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Crowd outside the federal courthouse in Winston-Salem

Crowd outside the federal courthouse in Winston-Salem

The battle over sweeping election law changes adopted in North Carolina in 2013 opened on two fronts yesterday.

In a packed courtroom inside the federal courthouse in Winston-Salem, attorneys for both the challengers and the state laid out the case they planned to present to U.S. District Judge Thomas Schroeder over the next several weeks.

State lawmakers knew exactly what they were doing when they stripped away same day registration, cut early voting days and eliminated the counting of out-of-precinct provisional ballots — provisions used widely by minority voters — Penda D. Hair, an attorney for the North Carolina NAACP, said in her opening statement.

“They were voter suppressors in search of a pretext,” she told the judge.

The state has argued throughout the case that the 2013 changes were neutral on their face, burdening all voters – not just African-American or Latino voters – and that the state’s election laws now resembled those in other states, where same day registration and early voting don’t exist.

But Hair dismissed that argument, saying that other states do not have the same racially-charged history of voter suppression as does North Carolina.

“Poll taxes were neutral on their face,” Hair said. “Literacy tests were neutral on their face. The law teaches it is the impact that matters – an impact that is linked to social and historical conditions – not whether a law explicitly says African Americans or Latinos are not allowed to vote.”

Outside, the trial over the voting changes in the court of public opinion also waged on.

Speakers from the state NAACP held an early morning press conference while their supporters and others from voting rights advocacy groups chanted what’s become the mantra for the Moral Monday movement: “Forward together! Not one step back.”

Ricky Diaz for the NCGOP

Ricky Diaz for the NCGOP

In the opposite corner behind a podium bearing the NCGOP logo, state Republican Party spokesman Ricky Diaz told the media that the election law changes were simply common sense provisions meant to ensure the integrity of the vote.

The parties have identified nearly 100 voters, experts and state officials as possible witnesses in the case, and once opening arguments ended, the challengers began calling them to the stand.

Durham resident Gwendolyn Farrington told the court that she tried to vote near her 6 a.m.-to-6 p.m. job, since she couldn’t get to her own precinct, but was told that she had to cast a provisional ballot — which she later learned would not be counted.

Rev. Dr. William J. Barber II, president of the state NAACP, also took the stand yesterday afternoon in advance of a planned Moral Monday voting rights march held at 5 p.m. in Winston-Salem.

“In North Carolina, a literacy test is still on the books,” Barber said. “The Voting Rights Act overruled it, but it remains there as a symbol.”

“In this country we should be doing everything humanly possible to ensure all people can vote,” he added.

Trial will continue day-to-day at the federal courthouse at 251 N. Main Street, Winston-Salem, and is expected to last at least two weeks.   Read here for more on what to expect during the proceedings.

News
Credit: Governing magazine.

Credit: Governing magazine.

The Florida Supreme Court ruled today that congressional districts redrawn by the Republican-controlled legislature violated a voter-approved constitutional amendment requiring nonpartisan map-drawing, and sent the voting maps back for a do-over.

It’s an important decision for Florida voters, who’d made clear their distaste of politicized redistricting by approving the amendment.

North Carolina, of course, has no such prohibition on partisan gerrymandering, and lawmakers in 2011 redrew congressional districts that left the state — which had a House vote that was 51 percent Democratic, 49 percent Republican — with a delegation of four Democrats and nine Republicans.

The Florida decision has little bearing on the redistricting process as it stands right now in North Carolina, but  it does offer lawmakers and voters lessons on the transparency that should underlie the process.

The Florida courts in League of Women Voters v. Detzner had the benefit of emails and other communications between lawmakers, staff and consultants which established that lawmakers had acted with improper intent in drawing maps for partisan advantage.

In the redistricting case pending here, the North Carolina Supreme Court denied requests for the disclosure of such communications — sent indirectly to involved parties through attorneys for the lawmakers — citing privilege.

And the Florida courts emphasized the need for transparency at all phases of the redistricting process, with the Supreme Court demanding as much in its order:

First, in order to avoid the problems apparent in this case as a result of many critical decisions on where to draw the lines having been made outside of public view, we encourage the Legislature to conduct all meetings in which it makes decisions on the new map in public and to record any non-public meetings for preservation.

Second, the Legislature should provide a mechanism for the challengers and others to submit alternative maps and any testimony regarding those maps for consideration and should allow debate on the merits of the alternative maps. The Legislature should also offer an opportunity for citizens to review and offer feedback regarding any proposed legislative map before the map is finalized.

Third, the Legislature should preserve all e-mails and documents related to the redrawing of the map. In order to avoid additional, protracted discovery and litigation, the Legislature should also provide a copy of those documents to the challengers upon proper request.

Finally, we encourage the Legislature to publicly document the justifications for its chosen configurations. That will assist this Court in fulfilling its own solemn obligation to ensure compliance with the Florida Constitution in this unique context, where the trial court found the Legislature to have violated the constitutional standards during the 2012 redistricting process.

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News

UNCAttorneys for the University of North Carolina have asked U.S. District Judge Loretta C. Biggs in Winston-Salem to stay proceedings in the case challenging its admissions policies pending review by the U.S. Supreme Court of an affirmative action case out of Texas, Fisher v. University of Texas at Austin.

How the high court rules next term in Fisher will have some bearing on the case filed here in November, Students for Fair Admissions v. UNC, alleging similar flaws in the university’s admission policies. (A separate lawsuit was filed in Massachusetts federal court against Harvard by the same group on the same day.)

As SCOTUSblog’s Lyle Denniston described the Harvard and UNC lawsuits:

The basic thrust of the new lawsuits is that Harvard and the flagship university in North Carolina are using admissions programs that cannot satisfy the tough constitutional test for judging race-based policy — “strict scrutiny.”  But their broader theme is that the Supreme Court’s affirmative action efforts beginning with the Bakke ruling have failed to end racial bias in admissions programs, so it is now time to overrule Bakke and at least one other decision.

In the lawsuits, filed under the name “Students for Fair Admissions Inc.,” attorneys for plaintiffs  selected after a nationwide search by backers of Project for Fair Representation argue that diversity at the schools can be achieved by race-neutral alternatives and that public colleges and others receiving federal funds should be ordered to end the use of race in admissions altogether.

As counsel for UNC pointed out in papers filed yesterday:

The primary issue before the Supreme Court in Fisher II—whether the Fifth Circuit properly concluded that the University of Texas at Austin’s use of racial preferences in its undergraduate admissions program complies with the Supreme Court’s precedents—is the central issue in this case brought by Plaintiff Students for Fair Admissions, Inc. challenging the University’s undergraduate admissions policy. Critical questions in Fisher II will be whether UT-Austin’s admission policy is narrowly tailored to achieve the educational benefits of diversity, what evidence UT-Austin must present to prove that proposition, and how a court must apply strict scrutiny to evaluate whether UT-Austin has met its burden. Because Fisher II presents the Supreme Court with an opportunity to clarify further the law governing how public universities may consider race in the admissions process, it is certain to affect the standards that govern this litigation.

The same attorneys representing Fisher at the Supreme Court are representing the students in both the UNC and Harvard cases.

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News

Voter-ID-signThe parties challenging the voter ID provisions of the state’s 2013 election law changes in state court have asked the judge to put the case on hold until after the 2016 presidential primary, saying that only then will the merits of the recently adopted “reasonable impediment” process for voters lacking a photo ID be established.

The request comes in response to the state’s motion to dismiss the case in light of those new provisions which they say moot the case.

Under the new law, a person showing up at the polls without an acceptable form of photo ID could sign a sworn statement indicating the reasons for lacking such an ID and then cast a provisional ballot.

In papers filed with the court last week, the challengers cite the state’s poor implementation of the voter ID law during the November 2014 election and the resulting confusion among voters — many of whom ultimately did not have their votes counted — and argue that the state has shown little interest in improving that implementation going forward.

No updates have yet been made to the State Board of Elections showing the changes, no material detailing the changes have been published and no news of training for official and poll workers has been announced.

Moreover, they say, whether the new changes will actually go into effect is subject to question.

Rep. Michael Speciale, for example, told the Beaufort Observer in late June that he’d be introducing a bill to repeal the “reasonable impediment” provisions.

“You may rest assured that I fully support requiring a photo ID and once this DMV mess is straightened out I will, if no one else does, introduce a bill to scrap the ‘impediment’ exception,” Speciale said, referring to allegations that DMV was charging voters for the “free” voter ID.

In addition to asking for a stay of the state case, the groups and individuals opposing the law are asking the court to allow them to amend their complaint to assert an “as applied” constitutional claim, challenging the state’s implementation of and public education about the new voter ID law.

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News

In an order released today, the U.S. Supreme Court vacated the Fourth Circuit’s decision in Berger v. ACLU holding that the state’s “Choose Life” license plate constituted unconstitutional viewpoint discrimination, and sent the case back to the appeals court for a ruling consistent with the high court’s recent decision in Walker v. Sons of Confederate Veterans, Texas.

In Walker the state refused to allow plates displaying the confederate flag, finding them offensive to some residents. The Sons of Confederate Veterans sued and the U.S. Court of Appeals for the Fifth Circuit ultimately ruled in their favor, finding that since the specialty plate messages were a form of private speech, the state agency had engaged in unlawful viewpoint discrimination.

The challengers in North Carolina’s license plate case made a similar argument, agreeing that the specialty plates were private speech and contending that by offering a “Choose Life” plate but not a similar pro-choice one the state had likewise engaged in viewpoint discrimination.

U.S. District Judge James C. Fox agreed, ruling in December 2012 that the state’s offering of a Choose Life license plate in the absence of a pro-choice plate violated the First Amendment, and the Fourth Circuit later upheld that ruling.

But in June, the nation’s highest court ruled in Walker that specialty plates, like other state-issued license plates, conveyed government speech. Given that, states were free to pick and choose the message.

Now it will be left to the appeals court to decide whether to consider additional arguments from the parties in the “Choose Life” case, or simply enter an order consistent with the Supreme Court’s ruling in Walker.

“As the Supreme Court made clear in Walker, the attempt to censor a message like North Carolina’s ‘Choose Life’ message is inconsistent with both the purpose of the First Amendment and the Supreme Court’s government speech precedents,” Scott Gaylor, lead counsel for the state in the case said in a statement.

But Chris Brook, the attorney for parties challenging the “Choose Life” plates, hoped that the state would reconsider whether it wanted to be viewed as suppressing varying viewpoints — court decisions aside.

At the time the plates were adopted by the state, they were intended to convey the message of Choose Life America, Inc., an organization whose mission is to promote the sale of “Choose Life” license plates throughout the country so that proceeds can be used to “encourage adoption as a positive choice for women with unplanned pregnancies.”

Drivers buying the “Choose Life” plate here would pay $25.00 per year– in addition to the regular registration fee — $15.00 of which would go to support the Carolina Pregnancy Care Fellowship.

“This case has always been about more than specialty license plates; it asks whether the government should be allowed to provide a platform to one side of a controversial issue while silencing the other,” Brook said in an email. “The Court’s decision could allow states to censor private speech and discriminate against citizens who hold views that are different from the government’s. The General Assembly should do the right thing and allow citizens on both sides of the debate to purchase specialty plates supporting their views.”

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