North Carolina legislators were not just sneaky when they took surprise action and cut Democratic Gov. Roy Cooper’s powers before he took office, they violated the state constitution, plaintiffs told a state appeals panel Thursday.
The case centers on a decision by Republican leaders to wrap up a December 2016 special legislative session to approve hurricane relief and two hours later start a surprise additional session that passed laws diluting Cooper’s powers. The session came two weeks before the governor was sworn in after he narrowly defeated the GOP incumbent, Pat McCrory.
The legal challenge by a government reform group and voters revolves around language in the North Carolina constitution that goes beyond the U.S. Bill of Rights by including a right of “the people” to “instruct their representatives” on important issues.
The right to instruct appeared in the state’s 1776 constitution immediately after the declaration of independence from Great Britain and persisted through rewrites in 1868 and 1971. Some 18th Century commentaries described the purpose as requiring representatives to hear constituent priorities on taxation, treaties or other burning issues before leaving their districts for the distant capital, an acknowledgment that once the representatives left their homes, communication would be difficult, Appeals Court Judge Richard Dietz observed.
State courts haven’t previously been asked to define what the right means today, and it’s not clear how far courts could go in limiting the political tactics that obscure legislative business, Dietz said. Perhaps courts should simply leave it to voters to punish politicians who appear to favor game-playing and secrecy over transparency, Dietz wondered.
But if courts refuse to enforce the right as they do free speech and religious freedom, “that would effectively write this phrase out of the constitution,” Burton Craige, an attorney representing the government reform group Common Cause and other plaintiffs, told the three judges.
A lower court last year did not find any violation, saying it was hard to measure when the right to instruct is violated.
But Craige argued that Republicans running the General Assembly secretly planned the move against the incoming Democratic governor to diminish the public’s ability to respond to their actions.
“If these facts don’t violate the right to instruct, then what facts do?” Craige asked. The constitutional right to instruct representatives means “the ability to communicate and convey citizens’ views in the legislative process.”
He asked judges to invalidate the laws that included forcing Cooper to have his top cabinet aides confirmed by senators. Other changes that shifted control over administering elections and reduced the number of employees Cooper could hire already have been struck down.
A state attorney representing top Republican lawmakers said the right is general and carries no requirement that legislators provide some minimum notice before taking action. With news updates available 24 hours a day, communications and travel easier than they’ve ever been, and corps of lobbyists observing and helping shape legislation, citizens have plentiful opportunities to know about and respond to proposals, attorney Matthew Tulchin said.
What the plaintiffs want is “the absolute right of every individual to receive specific notice of legislation, the opportunity to review in full that legislation prior” to legislators acting, and to get enough time communicate their views, Tulchin said.
“The legislative process can be a messy process,” he said.