By John Hood
Raleigh, NC – I have repeatedly criticized Roy Cooper’s troubling efforts to amass power in the governor’s office at the expense of other elected state leaders, local governments, and private citizens.
I have related the history of Cooper’s conflict with the General Assembly. I have conceded that state lawmakers struck first by encroaching on his powers shortly after his election in 2016 but that Cooper has gone far beyond trying to restore the separation of powers and now seeks gubernatorial supremacy.
I have argued that the governor’s tactics — including budgetary brinksmanship, constant litigation, and brazen violations of the rule of law — have served North Carolina poorly both in the short run and by setting a bad precedent for future governors.
What I have done too little of, I think, is describe the extreme rationale for many of Cooper’s decisions. The governor and his aides simply deny that the current state legislature possesses the lawful authority to check his power in the first place. Because its members were elected within House and Senate districts subsequently found to be illegal gerrymanders, the General Assembly is an “illegitimate legislature,” Cooper’s attorneys argued in a brief they filed last year in favor of litigation to strike down two newly added provisions to the North Carolina constitution that cap the income-tax rate and institute a photo-ID requirement for voting.
I certainly agree that gerrymandering is abhorrent and violates basic principles of representative government. I have advanced that position consistently since the early 1990s — since the days when then-state senator Roy Cooper helped to gerrymander legislative seats to keep Democrats in control of the General Assembly.
But to leap from challenging gerrymandered districts to questioning the very legitimacy of the elected General Assembly is to leap from high ground to quicksand.
North Carolina’s legislative districts have been invalidated in court several times in the past. Even if the newly elected General Assembly enacts redistricting reform in early 2021 before drawing new maps, it is likely the result will be challenged in court. Perhaps the challenge will succeed.
Do we really want to treat every action of a General Assembly as only provisionally legitimate, its legal status dependent on whether a future court might strike down districts or other rules under which the previous elections were held? Surely not. The result would be utter chaos.
Cooper and his supporters admit that. In the lawsuit against voter ID and the tax cap, they argued that it would be OK for such an “illegitimate” legislature to enacts budgets and the like but not to amend the state constitution.
Reasonable people might agree with that distinction if the General Assembly possessed the power to amend North Carolina’s constitution. But it doesn’t. By majorities of three-fifths in both chambers, the legislature can place amendments on the ballot. Only North Carolinians themselves can amend their constitution — as, indeed, they did in 2018 by adding a voter ID provision to the constitution, among others.
If the existence of gerrymandered districts truly established a justification for judges to prevent an “illegitimate” legislature from enacting laws, it would make more sense for them to strike down ordinary laws, not constitutional amendments. After all, if voters don’t like an amendment, they can vote it down. But voters can’t do the same to laws or budgets. Two of three judges on a Court of Appeals panel made precisely this point in a mid-September decision that, at least for now, restores the voter ID provision (although other litigation has blocked its enforcement for the 2020 election cycle).
Let me put it another way: by popular vote, by direct democracy, North Carolinians decided to require voter ID. The governor and his allies claim this outcome was undemocratic.
It is an extreme position to defend, and not just for Roy Cooper. The N.C. Supreme Court will ultimately decide the case. Three of its seats are up for election this fall. You’ll be hearing a lot about voter ID again this cycle, like it or not.