Trying to Catch the Moving Targets

Nelda Holder Photo: Tim Barnwell

Nelda Holder Photo: Tim Barnwell

Legislative News by Nelda Holder –

February 1, 2018 saw the North Carolina General Assembly back in Raleigh for week four of their current “special session.”

Despite the Legislature’s frequent sessions, it has begun to seem that there is more legislation being decided by the courts than by the Legislature. Or, at a minimum, the legislation being passed is fraught with what should be avoidable constitutional problems.

Two recently decided court cases have reversed legislation that canceled judicial primaries across the state this spring, and that took away the power of the governor to control a majority interest over certain executive agencies. That’s on top of significant redistricting reversals at the federal district court level in which racial and partisan gerrymandering were being examined (see below).

Take a moment to reflect on the fact that, under the district court rulings, North Carolina has operated now for almost a decade under what have been found in several higher court rulings to be illegal legislative districts. Individuals have been elected to make decisions on behalf of this state and its people, who—sans gerrymandering—might never have been in office. And their decisions potentially reflect a bias that was ingrained in those gerrymandered borders.

It is not with confidence, therefore, that we watch this Legislature’s push to disrupt the state judiciary with a redistricting plan that has been designed by legislators and not members of the judiciary. This has been brought forward not at the request of those involved in our justice system on a daily basis, but at the original behest of one legislator, House member Justin Burr (R-Montgomery/Stanly), a realtor and a bail bondsman. (See Urban News: “Buncombe County Stands to Lose Under Judicial Redistricting.”)

This bill, HB 717, is prime for action during this session. And as it is currently written, it will split Buncombe County into two judicial districts, although a new proposal for mapping would cut the county into three districts. Currently serving judges would potentially be forced to run against each other instead of against potential opponents in the district they previously won. Stay tuned on this bill and its important effects locally.

And speaking of judicial decisions

The Legislature voted in late 2017 to cancel the judicial primaries across the state in 2018, ostensibly because of the pending judicial redistricting plan, but also because the Legislature is considering a proposal to change judicial selection in the state from voter approval to legislative appointment. The cancellation of the primary by the Republican-controlled General Assembly would have applied to all levels of the state’s judiciary: trial courts, NC Supreme Court, and NC Court of Appeals. Gov. Roy Cooper vetoed the legislation, but his act was overridden.

The cancellation has just been reversed, however, for the statewide judicial seats on the Supreme Court and Court of Appeals. In a January 31 ruling, U.S. District Judge Catherine Eagles noted that the rationale for cancelling the primary—pending district changes—did not apply to statewide races. Candidates for superior and district courts, however, will still be barred from primary elections but will instead file to run in the general election in the fall. All this depends, of course, on whether the federal district court ruling will be upheld in the event of an appeal.

To make matters more confusing, another January ruling, this one by the NC Supreme Court, has found that provisions of another law passed in 2017 changing the structure of the State Board of Elections violated the state constitution’s separation of powers clause. Session Law 2017-6 (SB 68) consolidated the functions of elections, campaign finance, lobbying, and ethics under one quasi-judicial/regulatory agency called the Bipartisan State Board of Elections and Ethics Enforcement.

Again, Gov. Cooper’s veto was overridden, but Cooper filed suit, claiming the law was unconstitutional, and in a 4-3 vote along party lines the NC Supreme Court agreed. The case involved a complicated argument regarding the constitutional authority of the governor versus the Legislature; notably, Chief Justice Mark Martin (arguing for the minority) found that the majority ruling constrains the General Assembly’s authority to determine the size and structure of state administrative bodies. It was remanded to the Court of Appeals for decisions on separation of the combined functions.

Do we know where we are yet?

Then there are the lawsuits involving racial and partisan gerrymandering in drawing the state’s legislative and congressional districts. On January 19, after the racial gerrymandering case affecting 28 state legislative districts was upheld by the U.S. Supreme Court, a three-judge federal panel approved a district plan redrawn by a special master (at the court’s behest). At press time, the legislative defendants have appealed for a stay of that decision.

A second racial gerrymandering case, this one challenging the 2011 state legislative and congressional maps, has gone to the U.S. Supreme Court and bounced back to the NC Supreme Court three times. At present, a three-judge superior court panel is deciding whether the issues are still active, given other decisions that have touched on the same issues.

In the case of partisan gerrymandering, a federal panel of three judges agreed that North Carolina’s congressional map was unconstitutional and ordered the state to redraw the map. The legislative defendants in this case filed an emergency motion to stop the redraw, which was granted by the U.S. Supreme Court. This one remains in limbo at present.

Duke Power gets a “yes” from Cooper administration

Down in the administrative trenches of state government, the Department of Environmental Quality made an important decision that opens the way for a controversial $5-billion natural-gas pipeline to traverse the state from top to bottom, cutting through eight eastern counties in its 600-mile march. Approval of a key state permit (the 401 Water Quality Certificate) for the Atlantic Coast Pipeline (ACP), under review for the past eight months, was granted on January 26. That announcement was immediately followed by an announcement from Governor Cooper that Dominion Power and Duke Energy, the pipeline partners, will contribute $57.8 million into an environmental mitigation fund.

Interestingly, former NC House Majority Leader Paul “Skip” Stam, now a private attorney, has been cited in the Bladen Journal as saying the mitigation deal violates the state constitution and would take away the rights of North Carolinians to challenge terms of the agreement in court. Legislative leaders, according to that paper, are seeking guidance on the legality of the arrangement.

The proposed pipeline would carry natural gas from fracking operations in Pennsylvania and West Virginia, ostensibly for the purpose of supplying Duke Power in North Carolina with product for its natural gas power plants, although opponents charge that the pipeline will be expanded to port facilities in South Carolina. The path moves through eight NC counties that, an opposition coalition points out, are disproportionately populated by people of color and low-income individuals and families. The coalition also charges that in addition to environmental endangerment, the project comes with a lack of long-term jobs and other economic benefits for the affected communities.

“We know what those communities look like, and how poorly informed and helpless they have felt during this process,” declared Hope Taylor, executive director of Clean Water for North Carolina (which has offices in Durham and Asheville), in a coalition press release. Marvin Winstead of Nash County Stop the Pipeline, another coalition member, criticized Cooper (who hales from the affected Nash County) for “protecting tourism and economies in the wealthier counties along the coast from drilling … (while ignoring) the struggling inland counties facing the threat of ACP.”

The Southern Environmental Law Center has filed a challenge to the ACP in federal court, noting that the project would cut through mountain ridge tops and traverse steep, unstable mountainsides and sensitive streams and rivers. Meanwhile, tree clearing along the ACP path has already begun in West Virginia and Virginia.


Nelda Holder is the author of The Thirteenth Juror – Ferguson: A Personal Look at the Grand Jury Transcripts. Read Holder’s blog,

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