Map of WNC's state House districts under the district plan that federal courts have now rejected.

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RALEIGH — Gov. Roy Cooper called for a special session starting Thursday to redraw North Carolina General Assembly districts after the U.S. Supreme Court’s Monday opinion agreeing that 28 House and Senate districts are unconstitutional because of racial gerrymandering.

But lawmakers, accusing Cooper of overstepping his constitutional authority, cancelled the session without ever meeting.

The session, which the governor called under his powers in the state constitution to do so in extraordinary circumstances, was scheduled to start at 2 p.m. Thursday.

“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,” said Sen. Ralph Hise, R-Mitchell, chairman of the Senate Select Committee on Elections said in a statement Thursday.

Legislative leaders said the constitutional grounds for the governor to act had not been met because, with the General Assembly already in session, no “extraordinary” situation existed. They also questioned whether he had consulted with the Council of State as the constitution requires for calling such a session.

Cooper’s administration in turn blasted lawmakers for their response.

“Now the Republican legislature is thumbing its nose at the North Carolina Constitution as well as the U.S. Supreme Court,” said Ford Porter, Cooper’s spokesman.

“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.”

Call for session

In a surprise Wednesday afternoon announcement, Cooper said the unanimous opinion by the court on Monday called into question the legitimacy of the legislature and its policies.

“The very existence of this legislature is and has been unconstitutional for five years and they are under a unanimous court order from the highest court of the land to fix this,” Cooper said.

The Supreme Court agreed with a three-judge panel’s earlier decision in Covington v. North Carolina that maps drawn in 2011 packed more African-American voters into the districts than were required under the Voting Rights Act in order to make other districts more favorable for GOP candidates.

Along with the opinion, the court vacated the lower court’s order that new districts be drawn and new elections held in 2017, saying the judge who ordered the special election gave only a cursory review of the costs and consequences of ordering a special election.

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The move did not rule out a special election this year, but laid out a judicial test for considering the need and impact.

Cooper said he wanted to see the General Assembly redraw the districts as soon as possible, citing state law requiring redrawn maps within 14 days. Cooper also filed a request with Chief Justice John Roberts asking the court to order new maps be drawn. He said the decision to call the special session would “start the clock” on the 14-day window for the legislature to draw new maps. If the legislature fails to do so, Cooper said, it would be up to the courts.

“They can draw these maps and they can draw them in a way that is fair and legal,” Cooper said. “They just need to do it; and if they don’t I believe the court will.”

Legislative leaders Wednesday quickly dismissed the governor’s move as a “political stunt,” but both chambers initially scheduled an extra session before cancelling it around midday on Thursday. Although Cooper set a 14-day timeline for drawing new maps, the length of any special session would be up to the legislature. The state constitution gives the governor the authority to call an extra session, but it does not require the legislature to take specific action on the governor’s request.

“Gov. Cooper has no constitutional role in redistricting, and we have no order from the courts to redraw maps by his preferred timeline. This is a clear political stunt meant to deter lawmakers from our work on raising teacher pay, providing relief to the communities affected by Hurricane Matthew and putting money back into the pockets of middle-class families,” a joint statement by Hise and Rep. David Lewis, the chairs of election law committees in their respective chambers, said. “We are already in session, and will continue to focus on this important work.”

Cooper said that, although unusual, the legislature has held concurrent sessions to deal with redistricting issues before.

In an interview Tuesday with Carolina Public Press, Lewis said legislators were still waiting on a court order.

He said he with so little time to draw maps, review them  and set up a special election he thinks the option for that happening in 2017 is closed.

“I’m confident that it is,” he said. “We’re obviously waiting for the court to issue whatever ruling they will direct us to do.”

He said he agreed with the high court’s order for a new remedy.

“The court made it clear that the lower court made an error in considering the cost and consequences of ordering elections,” he said, adding that a special election this year or in early 2018 would be a waste of taxpayer money.

Lewis said he is waiting for direction from the court before moving forward on new drawing new maps.

What’s at stake

The squabbling over the timing of redrawing the maps between the governor and legislators goes to the question of when the new districts will be created, not if. Legislators still expect to work on a new legislative district map sometime in the near future, despite their cancellation of Thursday’s session.

Lewis said that, for now, he is not clear on how many House and Senate districts will be affected. None of the districts are located in the state’s far western region. Among those implicated, districts in Charlotte are the closest to WNC.

Lewis said the court could order something different, but that for now districts farther away from those the court ruled unconstitutional have the potential to not be affected.

“I’m cautiously optimistic that if they’re going to issue a ruling, they’ll provide us some kind of guidance of what they are looking for,” he said.

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However, the redrawing process has the potential to result in changes in nearly every district. Although western districts weren’t implicated in a similar court ruling on congressional districts in 2012, the redistricting process did result in small changes to those districts, especially in Buncombe County.

Anita Earls, executive director of the Southern Coalition for Social Justice said although the legislature is usually charged with drawing the maps, the courts can sometimes step in, as in the case of a recent redistricting challenge in Virginia.

“I am sure the court will never ‘want’ to draw maps, but the law does provide that if the legislature fails to draw new districts, the court has the inherent authority to do so,” Earls said in an email reply to Carolina Public Press after the governor’s announcement.

At his press conference Wednesday, Cooper acknowledged that given recent history, whatever happens in the next few weeks wouldn’t mean the end of the legal challenges.

“That’s always possible,” the governor said. “This is North Carolina, by the way.”

With lawmakers’ response on Thursday, it appears that at least is a point on which both sides agree.

Editor’s Note: This article has been updated to reflect developments, including the cancellation of the special session. Managing Editor Frank Taylor also contributed to this article.

Kirk Ross

Based in the Triangle, Kirk Ross is the capital bureau chief for Carolina Public Press. Contact him at kross@carolinapublicpress.org.

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