GREENSBORO — Guilford County Attorney Mark Payne says that local officials don’t have a lot of options in responding to a recent court decision requiring them to pay the winners’ legal fees in Greensboro’s 2015 redistricting lawsuit.
Even though the county did not make the law that triggered the lawsuit and the Guilford County Board of Elections did not take sides in it, the 4th U.S. Circuit Court of Appeals has ruled county taxpayers must pay legal fees for a group of residents who joined the Greensboro City Council in the successful civil suit.
The tab could exceed $600,000.
Appealing that outcome to the nation’s highest court is one possibility, but getting heard there won’t be easy, Payne said.
“We can seek an appeal to the Supreme Court through a petition for certiorari,” Payne said, using legal terminology for requesting a higher court review. “However, being realistic, the chance of the Supreme Court taking up this matter on appeal is very small.”
Payne said his assessment is not necessarily because the case lacks merit or any other legal consideration, but more of a statistical reality: Due to the “overwhelming numbers of petitions” it receives, only a tiny percentage ever get their day before the high court, he said.
The county’s other options include relying on U.S. District Judge Catherine Eagles to determine what payment would be reasonable or separately negotiating a settlement with the Southern Coalition for Social Justice, the nonprofit group that represented eight Greensboro voters who — alongside municipal government — sued to overturn the state-mandated revamping of the city’s electoral system.
Eagles presided over the federal lawsuit, found that the changes to city elections were unconstitutional and later decided against the coalition’s request to bill the county for its legal fees. It’s that decision the appeals court overturned several months ago in a ruling that became public knowledge this week.
County officials have not decided which path to take and are “reviewing all three options at this point,” Payne said.
Because it was a state law that got the county elections board in trouble, another way to possibly lessen the burden on Guilford taxpayers could involve the county’s 10-member legislative delegation trying to secure repayment from state coffers for whatever local officials eventually shell out.
“We need to discuss it with the delegation and other members of the legislature,” said state Rep. Jon Hardister, R-Whitsett. “It’s a tough situation since the city decided to sue the county. I cannot say at this point what the odds are.”
Greensboro officials picked who to sue, but they are not directly involved in the legal-fee dispute. The city waived its legal fees after winning the case in the U.S. District Court for the Middle District of North Carolina after a February 2017 trial.
Payne said the county was in a tough spot after the suit was filed against the Board of Elections charged with carrying out the disputed municipal election law, rather than against state government that had enacted it.
The original lawsuit’s core issue was a measure championed by then-state Sen. Trudy Wade that sought to reshape the way Greensboro council members were elected.
Under the measure, the council would have been cut from nine to seven members and the mayor could vote only in breaking a tie, council member terms would have been lengthened and voting districts revised.
The county Board of Elections played no role in creating or adopting the law, but it was the target selected by Greensboro and the local residents because it had the duty of carrying out the new rules.
Payne said in an email that this put the county board in the awkward position of being the only defendant in the case, yet one who “did not, and could not defend the legislation (or for that matter oppose the legislation.)”
“The Board of Elections is to hold fair and impartial elections,” Payne said of the county board. “Taking sides in a contest over the constitutionality of an election law would make that impossible.”
Payne said the board’s only option was to take a hands-off approach while trying “to facilitate the quick conduct of the trial.”
He said officials are “clearly disappointed with the 4th Circuit’s decision.”
“However, it is now the law of the land,” Payne said, adding that Guilford officials will follow it while trying to be the best possible stewards of public resources.