North Carolina Gov. Roy Cooper (D)

Learned helplessness (noun) [psychiatry]: a condition in which a person suffers from a sense of powerlessness, arising from a traumatic event or persistent failure to succeed. It is thought to be one of the underlying causes of depression. - Oxford Living Dictionary

If that definition sounds painfully — personally — familiar to you, you might just be a typical North Carolina Democrat. But you wouldn’t be the state’s newly-elected Democratic governor, Roy Cooper. No-sir, no-how. Because despite long odds (a veto-proof GOP supermajority in the legislature, plus the GOP’s emasculation of the governor’s powers shortly before he took office), Cooper is fighting back hard. And this week he’s conducting a master class in how that’s done, through the kind of canny opportunity assessment that is more usually thought of as Republicans’ forte.

This week witnessed one such opportunity, which Cooper has just jumped on: Monday’s unanimous SCOTUS affirmation of a lower court ruling in Covington v North Carolina that the state’s legislative district boundaries are an unconstitutional racial gerrymander. Ruling just three short months shy of last November’s election, the lower court’s original decision held that

With much reluctance [….] we decline to order injunctive relief to require the state of North Carolina to postpone its 2016 general elections, as we believe such a remedy would cause significant and undue disruption. Nonetheless, Plaintiffs, and thousands of other North Carolina citizens, have suffered severe constitutional harms stemming from Defendants’ creation of twenty-eight districts racially gerrymandered in violation of the Equal Protection Clause. These citizens are entitled to swift injunctive relief. Therefore, we hereby order the North Carolina General Assembly to draw remedial districts in their next legislative session to correct the constitutional deficiencies in the Enacted Plans.

In a related ruling shortly following the November election, the same lower court panel ordered the General Assembly to produce that new map by March 15th of this year, and to hold new elections by the end of 2017 (a full year earlier than state senators and representatives would otherwise face re-election).

But this year’s Ides of March came and went without that new map appearing, as NC GOP legislators appealed the lower court’s ruling. And while Monday’s SCOTUS decision affirmed the unconstitutionality of the 2016 map, the high court’s ruling also voided the lower court’s 2017 remapping and special election requirements (finding them insufficiently well justified), and remanded that portion of the case back to the lower court, for it to either provide a more carefully reasoned justification for a special election or else to order an alternative remedy.

Meanwhile, savvy observers of state politics are warning that the GOP’s strategic thinkers likely already have that proposed new map in hand. Why? And if so, why not just put all this fuss and feathers behind them by adopting that map right now (since their supermajority guarantees their ability to ram whatever map they’d like into law)?

The GOP’s twisted logic here is both simple and, as usual, cynically anti-democratic. Because by delaying the ‘reveal’ of the new map until the last possible moment — whether that’s months or even a year from now — Republican lawmakers gain the precious advantage of time. Time during which state Republicans already know what the new districts will look like, but Democrats won’t. Time during which Republicans can quietly recruit candidates and fundraise, but Democrats can’t — because no one can sensibly decide his or her candidacy, or seriously approach donors, without first knowing which district (s)he even lives in, and thus can run in. And, if worst comes to worst, (short) time to run out the clock, in hopes that when (not if) Democrats challenge that new map in court, and prevail yet again, that hapless court might once again be reluctantly forced to decline to impose a solution too near to election day, thus handing Democrats yet again a Pyrrhic victory: the prospect of a second straight election under a map already ruled to be blatantly unconstitutional.

Fittingly, it’s a no-brainer strategy for state Republicans: all upside, and nothing down. Or at least it seemed that way, until Gov. Cooper turned the tables on the GOP yesterday, when he issued a proclamation:

WHEREAS, all North Carolinians have a fundamental right to have their laws enacted by a legislature composed of members elected from valid and lawful districts; and WHEREAS, on June 5, 2017, the Supreme Court of the United States in Covington v. North Carolina affirmed without dissent the unanimous decision of three federal district court judges that the General Assembly violated the United States Constitution and misinterpreted federal law in establishing twenty-eight state legislative districts in 2011; NOW, THEREFORE, I, Roy Cooper, Governor of the State of North Carolina, pursuant to Article III, Section 5(7) of the North Carolina State Constitution, do hereby proclaim an “EXTRA SESSION OF THE NORTH CAROLINA GENERAL ASSEMBLY” commencing Thursday, June 8, 2017 at two o’clock in the afternoon, which shall continue until a new plan is enacted or for a period of two weeks, whichever is earlier, for the purpose of enacting new House and Senate district plans for the General Assembly that remedy the legislative districts ruled unconstitutional.

Here, Cooper is on firm ground. Article III of the state constitution unambiguously grants the governor the power to call a special session of the General Assembly:

The Governor may, on extraordinary occasions, by and with the advice of the Council of State, convene the General Assembly in extra session by his proclamation, stating therein the purpose or purposes for which they are thus convened.

And while it’s a little unusual to convene an “extra” session while the General Assembly is already in the middle of a regular session (as is currently the case), it is not historically unprecedented.

Importantly, the state constitution does not grant the General Assembly any say whatsoever in the matter. A duly proclaimed extra session on “extraordinary occasions” is not optional; it’s a constitutionally empowered order, not a request. And surely a state legislature that is, beyond any possibility of further legal argument, unconstitutionally formed, is “extraordinary.” Still, as you might expect, GOP legislators see things otherwise:

The N.C. House voted 71-44 Thursday morning to cancel Gov. Roy Cooper’s call for a special legislative session for redistricting, making the case that the governor’s move Wednesday was unconstitutional. The Senate agreed, citing the same reasons, a few minutes later. The Senate did not hold a vote on the issue, and Republicans cut off Democrats who sought to debate it on the floor.

A pretty bold — and an inevitably futile — move, considering that legislators have no constitutional power to “cancel” a governor’s proclamation.

So now we’re well into unexplored eleventy-dimensional chess territory. NC’s legislative districts are unarguably unconstitutional, according to the U.S. Supreme Court — full stop. And the duly elected governor has ordered immediate redistricting, pursuant to his clear constitutional authority to do so. Yet unconstitutionally elected state legislators have refused that order. The words “constitutional crisis” do come to mind.

It’s at least conceivable that, if he chose to, Cooper could order state police into the General Assembly to enforce his proclamation. But that would be quite beside the point in this chess game. The whole idea behind Cooper’s proclamation was to give Republican legislators one last chance to do the right thing — their third chance, after first drawing an unconstitutional racist map in 2011, and then failing to meet the March 15th 2017 court-ordered deadline to draw a remedial map, and then unconstitutionally defying the governor’s order to do so this week. An interesting legal argument can now be made that, having whiffed three strikes in a row, the legislature is now — or should be — out on strikes: the legislature, having abrogated its duty multiple times, has unambiguously demonstrated its bad faith. The task of drawing a new map in a timely manner must now be taken from it by the U.S. District Court and handed to a non-partisan Special Master.

Expect Cooper’s legal team to make just that argument in coming days. Cooper is a tough, savvy, seasoned litigator and a hard-boiled political pro. And GOP legislators have just walked through the door he so graciously held open for them.

Helpless? Hardly. Fighting like hell, with no quarter given.