News

VoteIn an order issued today, the state Supreme Court has expedited its reconsideration of the redistricting case, Dickson v. Rucho, in light of the U.S. Supreme Court’s April 20 remand.

That order from the nation’s highest court came on the heels of its decision in a similar case, Alabama Legislative Black Caucus v. Alabama, in which the justices ruled 5-4 that the Voting Rights Act did not require states to use mechanical formulas or quotas when drawing voting lines.

In the North Carolina case, briefing is now scheduled through July with oral argument to take place on August 31, 2015.

In today’s order, the state justices limited briefing and argument to “the applicability of” the ruling in the Alabama case to Dickson, leaving open the question of finality of any ruling following argument in August.  The court could conceivably send the case back to the three-judge redistricting panel for further findings.

The order is here:

Redistricting order

 

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News

FrackingAdd the Mining & Energy Commission to the list of commissions whose recently expanded regulatory authority now serves as fodder for a lawsuit.

As IndyWeek reports here, Clean Water for NC & residents of three separate counties filed a lawsuit on Friday challenging the regulatory authority over fracking that state lawmakers took away from local governments:

The complaint, which was filed Friday in Wake County Superior Court, comes from Clean Water for N.C., a group that has lobbied to ban fracking in North Carolina for several years. The legal challenge contends that the N.C. General Assembly violated the state constitution in giving the appointed N.C. Mining and Energy Commission the authority to pre-empt local ordinances in crafting fracking regulations.

A number of local government bodies passed resolutions or ordinances opposing drilling within their counties, but state law—as recommended by the mining commission—holds that no local ordinances would be able to block fracking.

Read a copy of the Clean Water for NC complaint here.

News

Supreme courtIn an opinion with implications for those states where judges are elected, the U.S. Supreme Court ruled today in a plurality opinion that states can ban direct solicitations.

In the case out of Florida, Williams-Yulee v. Florida State Bar, lawyer Lanell Williams-Yulee landed in hot water with the state bar after, in connection with her candidacy for a county judgeship, she sent out a mass mailing with her signature asking for contributions.

Williams-Yulee challenged a state law banning direct requests for money by judges, saying it violated her First Amendment freedom of speech, but the Florida Supreme Court disagreed, saying that the prohibition was “one of a constellation of provisions designed to ensure that judges engaged in campaign activities are able to maintain their status as fair and impartial arbiters of the law.”

Of the 39 states that have some form of elections for judges, 30 prohibit judges from personally soliciting campaign contributions.

That’s not the case in North Carolina — one of the nine states which allow judicial candidates to directly ask for campaign contributions from attorneys and law firms as well as other members of the public.

That’s been the law here since 2003, when according to a report by the Brennan Center for Justice, the justices of the Supreme Court radically revised the rules of judicial conduct, without any input from the public:

North Carolina not only turned the political activity regulations on their heads—changing the basic canon from “A judge should refrain from political activity inappropriate to his judicial office” to the current “A judge may engage in political activity consistent with his status as a public official”—but also eliminated the Pledge or Promise Clause and the ban on candidates’ personally soliciting campaign contributions.

(The Pledge or Promise Clause prohibits judicial candidates from making “pledges or promises of conduct in office other than the faithful and impartial performances of the duties of the office.”)

The current judicial code of conduct allows judges to speak at political party events, personally solicit contributions, identify themselves as affiliated with a particular party and otherwise engage in activities “consistent with the judge’s status as a public official.”

Read more about the implications of the Williams-Yulee decision for North Carolina here.

News

Start your morning with this excellent essay by Slate’s Dahlia Lithwick about instances where the wheels fell off the gay marriage opposition bus yesterday, including most notably the failure of attorneys for that side to reach the critical swing vote, Justice Anthony Kennedy, where he lives — in the world of dignity.

As Lithwick points out, Kennedy has been all about dignity — she calls him the “dignity-whisperer” — in court decisions he’s authored touching upon the institution of marriage.

So when counsel for Michigan defending that state’s ban paints marriage into some sort of biological-bonding corner, he gets Kennedy’s goat:

[T]here is a rather extraordinary moment Tuesday morning . . . when Kennedy finds himself in an argument with John Bursch, Michigan’s special assistant attorney general, about whether marriage is a dignity-conferring enterprise, or not. Bursch, defending his state’s ban on same-sex marriage, is explaining that the purpose of marriage is not to confer dignity but to keep parents bonded to their biological children.

Justice Kennedy—who opened argument Tuesday morning with the observation that this whole case is about an institution whose definition has gone unchanged for millennia—looks rather shocked. The author of the majority decision outlawing sodomy bans in Lawrence v. Texas (“Adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons”) and the decision striking down the Defense of Marriage Act in United States v. Windsor (“It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage”) did not want to hear this. Indeed, it seems like Kennedy wanted it to be perfectly clear that he is the guy who gets to say that if marriage is nothing else, it is a dignity-stamper.

The tussle between Kennedy and Bursch doesn’t end there, with the attorney circling back to the dignity point later in the argument:

Bursch circles back to say, again, “marriage was never intended to be dignity bestowing.” At which point Kennedy almost bursts a pipe: “I don’t understand that [marriage] is not dignity bestowing. I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage. … It’s dignity bestowing, and these parties say they want to have that same ennoblement.”

Bursch replies that the “state is trying to figure out how do we link together these kids with their biological moms and dads when possible, the glue are benefits and burdens, but not necessarily dignity.” Anthony “Dignity” Kennedy can’t even believe it: “Well, I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.” It seems to me that nobody puts Dignity Kennedy in the corner. Not even Michigan.

Read more on the argument yesterday here, and what the case might mean for North Carolina here.

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News

In papers filed with the state Supreme Court yesterday, lawmakers told the justices there was no reason to expedite proceedings in the North Carolina redistricting case, Dickson v. Rucho, sent back here last week by the U.S. Supreme Court — at least not within the time frame that challengers to the state’s redistricting plan want.

That order by the nation’s highest court came on the heels of its earlier decision in a similar case out of Alabama, in which the justices held that the Voting Rights Act required lawmakers to assess whether minorities had the ability to elect a preferred candidate of choice and to draw voting lines in order to facilitate that goal — not, as Alabama had done, to achieve specific numerical minority percentages.

North Carolina lawmakers operated under the same mistaken premise when designing the state’s 2011 plan, according to challengers.

Here’s Eddie Speas, one of the attorneys representing those challengers:

One of the things we think is important in the Alabama case is that the Alabama legislature engaged in a mechanical process when drawing districts that is inconsistent with the sensitive, strict scrutiny and narrow tailoring that the Supreme Court said has to happen in these redistricting plans.

And North Carolina lawmakers were guilty of this sin twice: First they adopted the rule that they would draw majority – minority districts in numbers proportional to the state’s black population. And then they drew each of those districts to have at least 50 percent total black voting age population.

Just after the Supreme Court order sending the case back, plan challengers asked the state’s high court to expedite the case — hoping to get a final resolution and any necessary redistricting changes in place in time for elections in 2016.

Lawmakers opposed that request yesterday, arguing that they needed time to fully brief the arguments they managed already to outline for the court and citing, ironically, scheduling conflicts they had with trial dates in the federal voter suppression cases.

(Several of the attorneys for the plan’s challengers are also involved in the federal cases.)

It’s been rare in recent history for the state Supreme Court to hear cases during the summer months.

However, with Chief Justice Mark Martin at the helm, the court has begun taking certain cases directly (bypassing the usual appeal process) and setting quick argument dates.

In October 2014, the court took up five cases for expedited review, including the challenge to the private school voucher program.

The court has also expedited argument in the appeal of the Governor’s lawsuit against the legislative leaders concerning commission appointments, setting that down for June 30.

To read the redistricting plan challengers’ request for expedited review, click here.

To read the lawmakers’ opposition, click here.

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