Courts & the Law, News

Three-judge panel won’t halt bill implementing voter ID during litigation

A three-judge panel Friday ruled it would not block North Carolina’s latest attempt to require a photo ID at the ballot box.

Six voters filed a lawsuit the day Senate Bill 824 was enacted, the measure implementing a constitutional amendment that requires a photo ID to vote. They alleged the new law is racially discriminatory and will result in eligible voters being disenfranchised.

Those voters — who are represented by the Southern Coalition for Social Justice — had asked the court to block the law from going into effect during the pendency of the litigation, but the Friday ruling states the three-judge panel doesn’t believe they will succeed on the merits of their case.

The decision was made 2-1, with Judges Nathaniel Poovey and Vince Rozier concurring and Judge Michael O’Foghludha dissenting.

“In weighing the equities for and against an injunction, Judge O’Fughludha would hold that the reasonable likelihood of disproportionate impact on minority voters would outweigh the likelihood of actual in-person voter fraud, as the risk of the latter, based on historical data, approaches zero,” his dissent states. “Further, the implementation of photographic voter ID pursuant to the constitutional amendment has already been delayed by further legislation until 2020, and the likelihood of voter confusion between disparate methods of in-person voting in 2019 and 2020 would be obviated by the preservation of the status quo during the pendency of this litigation.”

The three judges did agree to dismiss five of the plaintiffs six claims in the lawsuit. Read more about the case here, and read the full Friday order below.

18 CVS 15292 Order on PrelimInj and MTD 7 19 2019 (Text)

Courts & the Law, News

Key expert witness on Day 2 of testimony in partisan gerrymandering trial

Thomas Farr, an attorney for the legislative defendants in a partisan gerrymandering trial, cross examines Jowei Chen, an expert witness for the plaintiffs. (Photo by Melissa Boughton)

A key witness in North Carolina’s partisan gerrymandering trial continues to testify today about how the state’s 2017 legislative maps are considered extreme partisan outliers and the mapmaker singularly focused on partisanship while drawing them.

Jowei Chen, an expert for the plaintiffs in Common Cause v. Lewis, presented analysis Tuesday that Thomas Hofeller — the deceased mapmaker behind the 2017 voting districts — predominantly considered partisan advantage during the redistricting process and did not follow the publicly adopted criteria.

Chen — who has expertise in geographic information systems, political geography, redistricting and legislative districts — testified about a series of computer-simulated maps he created to establish a baseline with which to compare Hofeller’s draft maps and the legislature’s final enacted maps.

Hofeller’s daughter turned over his digital data to the plaintiffs in the case after his death. Most of the files are still involved in litigation about whether they can be used, but the three-judge panel in the Wake County Superior Court presiding over Common Cause has allowed 35 specific relevant documents to be used at this trial.

In addition to analyzing the maps, Chen answered four questions about whether partisan intent dominated in the redistricting process, what the effect of the final enacted plans was on a number of legislative races, if Hofeller used the adopted redistricting criteria and the effect of the final plans on individual House and Senate districts.

He said that partisan intent did dominate and it had the effect of producing fewer Democratic districts than would have emerged if Hofeller’s map drawing would have followed the traditional redistricting criteria set by the legislature during a public process.

Chen is animated when he talks about his work, and frequently was asked to slow down Tuesday by the court reporter. His testimony was straight-forward and extremely detailed. Questioning often delved deep into the weeds of redistricting and mapmaking.

He also presented evidence about how Hofeller finished drafting most of the maps in late June before the legislative redistricting process ever began and that many of the plaintiffs in the lawsuit were placed into enacted districts that were considered to be partisan outliers compared to computer-simulated plans that followed the traditional adopted criteria.

Other analyses Chen went over included his findings from overlapping Hofeller’s draft maps with the final enacted maps. He said Hofeller assigned 97.6 percent of Census blocks containing 95.6 percent of the total North Carolina population into the draft Senate map before the redistricting process took place and 90.9 percent of Census blocks containing 88.2 percent of the total state population in the House plan.

He also showed through screenshots from Hofeller’s mapmaking program how he copied his draft maps to eventually become the final maps.

Jowei Chen is an expert witness for the plaintiffs in Common Cause v. Lewis. (Photo by Melissa Boughton)

Finally, Chen presented findings that showed the mapmaker used race as part of the redistricting process while creating the draft maps.

Today, Chen only testified under direct examination for a few minutes before Thomas Farr, an attorney for the legislative defendants, objected to the admission of his and other expert reports into evidence and the Hofeller files as a whole.

Farr, who was nominated by President Donald Trump over the past two years to a federal judgeship, told the judges that courts frequently don’t admit expert reports and instead rely on only testimony. The plaintiffs, he added, had plenty of time to make their case with Chen.

He also said the legislative defendants believed all the files from Hofeller’s computer should have been eliminated. He objected to the use of the files on grounds that they weren’t relevant to the case.

“The issue in this case is whether the maps adopted by the General Assembly are legal,” he said. “All this testimony about Dr Hofeller is a sideshow.”

Farr pointed out that there was no evidence legislative leaders Rep. David Lewis (R-Harnett) and Sen. Ralph Hise (R-Madison) ever saw Hofeller’s computer or files, and that the documents were “highly, highly prejudicial.”

Daniel Jacobson, an attorney for the plaintiffs, argued that the expert reports should be admitted based on a “residual exception” and said they would be helpful for the judges to better understand the case.

He described the Hofeller files Farr objected to as “smoking gun evidence.”

Daniel Jacobson, an attorney for the plaintiffs in a partisan gerrymandering lawsuit (pictured right), argues against objections by Thomas Farr, an attorney for the legislative defendants, to throw out expert reports and files from a dead mapmaker’s computer. (Photo by Melissa Boughton)

“I cannot think of evidence that would be more relevant to a partisan gerrymandering case,” he added.

He said if someone hires an individual to do a job — as is the case with the lawmakers and Hofeller — that person’s activities and state of mind were relevant. He also argued that the Hofeller files were public record.

Judge Paul Ridgeway delivered the panel’s ruling on the issues. They admitted the expert reports to corroborate testimony but said they would make a decision at a later time about whether to consider them on a substantive basis.

Ridgeway said they also found the Hofeller files to be relevant and admissible. They conducted a balancing test, he said, and ruled the probative purpose of documents outweighed the prejudice to the legislative defendants.

Farr began Chen’s cross examination after the ruling. He went over his background and asked specific questions about how he conducted his analyses.

He also asked some hypothetical questions about Hofeller’s work. In one, he asked if it was possible the mapmaker could have looked at the race of voters after drawing the maps as opposed to during to check his work. Chen responded that, technically, it would have been possible that Hofeller put his hand over the computer screen and blinded himself to it, but that it was open during the drawing process.

Farr is currently continuing cross examination. For live updates during the trial, follow reporter Melissa Boughton on Twitter.

Courts & the Law, News

NAACP in voter ID, tax cap litigation appeal: Illegal actions have consequences

Illegal actions have consequences — that’s the message the NAACP is sending to lawmakers in its response to an appeal of a court’s decision to throw out the voter ID and tax cap constitutional amendments.

A Wake County Superior Court judge ruled in February that the unconstitutionally constituted legislature did not have the authority to alter the state constitution when it proposed those two amendments. Lawmakers appealed the decision, and the NAACP, which raised the legal challenges, has asked for the state Supreme Court to step in, but in the mean time, litigation goes through the state Court of Appeals.

The plaintiff’s argument in its appellate response is that the legislative defendants forfeited their claim to popular sovereignty when they drew illegal maps that racially segregated voters and diminished the political voice of African Americans. They are represented by the Southern Environmental Law Center.

It states that Republicans, who had a supermajority in the legislature at the time the amendments were created, knew they obtained power illegally and was warned about it by a federal court, but still proceeded.

“Nevertheless, Defendants, without regard for the law or the people they serve, attempted to rewrite our state’s most foundational document,” the court document states.

The legislative defendants wrote in its appeal that the lower court that ruled in favor of the NAACP focused more on the ills it perceived from redistricting than it did the merits of the case.

“The trial court became the first known court in the country to void amendments passed by a majority of voters on the theory that state legislators were usurpers and lacked the ability to propose amendments to the people for a popular vote,” the initial appeal states.

The defendants contend that the trial court encroached on the legislative branch and violated the separation of powers, so the Court of Appeals should overturn its decision.

The NAACP response states that the defendants “rely on inapposite case law, alarmism, and misinterpretation of state law.”

Gov. Roy Cooper filed an amicus brief in the case agreeing with the NAACP’s position that lawmakers should not have been able to propose an alteration to the state constitution. Read more

Courts & the Law, News

Court allows some Hofeller files to be used at gerrymandering trial, temporarily makes the rest confidential

The 35 files from deceased mapmaker Thomas Hofeller’s digital documents related to North Carolina redistricting can be used at the highly-anticipated partisan gerrymandering trial next week, according to a set of court orders released late Friday afternoon.

The rest of the 75,000-plus “Hofeller files,” however, will be designated as confidential for 60 days so the political consulting firm Hofeller co-founded can sort through them and determine which documents they can claim ownership of or some other claim of right. The firm, Geographic Strategies, had initially asked the court to mark the entirety of the Hofeller files as “highly confidential” or to destroy all the documents.

“The court is aware that many of the documents contained in the Hofeller files are public and non-privileged,” the Friday order states. “It’s objected through this order is not to shield the public documents but rather to craft a solution that respects potentially legitimate property rights of Geographic Strategies in the subset of the Hofeller files that are demonstrably proprietary.”

The order states that the plaintiffs in Common Cause v. Lewis must turn the Hofeller files over to Geographic Strategies within three business days. During the 60 days the court has designated the files as confidential, none of the parties to the gerrymandering case can disseminate any of the Hofeller files to third parties without petitioning the court for permission.

The order does not apply to the 35 documents the plaintiffs asked to use at the two-week trial, which will begin at 10 a.m. Monday at Campbell Law School. The plaintiffs also do not have to turn over the personal documents within the Hofeller files — those are confidential to everyone involved in the case.

Other courts can still exercise discretion to compel inspection of the Hofeller files, a notable stipulation in the Friday order since many of the documents likely have to do with other litigation across the country. Some of the files have already been introduced in litigation over the 2020 Census citizenship question.

While plaintiffs can’t share further information about the Hofeller files, the new court order does not appear to apply to any third parties who may have already gotten access to them. The three-judge panel in another order also denied a request from the legislative defendants in Common Cause to force the plaintiffs to turn over a list of everyone who has had access to the files.

In that same order, the court also denied the plaintiffs request to force the legislative defendants to stop purporting to designate the entirety of the Hofeller files as highly confidential and to stop demanding that they destroy all the documents.

“The Court’s primary objective at this stage in the litigation is to ensure that documents necessary for the administration of justice in this case are made available,” the order states. “The court is satisfied that such documents have been identified, that all parties have agreed that those documents are not subject to any assertions of privilege, and that the documents likely fall under the public record designation.”

In their motion allowing the 35 already identified Hofeller files to be used at the trial next week, the court said it was satisfied the plaintiffs properly authenticated the documents and that chain of custody issues were not relevant because none of the files had been altered. There could still be other types of evidentiary objections at trial, but for now, those select Hofeller files are admitted.

Finally, the court granted and denied several motions by several parties to the case regarding specific evidence and testimony that could be presented next week. Notably, it denied the plaintiffs request to preclude the legislative defendants from offering evidence or argument related to their use of information in the redistricting process to comply with the Voting Rights Act.

Read the court motions in full below:

18 CVS 14001 Order on GeoStrat Motion Re Hofeller Files (Text)

18 CVS 14001 Order on Motions in Limine Re Hofeller Files (Text)

18 CVS 14001 Order on Plts Motion for Direction (Text)

18 CVS 14001 Summary of Rulings From 7 10 2019 (002) (Text)

Courts & the Law, Defending Democracy, News

Author: 2021 will bring ‘unfettered festival of partisan gerrymandering’ after SCOTUS ruling

David Daley

North Carolina courts could be on the cusp of changing the rules when it comes to partisan redistricting, but other states might not be so inclined following the recent U.S. Supreme Court decision.

David Daley, the author of Ratf**ked: Why Your Vote Doesn’t Count, spoke with Policy Watch on Wednesday about the future of democracy in America. He was not hopeful.

“I think what you’re going to see in 2021 is an absolute unfettered festival of partisan gerrymandering, the likes of which we’ve never seen before because the Supreme Court has essentially given a green light by saying you don’t have to worry,” he said.

The high court ruled at the end of June that partisan gerrymandering challenges were out of the reach of federal courts. It pointed to the states to decide how to control redistricting, which will likely lead to a patchwork of different laws across the country.

Daley has spent significant time researching and writing about gerrymandering. His book, Ratf**ked, examines the rise of the Republican Party through strategic gerrymandering efforts and explores how it’s affected democracy in America.

He said the Supreme Court ruling means that Republican gerrymanders from 2011 will continue to provide red seawalls that likely will continue to exist for another decade. It might change if Democrats can find a way to win back one of the chambers in areas like Ohio, North Carolina, Wisconsin and Florida, but they haven’t been able to do that over the past decade.

In states where one party controls the redistricting process, Daley speculated that voters will witness them “go all out to maximize the maps to their advantage” and they’ll have terabytes of voter data and the most sophisticated mapping software ever used to slice America up even more than they already have.

He said that Republicans have taken redistricting much more seriously than Democrats over the past 40 years. While Democrats spent the past decade trying to undo the red wave, Republicans were thinking about the next redistricting cycle and how the citizenship Census question could help the mapmaking process.

“It’s strategists like Tom Hofeller who were always able to peer around the corner and see what’s better next time, while Democrats seem to focus on catching up to the last fight,” he said. “That’s galaxy brain of redistricting.”

Hofeller died last year, but he was a renowned GOP mapmaker, including in North Carolina. His digital files are at the center of a state court battle after his daughter gave them to the plaintiffs in Common Cause v. Lewis following his death.

The files already unveiled his involvement in the formation of the citizenship question on the 2020 Census — which is still an ongoing legal fight — but court watchers have said those documents could contain a lot of more information about the inner workings of the Republican Party’s redistricting strategies.

Regardless of if the documents will eventually come to light, Daley said he expects redistricting fights to look a lot different in the future after the Supreme Court’s ruling.

He’s optimistic about North Carolina’s opportunity, though, to put limits on partisan gerrymandering. The trial in Common Cause v. Lewis will begin at 10 a.m. Monday. It’s expected the whole nation will be watching, but especially those from North Carolina who have been fighting for fair maps for years.

Tomas Lopez, Executive Director of Democracy NC, said his group will be watching and he’s hopeful the state courts recognize the claims before them.

“All of us who support fair maps are going to keep fighting for them, and that effort includes legislative solutions like Senate Bill 673’s Gold Standard Citizens Redistricting Commission,” he said. “As we wait for our state courts to have their say, this legislative proposal would finally and formally take the power to draw maps away from lawmakers, remove the incentive to rig maps regardless of who’s in power, and elevate citizen input over partisanship. For North Carolinians, these and other state-level redistricting reforms and anti-gerrymandering rulings can’t come quickly enough.”

SB 673 is one of a half a dozen bills pending at the legislature this session — none have been scheduled for a hearing.