Lawmakers to take vote Tuesday to override veto of bill eliminating judicial primaries

Lawmakers will officially return Tuesday to take a vote on overriding Gov. Roy Cooper’s veto of Senate Bill 656, which would eliminate judicial primaries.

The bill was passed by both chambers last week and vetoed by Cooper early this week. Lawmakers weren’t expected to take up a veto override until January, but members have been whipping votes since the veto.

In addition to eliminating judicial primaries (which you can read more about here), the bill would make it easier for unaffiliated candidates and new political parties to appear on the general election ballot — except for legislative races. You can read more about that here.

Lawmakers are expected to return for the vote at 10 a.m. Tuesday. Both chambers are also scheduled to reconvene Monday but no votes are expected then.

Courts & the Law, News

The latest on NC’s racial gerrymandering case: Will a special master get involved in a map redraw?

A decision was not reached Thursday in a federal racial gerrymandering case about whether or not proposed remedial legislative maps would be approved, but a three-judge panel indicated it could still appoint a special master to take on the task of drawing constitutional districts.

“A court does not want to get in to policy decisions,” said Judge James Wynn, of the 4th Circuit Court of Appeals. “A court does not want to pick sides.”

He was speaking to Anita Earls, Executive Director of the Southern Coalition for Social Justice and lead attorney for the plaintiffs in North Carolina v. Covington.

“Why would we pick yours?” Wynn asked of alternative maps the plaintiffs presented to the court.
If the court appointed a special master to redraw the maps, perhaps they could stay out of the fray, he added.

Earls, who along with Edwin Speas, challenged specific districts within North Carolina lawmakers’ new proposed maps, did not object to Wynn’s line of questioning and said the only reason she would point to for adopting the plaintiffs maps was time — districts need to be implemented quickly.

“Well, we might be able to have some say in that too,” Wynn responded.

The judges also issued an order a short time after Thursday’s hearing that requires all parties in the case confer with each other and submit the names of at least three people who are qualified to serve as a special master.

The order states it is an effort to avoid delay in the event the plaintiffs’ objections are sustained. The list of names is to be filed by Wednesday and if the parties can’t agree, the judges can select a special master without their input, the order states.

To use race or not to use race?

Earls, Speas and Phil Strach, who represents the legislative defendants in the case, got into the weeds of several technical legal arguments Thursday with regard to the redistricting process.

One of the more contentious points, unsurprisingly given the nature of the case, surrounded race.
Earls and Speas contended that despite their repeated claims about not using race, two Senate districts and two House districts remained racially gerrymandered and looked strikingly similar to the districts already ruled unconstitutional.

“This is not a contest between the plaintiffs’ map and the 2017 proposed remedial maps,” Earls said.
She added that the question judges have to answer and the defendants have the burden to prove is whether or not the proposed maps cured the constitutional violations in the 2011 legislative maps. She cited multiple reasons for why they did not, including a combination of Black Voting Age Populations (BVAP), split precincts and shapes.

“To cure a racial gerrymander, the answer is not to say, ‘oh, we’re not going to use race at all,’” Earls said.
U.S. District Court Judge Thomas Schroeder asked several questions about just how the court was supposed to prescribe that the legislature apply racial data to the mapmaking process.

“In what way is a remedial map to be drawn considering race?” he asked. “I’m having trouble understanding how they’re supposed to take into account to fix a problem where they took race into account.”

Earls contended that the only way to ensure that a racial gerrymander was corrected was to use race.
Strach maintained that adopting an overall policy on race is what the legislature was criticized for, so they did not consider race at all this time around.

The judges questioned legislators’ use of Tom Hofeller to draw the new maps since he drew the unconstitutional maps in the first place. They wondered whether his knowledge of the racial makeup from districts in the first mapmaking process bled over into the new process.

Strach told the judges that Hofeller did not even have race data on his computer that he used to make the maps.

“How do we know that?” asked U.S. District Court Judge Catherine Eagles.

Strach replied, “just looking at the districts on their face.” He added that there was no evidence that race was used, and he and Wynn argued some about whether or not some of the districts in the new maps looked like the districts in the old maps.

“How do we ignore virtually what we see,” Wynn asked of the similar districts.

‘Caught in the middle’

Read more

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Covington plaintiffs: Court should make sure remedial districts comply with state, federal law

A federal three-judge panel on Thursday will hear final arguments as to whether they should enact remedial State House and Senate maps proposed and passed by GOP lawmakers.

The maps are supposed to correct unconstitutional racial gerrymanders that were found in 28 of the voting districts, but the plaintiffs in North Carolina v. Covington allege that there are still some federal and state constitutional violations.

The plaintiffs filed Tuesday a summary of their court argument asking the panel not to implement a remedial redistricting plan that violates state or federal law. Legislative defendants have argued that the court does not have to consider whether redistricting plans fully comply with the state constitution — an argument the plaintiffs say would “turn redistricting law on its head.”

The plaintiffs acknowledge in the brief that there is no precedent for the panel to consider whether the remedy is consistent with all applicable state and federal requirements but state it creates a catch-22 that safeguards voting districts from review.

“Courts reviewing a proposed remedial redistricting plan seek to carry out their responsibility to only order  into effect redistricting plans that are legal. To hold otherwise, namely that a new lawsuit must be filed to adjudicate the new violations in a remedial plan, opens the door to endless and ultimately fruitless litigation to try to obtain constitutional election districts. Moreover, should this Court approve the use of districts that otherwise violate applicable state or federal constitutional provisions, that approval will be used by the state as a bar to prevent any further challenges to the districts. If approved by this Court, the state will claim, correctly, that they are under a federal court order to use the 2016 legislative districts. Such a catch-22 insulates the districts from review and permits the defendants to violate the law with impunity at the remedial stage, but it hardly constitutes justice and it certainly is not what the law requires.”

You can read the plaintiffs full argument here.

The hearing Thursday starts at 10 a.m. at the U.S. District Court for the Middle District of North Carolina, located at 324 W Market Street in Greensboro. Members of the public who wish to attend the hearing must present a photo identification to get in. Electronics are not permitted in the courtroom.

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Governor signs bill with restrictions on AG despite conflicting Constitutional provision

The North Carolina Constitution delegates a specific power to the Attorney General with regard to district attorneys and appellate work, but the General Assembly passed a bill last week to diminish that power and Gov. Roy Cooper signed it into law today.

Senate Bill 582, a technical corrections bill, contains a lot of different provisions that accomplish numerous goals, but the one that targets Attorney General Josh Stein clearly contradicts Article IV, Section 18 of the state constitution.

Neither Cooper’s nor Stein’s offices have responded to requests about the conflicting provision. Legislative leaders’ offices, Senate President Pro Tem Phil Berger and House Speaker Tim Moore, also have not responded to a request about the constitutional divergence.

Almost all Democratic lawmakers in both chambers and some Republican lawmakers voted against passing SB582.

Cooper released the following statement about his signature on the measure:

“While I strongly oppose the continued partisan attacks on the office of the Attorney General, this legislation does include some important provisions. In particular, it lifts the sunset on the film grant program. The film industry creates jobs in North Carolina and we need to do more to bring certainty for the companies that come to our state. In addition, the legislation provides at least a temporary fix to the school principal pay problem. We need a permanent fix to attract and retain great principals.

“Unfortunately, the legislature failed to fix the unfunded class size mandate that will force local schools to make major cuts. This needs to be done immediately.”

Cooper also announced today that he vetoed SB656, which eliminates judicial election primaries next year and changes the definition of a political party. GOP lawmakers have said the measure will give them more time to redistrict judicial voting maps and it is thought to be the first step toward a “merit-selection” process.

“This legislation abolishes a scheduled election and takes away the right of the people to vote for the judges of their choice,” Cooper stated in an emailed news release. “It is the first step toward a constitutional amendment that will rig the system so that the legislature picks everybody’s judges in every district instead of letting the people vote for the judges they want. If the legislature doesn’t like the fact that judges are ruling many of their laws unconstitutional, they should change their ways instead of their judges.”

Courts & the Law, News

BREAKING: State constitutional provision appears to conflict with legislation targeting AG

It appears when North Carolina Republicans passed a technical corrections bill restricting Attorney General Josh Stein’s powers, they may have forgotten about a provision of the state constitution that delegates to him those very powers.

Senate Bill 582, among many other things, dictates that Stein’s office handle all criminal appeals without any power to delegate that work to district attorneys or other entities.

The exact language: “The Attorney General shall not delegate to the district attorney, or any other entity, the duty to represent the State in criminal and juvenile appeals.”

Article IV, Section 18 of the North Carolina Constitution, however, directly contradicts that statute with very clear language.

“The District Attorney shall advise the officers of justice in his district, be responsible for the prosecution on behalf of the State of all criminal actions in the Superior Courts of his district, perform such duties related to appeals therefrom as the Attorney General may require, and perform such other duties as the General Assembly may prescribe.”

Two people who are considered to be state constitutional experts said Friday they were unaware of the provision until it was pointed out, but that on its face, it very clearly delegates power to Stein with regard to how appeals are handled.

“It looks to me pretty straightforward,” said Gerry Cohen, former special counsel to the state legislature. “He has a power directly granted to him under the Constitution.

Michael Crowell, an attorney in Chapel Hill, said there has always been litigation over whether the General Assembly has the power to change the Attorney General’s duties, but the provision in Article IV, Sec. 18 makes this situation different because it is a power directly delegated by the Constitution.

“It doesn’t seem that there’s any way around that,” Crowell said. “I mean, how do you argue it doesn’t mean what it says it means?”

The General Assembly slashed Stein’s Department of Justice budget by $10 million without any public notice that it was coming. In acquiescing to the budget cut, Stein eliminated 45 DOJ positions and shifted some criminal appeals to district attorneys offices across the state. He still has $3 million to cut.

SB582 was legislative leaders’ response to Stein’s delegation of work to comply with their budget cut. Republicans on the House floor Thursday said they received complaints from some district attorneys about the shift and said that Stein should be able to handle its workload with the resources it has.

According to the legislation they created, district attorneys could step in to handle criminal appeals if they want to but Stein could not delegate the work to them on his own.

House Democrats, who also were not aware of the constitutional provision until Friday, argued that Stein already has had to cut too many resources and that SB582 was drafted and passed out of meanness and spite.

The bill passed both chambers, with a couple Republicans voting against it. It is awaiting Gov. Roy Cooper’s signature. Cooper’s Office said he is currently reviewing the legislation.

House Minority Leader Darren Jackson agreed that the constitutional provision seemed very clear.

“Having read that, I think that’s a pretty strong argument that what we’ve done is essentially unconstitutional,” he said.

Jackson, who voted against SB582, said he thinks the General Assembly should restore the $10 million budget cut to Stein’s office. He added that he’s hopeful since lawmakers have to stick around for 10 more days (the special session is not technically scheduled to end until the 17th), they will be able to fix what they’ve done, and maybe also work on addressing class size issues.

Senate Minority Leader Dan Blue said Friday he saw the provision delegating Stein’s power the day before but the attitude of some of his colleagues is that they don’t care about the constitution.

“Maybe it made them feel better, but it is unenforceable,” he added of SB582. “This is as clear and straightforward as you can get.”

The Attorney General’s office and Senate President Pro Tem Phil Berger and House Speaker Tim Moore’s offices were not immediately available to comment.

This is a developing story and will be updated as responses are made.