipartisan redistricting reform bill introduced in the legislature next week that will be sponsored (as of right now) by three Republicans and one Democrat, Phillips says. There’s also a legislative lobbying day on redistricting planned for March 1.
“We’re going to continue pushing the legislature to put the bill in committee,” Phillips said.
He wants discussion and a public hearing.
“[We plan to tell them] calendar this bill, don’t bury it,” he said.
Michael Curtis, Wake Forest University School of Law professor in constitutional and public law, said a bipartisan redistricting committee would be a step in the right direction and certainly better than the system North Carolina has currently for redistricting.
“The legislators pick the voters instead of the voters picking the legislators,” he said. “When people gerrymander, it’s a way of rigging the election.”
And both parties have been accused of doing it – it’s not just a Republican or Democrat issue.
Curtis, like Phillips, believes the Supreme Court will want to take up partisan redistricting – an issue justices have not yet reviewed.
Legislators have been open about using partisan gerrymandering because the high court has not yet struck it down, Curtis said, but it’s not because the court doesn’t think it’s wrong.
“They’re saying this is an undemocratic device for which we have yet to come up with a suitable test for dealing with it,” he said of the court. “It’s a really crisp case if the courts decide to take it in terms of the intent to gerrymander politically because in their effort to avoid being found a racial gerrymander, they waved the flag that, well this is a political gerrymander.”
The problem with partisan gerrymandering, Curtis said, is that it’s an attack on democracy. The idea that legislators can do what they want to monopolize political power for as long as possible just because the courts may not strike it down is deplorable, he said.
“Opposition parties are good,” he said. “But the opposition parties are completely impotent [in the state], which is pretty much what happens if you have a really successful, super-duper gerrymander, and North Carolina’s is close to the top of super-duper gerrymanders.”
It’s likely that by this time next year, North Carolina will have clear direction from the courts on how to proceed with redistricting in the future, at least with regard to the level that race and politics can play into making the maps.