Courts & the Law, HB2, News

No conclusion in HB2 successor case despite plaintiffs, governor’s proposed agreement

ACLU staff attorney Chase Strangio (right) and client Joaquin Carcaño (left) talk to reporters about House Bill 142 after Friday’s court hearing. (Photo by Melissa Boughton)

Lawmakers do not want Gov. Roy Cooper to agree to allow transgender individuals to use restrooms under executive branch control that match their gender identity.

Cooper and the plaintiffs who are challenging House Bill 142, which replaced House Bill 2, the anti-LGBTQ legislation that became known as “the bathroom bill,” have been trying to enter into a consent decree for almost a year. Judge Thomas Schroeder, a George W. Bush appointee, heard arguments about it Friday.

The agreement would specify that HB142 could not be used to ban people from using restrooms or facilities consistent with their gender identity that are under the executive branch’s control or supervision. It would also allow local governments to interpret their laws to protect individuals from sex or gender identity discrimination.

It essentially codifies an opinion that Schroeder already made in the case. Gene Schaerr, an attorney for the legislative defendants — who intervened in the HB2 and HB142 litigation — said they oppose the agreement, even though they’re not included in it. He cited concerns about ambiguity in the agreement language, issues with federalism and keeping the federal court involved in a state government power struggle and the negotiation process between Cooper and the plaintiffs.

“Our clients care a lot about federalism,” Schaerr said.

Schroeder entertained those concerns and expressed some of his own, particularly in some of the vague language in the agreement, although the plaintiffs and attorneys for Cooper made some of it more specific to try and appease him and the legislative defendants. Schaerr was unfazed by that attempt.

There was no conclusion in the case, something Schroeder strived to make happen given that it’s been going on for three years. He ordered all the parties to work together over the next two weeks and to submit a new consent decree by May 31. He said he hopes everyone can be on board with some type of agreement, but if lawmakers still can’t approve it or just have no position on it, he’ll take up their additional concerns at that time.

If an agreement was approved by the court, it would end the lawsuit, with the exception of some damage claims involving the University of North Carolina — but those can’t be resolved until after the U.S. Supreme Court takes up pending cases involving Title VII and IX issues.

Chase Strangio, ACLU staff attorney for the LGBT and HIV project, said after Friday’s hearing that it was clear lawmakers were not interested in protecting transgender individuals, who are most harmed by HB142.

“People really need protections right now in this state and across the country,” he said. “Obviously, we want people to pass through North Carolina, we want North Carolinians to feel safe and protected by the laws, and so that is really what this is trying to effectuate and resolve this incredibly long-running litigation.”

Strangio said they would keep fighting for transgender rights in the state.

Plaintiff Joaquin Carcaño said all he wants is for transgender people to be protected and to be able to navigate daily life without barriers.

“They continue to put up a fight,” he said of lawmakers.

Courts & the Law, Defending Democracy, News

Democracy NC releases new report detailing impact of early voting uniform hours requirement

Without the last Saturday of early voting, more than half of North Carolina’s 100 counties may lose weekend voting altogether, according to a new report from Democracy NC.

The report, titled “Greater Costs, Fewer Options: The Impact of the Early Voting Uniform Hours Requirement in the 2018 Election,” found that the uniform weekday hours requirements under Senate Bill 325 drained local resources and led many counties to reduce Early Voting sites and weekend voting options in the 2018 midterm election.

The measure requires counties to keep satellite early voting sites open from 7 a.m. to 7 p.m. on weekdays, which massively increased staffing costs. It also explicitly eliminated the popular last Saturday of early voting for all elections after 2018. Legislation was passed just before the election to add the last Saturday back in 2018 only. Democracy NC’s research found that the removal of this popular weekend option in future elections would disproportionately impact young voters, Black and Latinx voters, and voters in rural counties.

Senior Researcher Sunny Frothingham, who authored the report, said the changes under SB 325 not only forced counties across North Carolina to reduce popular polling hours and options in 2018, but also, without legislative changes, will set the stage for more limited access to early voting in 2020’s high-profile presidential election cycle.

“Over the last decade, North Carolina has become infamous for some of the nation’s most harmful voter suppression tactics — including Senate Bill 325, which forced the majority of counties to reduce the number of weekend hours and almost half to eliminate popular voting sites” she said. “Under current law, counties will face the same constraints moving forward, and North Carolinians will lose access to the heavily-used last Saturday in all future elections, including 2020.”

The report acknowledges that 2018 was a high turnout election statewide compared to 2014, but notes that site changes chipped away at county-level performance, especially in rural counties where the distance between voters and early voting sites increased the most.

Other key findings in the report, according to the voting rights organization are:

• Following the passage of SB 325, 43 counties reduced the number of early voting sites offered in 2018 compared to 2014, 51 counties reduced the number of weekend days offered, and 67 counties reduced the number of weekend hours.
• Of the eight rural Eastern counties where a majority of registered voters are Black (Hertford, Edgecombe, Bertie, Northampton, Halifax, Vance, Warren, Washington), four of those counties (Bertie, Northampton, Halifax, and Vance) reduced sites under SB 325, all but Halifax County reduced weekend days, and all eight reduced the number of weekend hours during early voting. None of the eight counties increased sites or weekend options.

Democracy NC Executive Director Tomas Lopez called on the legislature to take immediate action and take up House Bill 893. The 2019 proposal, which was referred to the House Committee on Elections and Ethics Law last month, would restore the early voting law to pre-2013 flexibility, return the mandatory last Saturday of early voting and provide maximum flexibility to county Boards of Elections to design early voting schedules that could vary across satellite sites.

“While uniform voting hours are not inherently negative, as implemented, S325 makes it harder for voters to have their voices heard and for election officials to provide the robust early voting opportunities that North Carolina voters expect and deserve,” he said. “The 2020 election cycle starts early and will involve many more voters than cast ballots in 2018 — it’s time for lawmakers to consider legislation that would give North Carolina’s counties back the flexibility needed to make the best decisions for their resources and voters.”

Read the full report below.



Impact of S325 (Text)

Courts & the Law, News

NC Board of Elections appoints new executive director with party line vote; agency counsel resigns

Kim Strach and Josh Lawson

The State Board of Elections has named Karen Brinson Bell as the new executive director of the agency, expectedly marking the end of Kim Strach’s tenure.

Members voted 3-2 along party lines during a teleconference to make the change and had a contentious discussion, with the two Republicans asserting their support to keep Strach as head of the agency for continuity and public trust. That discussion was interrupted briefly due to a fire alarm at the physical State Board building downtown, and the vote was taken not long after.

Strach will continue her service through the end of May. Bell will move to Raleigh from Charleston, South Carolina to start as executive director June 1.

“Kim has been a great investigator, but we need a change in our focus to election administration moving forward,” said Chairman Bob Cordle.

Shortly after the decision, the State Board’s general counsel, Josh Lawson resigned effective May 31. He wrote in a letter (posted at the end of this article) that no member sought his resignation, but it was clear he didn’t approve of the change.

“Choices shape democracy, and yours have outsized effect in our State,” he wrote. “This agency serves voters best when it chooses accountability over complacency, people over partisanship, and the future over our past. These serious times require nothing less, as you confront real and growing threats to elections security, public trust, and the democratic process.”

It’s not yet clear who will replace Lawson.

Karen Brinson Bell

Brinson Bell currently serves as deputy director of the Ranked Choice Voting Resource Center, a nonprofit organization specializing in ranked choice voting, in which voters rank candidates in order of preference.

Gary Bartlett, who was at the helm of the State Board for 20 years before Strach, runs the organization. It’s not known how she became a candidate for the top job at the State Board or if there was a nomination process.

Brinson Bell, 44, previously served four years as Elections Director for Transylvania County in North Carolina and five years with the NC State Board of Elections voting systems division, according to her online biography. During her tenure, she helped administer instant runoff elections for the City of Hendersonville in 2007 and 2009, a district court election in 2010 and a statewide election for a North Carolina Court of Appeals seat in 2010.

Cordle cited Brinson Bell’s county director experience as part of the reason for her appointment — she is believed to be the first executive director who has previously held the county director title. He said the State Board needs to prepare properly for the 2020 election, adding that some have referred to it as the biggest of a generation.

He went over all the details of what makes elections large undertakings and discussed the level of coordination that has to be maintained between the state and county boards.

“We need there to be a consistency in the way these elections are carried out,” he said. “It’s a large task, and to be a success requires detailed planning, coordination, training, knowledge and focus. I believe with Karen Brinson Bell, we found someone with the experience, skill and expertise needed to make sure that our elections are run smoothly and efficiently as possible.”

Brinson Bell, he added, has had a large variety of election experience and computer software experience.

Cordle also spent some time praising Strach for her work at the State Board. She has been at the helm of the agency for six years but has worked there for two decades. She was appointed to the top job by former Republican Gov. Pat McCrory.

“Now, none of what I’ve said about Karen and our need to change focus at the State Board is to take away from the great work Kim Strach has done in her approximately 19 years at the State Board,” he said.

He described the trying and unusual times Strach had to navigate, including managing with and without a State Board during litigation between Gov. Roy Cooper and GOP legislative leaders about the agency’s structure.

“During all of this turmoil, Kim kept the election ship afloat,” Cordle said.

The culmination of her work, he said, was with the evidentiary hearing in the 9th congressional district in which she presented evidence of “coordinated, unlawful and substantially resourced” absentee ballot fraud. It is reported, he added, to be the only congressional race overturned, and Strach is chiefly responsible for that.

Cordle’s Republican colleagues, Ken Raymond and David Black, also commended Strach for her work on the 9th congressional district investigation and for keeping and maintaining trust with Republicans and Democrats across the state.

“Because of the actions that our Board took regarding the NC09 congressional race, we will be under constant national scrutiny for how we conduct [the 2020] election,” Black said. “As Ken said, Kim has been tenacious in going after both sides when it came to what she believed was breaking the law. In fact, she did not see party, but what she saw was the law.”

He and Raymond both pointed out the political implications of replacing Strach and said there would be public trust lost in that process without a compelling reason for such a big management change at the top.

“This is not a position that should be bounced back and forth like a ping pong ball,” Black said.

Raymond said he did not believe Cordle’s reasons for appointing Brinson Bell weren’t compelling enough and said the decision appeared purely political. He added that the move would send the message that fairness from the executive director’s office is not a priority.

Cordle told him he was entitled to his opinions.

At the end of the meeting, the State Board voted unanimously to make a resolution honoring Strach for her work.

Brinson Bell will oversee about 70 State Board employees, according to a news release. The Raleigh-based Board of Elections is charged with administering elections and overseeing 100 county boards of elections, as well as campaign finance disclosure and compliance.

Her first day on the job will be June 3, and her two-year term will expire in May 2021.

“Our top priorities will be promoting voter confidence in elections and assisting the 100 county boards, the boots on the ground in every election,” Brinson Bell said in the release. “I plan to roll up my sleeves and work with State Board staff to prepare for the important elections ahead.”



Josh Lawson resignation letter (Text)

Courts & the Law, Defending Democracy, News

Board of Elections set to discuss Executive Director appointment; Kim Strach’s future in question

Kim Strach

Next week could signal the end of State Board of Elections Executive Kim Strach’s time at the agency.

She has been at the helm of the State Board for nearly six years to the day but has worked there for two decades. She was appointed to the top job by former Republican Gov. Pat McCrory. Her predecessor, Democrat Gary Bartlett, served in the role for 20 years.

The State Board released an agenda Friday for a Monday meeting in which members plan to discuss the executive director’s appointment. WRAL reported shortly after that Democrats planned to oust Strach. Board members Friday could not be reached by NC Policy Watch to confirm.

Strach’s served in an interim capacity for some time, since the State Board was restructured so many times during a power struggle between Republican legislative leaders and current Democratic Gov. Roy Cooper.

The newest version of the law structuring the State Board dictates that new members shall appoint an executive director for a two-year term. That person is responsible for staffing, administration and other execution of the State Board’s decisions and orders, among other things.

New members — three Democrats and two Republicans appointed by Cooper with input from the two main political parties — took over in January.

In February, they were focused on an evidentiary hearing that unveiled “coordinated, unlawful and substantially resourced” absentee ballot fraud in the 9th congressional district, where a new Republican primary is currently being held. Strach — who is married to Phil Strach, who represents Republican lawmakers in gerrymandering cases — presented the State Board’s evidence about the fraud during the hearing.

The State Board is set to discuss the new appointment at 11:30 a.m. Monday in a telephonic meeting. Members of the public can listen in by calling 562-247-8321 and entering code: 241-966-323. Public meeting materials will post on a rolling basis to the online meeting portal.

Courts & the Law, Defending Democracy, News

Three-judge appellate panel considering how much right public has to instruct NC lawmakers

What does the constitutional right for North Carolinians to instruct their representatives mean?

That was the question a three-judge panel at the state Court of Appeals mulled over Thursday morning in Common Cause v. Forest, a challenge to the 2016 special legislative session in which two bills were passed that fundamentally changed the balance of power between governmental branches.

Burton Craige argued on behalf of the plaintiffs, Common Cause and 10 North Carolina citizens. He said that lawmakers provided no notice about the special session, suspended the majority of legislative rules and buried the substantive legislation by filing 26 other bills at the same time.

“They knew for months in advance what they were going to do,” Craige said. “They planned for it and they deliberately withheld it from the public and other legislators.”

He pushed for the court to craft a rule requiring notice for special legislative sessions and a reasonable opportunity for members of the public to communicate with their representatives.

Judge Richard Dietz, who is a registered Republican, asked Craige a lot of questions and played devil’s advocate during his argument. He said there wasn’t really any guidance when it came to the constitutional right to instruct, so the court would have to create precedent if it stepped into the challenge and overturned the lower court’s ruling for the defendants.

“Why couldn’t people call on legislators to call another special session and undo it?” he asked. “One of the unique features of legislating is that you can undo what you’ve done.”

He also indicated that the legislative process is always confusing and asked what made the special session different from a regular session committee meeting in which a complicated amendment might be added without notice.

Craige told him regular sessions were planned and people have ample notice to mobilize and lobby and participate in the process — special sessions, he added, have their own constitutional significance. He said the challenge for the court would be to reconcile the right of lawmakers to call a special session and the right of the people to instruct their representatives about legislation.

He addressed the court’s concerns about establishing a timeline for the right to instruct to the right to procedural due process. That right does not give “x period of time” but the courts established what it meant.

“If these facts don’t violate the right to instruct, what facts do?” he asked. “[The court] must give meaning to those rules.”

Dietz asked the attorney for the state, Matt Tulchin, a similar question during his argument. He asked him what his example would be of a situation that violates the right to instruct.

Tulchin told him it would be more generalized — if legislation couldn’t be made public prior to its enactment or if lawmakers prohibited lobbying or the public’s opportunity to communicate altogether with them.

He said the right to instruct hasn’t been used in the country in over 100 years because it’s a different time now than when it was created. We live in a 24/7 news cycle and communication and travel to the capital is easier, he said, adding that just because the right is in the constitution doesn’t mean it is what the plaintiffs want it to mean.

“That would render a lot of legislation unconstitutional,” he warned of the judges imposing a time-frame for public notification.

Tulchin said that the public did have time to communicate with lawmakers during the 2016 legislative session and that the media reported on the substantive bills before they were introduced. He also said there was nothing preventing citizens from communicating with lawmakers after a bill passed.

The bills that were passed out of the session were Senate Bill 4, which changed the structure of state and county boards of elections and the State Ethics Commission, created partisan appellate judicial elections, and stripped the newly elected governor of the power to administer the Industrial Commission, and House Bill 17, which transferred power from the state Board of Education to the Superintendent of Public Instruction.

There has already been extensive litigation over the substance of those bills rather than the special session itself.

Craige asked the judges to read and re-read the affidavits of the North Carolina citizen plaintiffs as part of the case. They wrote about being actively engaged in the political process on a regular basis and historically participating in robust discussion with lawmakers.

“Those avenues were cut off,” he said of the 2016 special session. “Reasonable notice and opportunity to be heard — that’s what the legislature needs to provide its citizens.”

The judges are taking arguments under advisement to release an opinion at a later time. Dietz presided with Judge Hunter Murphy, another registered Republican, and Judge Allegra Collins, a registered Democrat.