This post has been updated to reflect comments from outgoing GOP Gov. Pat McCrory's office saying they are not involved in this case. Legal experts say the timing of the petition to stop 2017 special elections -- filed literally on the eve of McCrory's departure -- suggests politics is very much in play.
With just one day to go before Gov. Pat McCrory (R) leaves office, it appears North Carolina Republicans are throwing a legal Hail Mary to the U.S. Supreme Court in another effort to undermine the incoming Democratic governor's ability to govern.
Lawyers for GOP state legislative leaders filed an emergency request to the Supreme Court, asking the justices to pause a court-ordered special elections for more than two dozen state legislative districts in 2017 — special elections in which Democrats could have an opportunity to pick up seats in North Carolina's GOP-dominated legislature.
A federal court found in the summer that 28 state House and Senate districts were racially gerrymandered, but the three-judge panel made the unusual decision to let the election go forward in those districts because it decided it was too late to redraw the maps. After the election, the court ordered the legislature to redraw the lines by March and hold special elections later in 2017.
Now, Republicans appear to be making one more, last-minute attempt to stop all that from going forward.
"On Election Day, millions of North Carolina voters went to the polls and selected the state legislators who would represent them in the general assembly for two-year terms in accordance with the North Carolina Constitution. Or so they thought," reads the petition, which was sent by GOP lawyers and election board officials to Chief Justice John Roberts, who handles emergency appeals for North Carolina but could refer this matter to the entire eight-member court.
After not returning repeated requests for comment Friday, McCrory's office said Saturday morning that McCrory did not have anything to do with the lawsuit.
The timing suggests the request to stop this special election is more about politics than anything else, says UNC Law professor Michael Gerhardt. The request comes a day before McCrory leaves office; Gov.-elect Roy Cooper (D) will be sworn in shortly after the clock strikes midnight and Saturday turns to Sunday. "It fits into the pattern of the legislative leadership and outgoing governor trying to box Cooper in," Gerhardt said.
Even though they lost the governor's mansion this fall, Republicans will start 2017 with a veto-proof supermajority in both North Carolina chambers. Democrats were excited at the prospect of having a rare second chance to pick up state House and Senate seats in 2017. If the Supreme Court grants the request for a stay, though, Democrats could have to wait until the 2018 midterm elections to try to win more seats under a new electoral map.
That would mean Cooper would spend two years — instead of potentially far less time — working with a Republican-dominated legislature that's already proved to be combative. After Cooper unseated McCrory this fall, Republicans convened a special session and passed legislation that would limit his power to appoint Cabinet positions and state and local elections boards. McCrory signed the legislation even though he described parts of it "wrong and short-sighted."
McCrory's government was already appealing to the Supreme Court the lower court's decision to declare these districts unconstitutional, but the incoming Democratic governor could simply drop the appeal. McCrory's office is also challenging the redrawing of two congressional districts; that case was argued in December by Paul Clement, the same lawyer who is heading this last-minute request to halt the special elections.
It's not clear what chance the request to put a hold on the map-redrawing and special elections will have in the Supreme Court. On Friday, McCrory also appointed several of his top aides to key positions on state boards.
Also on Friday, Cooper filed his own lawsuit against Republicans: To stop the recently passed law taking away his power to appoint people to the state elections board. On Friday evening, a county judge agreed to put a temporary hold on the law from going into effect on Jan. 1 until the lawsuit could go forward.
Cooper's legal team said in court more challenges would be filed in the weeks to come, which means North Carolina will likely be awash in lawsuits in the new year.