Courts & the Law, News

Brennan Center remembers Citizens United 10 years later; urges reform

Ten years ago, the U.S. Supreme Court opened the door in Citizens United for mega-wealthy donors to infuse big money into political races across the nation.

Or, as the Brennan Center for Justice put it, the high court “slashed commonsense limits on campaign cash and set America’s campaign finance system on a path to overwhelming dominance by the ultra-wealthy few.” The non-profit at New York University released its analysis this week on House Resolution 1, the reform law that would counter Citizens United.

H.R. 1 is a public financing program that would “amplify the voices of small donors, so the flood of megadonor money can be balanced by supercharged funding from regular people.” The Brennan Center’s analysis shows it would fundamentally transform campaign financing for the better.

Since Citizens United, the share of election funding from megadonors has mushroomed: in 2016, a few donors of more than $100,000 accounted for more than half of all election spending, dwarfing the money given by millions of small donors. Even with the boom in grassroots engagement and small donations in 2018, small donors were overshadowed by megadonors. Without reform, the gap is only going to widen.

The imbalance in campaign finance has made many Americans frustrated and cynical. But while it may be easy to see the current state of money in politics as inevitable, the truth is powerful fixes are available to restore balance and empower everyday people.

Public campaign financing has succeeded in changing the way politicians raise money in states and cities across the country, from Maine to Arizona and New York City to Los Angeles. It reduces candidates’ need to chase big donors and makes typical Americans the most important source of funds. The boost that public financing gives small donors is needed now more than ever because non-millionaires simply can’t keep up with the gains at the top.

North Carolina defunded its public financing program years ago, and it subsequently led to millions in outside spending for the election of now state Supreme Court Justice Mike Morgan which shifted the court’s ideological balance to the left.

Previous Brennan Center research has shown that million-dollar campaigns for state supreme court seats were fast becoming the national norm. Dark, untraceable funds are flooding judicial races, and national political groups and business interests regularly pour money into these campaigns.

And this year isn’t expected to be any different as Republicans have a chance to win more seats and even out the ideology across the bench. There are three seats on the state Supreme Court up for election, and each race will be competitive.

Chief Justice Cheri Beasley, who was appointed to the helm earlier this year, will run against Associate Justice Paul Newby, currently the most senior on the court and the only Republican, to keep her place on the bench. North Carolina Court of Appeals Judges Lucy Inman, a registered Democrat, and Phil Berger Jr., a registered Republican, will vie for the seat Newby leaves behind.

And finally, on the high court, former lawmaker Tamara Barringer, a Republican, will challenge current Associate Justice Mark Davis, a Democrat, in his effort to stay seated after being appointed earlier this year by Gov. Roy Cooper.

H.R. 1, the For the People Act, was passed by the House congressional delegation in March 2019, and it is a comprehensive democracy reform package that would help quell big and dark money in political campaign races.

The bill includes a system of public financing for House elections that would multiply small contributions by matching donations of $200 or less at a rate of six to one, according to the Brennan Center analysis. A $200 donation would get a $1,200 match, making it worth $1,400 to the campaign. Candidates can choose to opt in if they show they have substantial public support. Those participating may not accept more than $1,000 in private funds from each donor — significantly lower than the contribution limit of $5,600 for the 2020 election cycle. And the amount of public funds each candidate can earn in an election cycle is capped.

Read the Brennan Center’s full analysis here about how H.R. 1 would turn the current funding landscape on its head.

Courts & the Law, Defending Democracy, News

Judges: Voters unhappy with 2016 special session should take care of it at the ballot box, not in court

The judicial branch of government has no right to tell the General Assembly how quickly laws must be enacted nor can it require them to give advance public notice ahead of a legislative special session, according to a state Court of Appeals opinion released today.

The plaintiffs in Common Cause v. Forest challenged the 2016 special legislative session in which two bills were passed that fundamentally changed the balance of power between governmental branches. The session was called with no advance notice to the public, and there were 26 separate bills filed at the time, which the plaintiffs’ attorney said at the hearing was to distract from the legislation that ultimately passed.

A unanimous, bipartisan three-judge appellate panel rejected the argument that the people have a right to instruct their representatives via a time limit for public notice of a special session.

“The right protected [the right to instruct] is one of open access to the law-making process and of open communication with one’s representatives in that process,” the opinion states. “The courts have the power to defend that right. But the decision of how quickly particular laws, on particular subjects, must be enacted is a political question reserved for another branch of government.”

Judge Richard Dietz wrote the opinion, with Judges Hunter Murphy and Allegra Collins concurring. He wrote that the judicial branch has no constitutional authority to demand from the legislative branch an explanation of why a particular bill must move quickly to  enactment, much less the authority to review whether that explanation is “valid.”

He also wrote the plaintiffs did not show they were denied the right to instruct their representatives.

“They have shown, at most, that their representatives chose not to listen to them,” the document states. “That may be a reason not to vote for those representatives in the future; it is not a constitutional violation.”

The bills that were passed out of the challenged special 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.

Bob Phillips, Executive Director of Common Cause NC, said Tuesday they are considering whether to appeal the opinion to the state Supreme Court.

“There was no justifiable reason for the special legislative session that was hatched in secrecy,” he said in a news release. “It was a deliberate effort by Republican legislative leaders to keep citizens in the dark about their plans to engage in a nakedly partisan power grab.”

Read the full appellate opinion below.



COA Common Cause Challenge (Text)

Courts & the Law, Defending Democracy, News

A “Raise the Age” breakdown by districts across the state

North Carolina officially implemented Raise the Age legislation Dec. 1, 2019 — the change in law means that most 16- and 17-year-olds no longer have to go through the adult criminal justice system and anyone under the age of 18 no longer goes to adult jail.

The Department of Public Safety’s Juvenile Justice division has been hard at work making sure law enforcement, court staff and stakeholders are updated about how the change is coming along. Part of its implementation process involves keeping close track of the numbers — how many Raise the Age complaints are made, how many juveniles are detained, and at some point, trying to figure out the rate of recidivism.

The first set of numbers associated with the new law was released earlier this month at the Juvenile Jurisdiction Advisory Committee meeting as part of an initial interim report to lawmakers about Raise the Age.

As reported by NC Policy Watch yesterday, so far, the projections the committee made have generally been close to, or a little under, what was expected. It’s a trend Deputy Secretary William Lassiter hopes holds.

The committee projected 1,683 Raise the Age complaints in the month of December – the first month of implementation – but preliminary data shows there were only 407. It was anticipated there would be 60 juveniles detained that first month, and reports show there were 78.

The numbers can and probably will change, after all, investigations are still ongoing. The committee will complete another interim report in May, though, to give lawmakers and the public a more accurate picture of how implementation is taking off.

Check out the table below for a preliminary district breakdown of Raise the Age complaints in December.

Raise the Age complaints by district

The age of juvenile jurisdiction was officially raised as of Dec. 1 to include 16- and 17-year-olds. The following table reflects preliminary data from the month of December in 2019 and shows how many Raise the Age complaints were made to each district in the state. A Raise the Age complaint is defined as complaints received on juveniles ages 16 and 17. The data was provided by the Department of Public Safety's Juvenile Justice division and is current as of Jan. 8, 2020.
District numberNumber of Raise the Age complaints
District 01<5
District 026
District 0312
District 0410
District 05<5
District 06<5
District 0710
District 08<5
District 09<5
District 1024
District 1112
District 12<5
District 13<5
District 149
District 1510
District 166
District 175
District 189
District 1916
District 206
District 215
District 229
District 235
District 24<5
District 25<5
District 2616
District 2716
District 2811
District 2911
District 30<5
Courts & the Law, Defending Democracy, News

Today: Absentee by-mail voting kicks off March primary election

ATLANTA, GA – NOVEMBER 06: Voters cast their ballots at a polling station set up at Grady High School for the mid-term elections on November 6, 2018 in Atlanta, Georgia. Georgia has a tight race to elect the state’s next Governor. (Photo by Jessica McGowan/Getty Images)

The State Board of Elections will begin mailing out absentee by-mail ballots today to voters who request them for the March primary election.

Any North Carolina voter is eligible to vote absentee by mail. Primary Election Day is March 3 and the absentee by-mail ballots must be requested from the voter’s county board of elections by 5 p.m. Tuesday, Feb. 25. Voters will select the political party nominees to appear on the Nov. 3 General Election ballot.

“By-mail absentee voting officially launches the 2020 primary election,” said State Board Executive Director Karen Brinson Bell in a news release. “Any registered voter in North Carolina may request a mail-in absentee ballot for the primary.”

To vote absentee, voters must complete a 2020 state absentee ballot request form. Voters who submit a valid request will receive a ballot from their county board of elections. The materials will include detailed instructions for how to complete and return the ballot, according to the State Board.

There are changes to the absentee voting process this year, including that an absentee request form is only valid if returned to the county board by the voter, the voter’s near relative, legal guardian or Multipartisan Assistance Team (MAT); forms cannot be emailed or faxed; and, if a voter needs help completing the request form due to blindness, disability or inability to read or write and a relative or legal guardian is not available, they can get help from another person, who must list their name and address on the form.

There are five primary ballots available to voters representing the following political parties: Constitution, Democratic, Green, Libertarian and Republican. Voters affiliated with one of those political parties must vote with that primary ballot — unaffiliated voters can choose a Republican, Democratic or Libertarian primary ballot, or a nonpartisan one if available.

One-stop, in-person early voting for the primary begins Thursday, Feb. 13 and runs through Saturday, Feb. 29. A photo-ID is not required to vote in the primary election.

Visit the State Board’s absentee voting page online for more information.

Courts & the Law, Defending Democracy, News

Flower to the people: NC law enforcement, prosecutors say not so fast

Industrial hemp in a greenhouse (Photo: NC Industrial Hemp Association)

North Carolina law enforcement officials and prosecutors are getting blunt about their position on smokable hemp: it looks like weed, it smells like weed and officers can’t tell it apart from weed, so ban it.

“Since smokable hemp and marijuana are indistinguishable by appearance and odor, without enactment of legislation clearly banning smokable hemp, we will have de facto legalization of marijuana,” states a joint press release from North Carolina Sheriffs’ Association, the NC Conference of District Attorneys, the NC Association of Chiefs of Police and the NC State Bureau of Investigation.

The organizations are urging lawmakers to pass Senate Bill 315, the North Carolina Farm Act of 2019, as soon as possible so law enforcement, prosecutors, licensed farmers and the public “clearly know what hemp substances are lawful and unlawful.” The bill was passed by the Senate in last year’s long session but stalled in the House, with most of the division focused on the smokable hemp section.

SB 315 defines smokable hemp as “harvested raw or dried hemp plant material, including hemp buds or hemp flowers, hemp cigars, and hemp cigarettes.” Hemp and marijuana both come from the cannabis plant, but hemp contains much smaller amounts of THC, the illegal psychoactive compound that causes the high from marijuana. Federal law currently defines industrial hemp as cannabis plants containing less than 0.3 percent THC by dry weight (marijuana can contain more than 30 percent).

CBD oil and similar extracts, plus rope, textiles, food products — all derived from hemp — would remain legal under SB 315.

Law enforcement already pleaded with lawmakers during last year’s session to prohibit smokable hemp. Their arguments now have not changed.

“There is no practical way for law enforcement officers to distinguish the flowering variety of hemp (i.e. smokable hemp) from marijuana because it is the same plant,” states the Tuesday news release. “The plant looks and smells the same (unburned or burned), whether it is hemp or marijuana. The only difference is the level of THC contained in the plant.”

The release points out that there is currently no validated field test which distinguishes the difference between smokable hemp and marijuana. Police narcotics detection K9s can’t tell the difference either, because they are trained to detect THC, which presents in both plants.

The North Carolina State Crime Laboratory also currently does not have the appropriate equipment or personnel necessary to determine the concentration of THC which is necessary to distinguish smokable hemp from marijuana, according to the release.

Farmers said last year during committee meetings that the concerns over the smokable plant were overblown. If they can’t grow smokable products, it would put their budding industry at an economic disadvantage compared with other states that do allow it. The North Carolina Hemp Retailers Association and the North Carolina Industrial Hemp Association could not be reached for comment Tuesday afternoon.

The controversy over smokable hemp isn’t just unfolding in North Carolina. Louisiana and Indiana banned smokable hemp sales last year, and Texas banned smokable hemp manufacturing. Kentucky banned sales of hemp cigarettes, cigars, whole hemp buds and ground flowers in 2018, according to an article on the Pew Charitable Trusts website.

Nationally, people spend more money on hemp CBD oil than on smokable flower, the Pew article states. The biggest CBD product category — tinctures — hit about $1 billion in sales in 2019, said Virginia Lee, CBD research manager at the Brightfield Group, a cannabis market research firm based in Chicago.

By contrast, an estimated $70.6 million of hemp CBD pre-roll and raw flower were sold in the United States in 2019, Lee said. But, she said, those sales are growing.

North Carolina lawmakers return Tuesday. It’s not clear yet whether House members will take SB 315 up again — if passed, the smokable hemp ban would be effective beginning June 1.