Voter-ID-signParties in the federal voting rights cases are back in court this morning to discuss what to do about the pending voter ID claims that U.S. District Judge Thomas Schroeder had carved out of the July trial, in light of a last minute amendment to the voting law adopted in late June.

That amendment allows voters lacking an acceptable photo ID to still cast a ballot after signing an affidavit indicating that they had a reasonable impediment to obtaining one.

The state has argued that the change mooted any challenge to voter ID, citing similar provisions elsewhere that had been upheld in court, and asked Schroeder to dismiss the ID claims.

But the law’s challengers argued that even with the amendment the right to vote is still burdened, in part because of uncertainty over how election officials statewide will implement the reasonable impediment provision — particularly in light of a possible March 2016 election. They pointed to a lack of any plan to educate poll workers and other election officials on how the amendment will work and also to lawmaker statements indicating an intent to repeal the reasonable impediment provision as soon as possible.

The parties made the same arguments in the state court voter ID case in August, with the judge there in September rejecting the state’s arguments on mootness and ordering the case to trial.

In federal court filings, the groups and citizens challenging Voter ID, along with the Justice Department, advised Schroeder that they believed a resolution of those claims could be reached between the parties without a need for his ruling on the mootness issue.

Despite losing on their mootness argument in Superior Court, though, the state has rejected any settlement, pushing the federal judge instead to rule on their motion to dismiss ahead of the March 2016 primary elections.

As the challengers advised Schroeder last week:

Plaintiffs have provided Defendants with a written, detailed proposal that could form the basis of discussions to resolve the voter photo ID claims. In response, Defendants have declined to discuss settlement further while their motion to dismiss the voter photo ID claims on mootness grounds is pending. Although Plaintiffs believe that further discussions could be fruitful, it appears that Defendants will not move forward if this Court does not rule on their pending motion to dismiss.

The parties are already awaiting a decision on the remaining federal claims tried in July.


Coal ash clean upIn a decision released late yesterday, U.S. District Judge Loretta C. Biggs denied Duke Energy’s request for a dismissal of the case filed by the Yadkin Riverkeeper and the Waterkeeper Alliance, seeking coal ash cleanup at the company’s Buck plant on the Yadkin River.

“The Court is unable to find that DENR was trying diligently or that its state enforcement action was calculated, in good faith, to require compliance with the [Clean Water] Act,” Biggs wrote in her decision.

“Accordingly, DENR’s state enforcement action does not bar the Riverkeepers from pursuing their Seep Claim and Hydrological Connection Claim in this citizen suit.”

Biggs added that agreements between DENR (now DEQ) and Duke Energy to stop investigation and enforcement in the pending state action evidenced a lack of due diligence on the part of the agency.

“DENR’s prosecution does not inspire confidence that its state court action will move expeditiously to a final resolution,” she wrote.

The judge also refused to stay the case, finding that further delay “has the potential to substantially harm the environment and the individuals who live near the Buck plant and draw their daily supply of water from allegedly contaminated wells.”

Instead, the groups will be able to proceed with all claims, including those related to unlawful coal ash seepage, prohibited leaks into the groundwater and river, and dam safety violations.

“This court ruling upholds citizens’ right to enforce the law against polluters like Duke Energy to protect clean water when DENR/DEQ fails to do so,” Frank Holleman, senior attorney at the Southern Environmental Law Center representing the Riverkeepers, said in a statement.  “The court found that DENR/DEQ had not been diligently pursuing enforcement against Duke Energy’s still leaking coal ash. Instead, DENR/DEQ has been diligently protecting Duke Energy.”




justice scales.jpgLamont McKoy has been in jail nearly 25 years, serving a life term for a murder he just might not have committed.

Evidence contrary to his conviction has long existed, as Andrew Cohen writes here for the Marshall Project,  but no one — not state attorneys and not the courts — wants to give him the opportunity to clear his name.

Nothing about McKoy’s case has been routine. On the night of January 25, 1990, prosecutors alleged that McKoy, as part of drug deal gone bad, shot Hailey in Haymount Hill, a Fayetteville neighborhood, while Hailey was driving away. Hailey’s vehicle, prosecutors claimed, traveled a mile or so before he drove off the road, hit a tree, and bled to death.

But one key piece of evidence, never introduced at trial, was the possibility that police were on scene when and where the murder allegedly took place. At the time of Hailey’s demise, new evidence suggests, the police were at Haymount Hill in response to a previous, unrelated report of gunshots. Those responding officers, who stayed at the location for several hours, never reported hearing any subsequent shots, much less seeing or hearing McKoy murder Hailey. Nor did any witnesses report that additional gunshots were fired in that neighborhood that night. The following morning, police found Hailey’s body about a mile away from Haymount Hill.

Jurors who convicted McKoy never heard about the possibility that police officers were already on the scene when the murder happened because, as his current attorney contends, police and prosecutors never disclosed that information at the time of trial. Nor did the officers involved testify.

Add to that these facts:  The primary witness against McKoy later recanted.  No physical evidence linked McKoy to the victim. The gun used was a .357, but McKoy only carried a .22.

And federal prosecutors argued four years later in a different case that another man, not McKoy, committed the murder.

According to Cohen, state attorneys continue to insist that McKoy confessed, and that’s enough to move on — plus procedural rules now bar him from presenting his case. The three different state court judges who handled his case over the years allowed him to press claims of ineffective assistance of counsel (ruling against him), but not on the substance of the evidence against him.  And yesterday the state Court of Appeals rejected his request for that relief without explanation.

Cohen adds:

Not only have there been no evidentiary hearings to explore the core questions of this case, the state judges haven’t even allowed McKoy’s current attorneys to get more access to evidence they say would further bolster their case (and could help them prove prosecutorial or police misconduct). The police have consistently said that all evidence required to be turned over to the defense was turned over to the defense. Prosecutors have long said they consider the matter closed. And so, evidently, have the courts of North Carolina.



Some interesting rulings from courts around the country came down on Monday addressing issues that may well land at the U.S. Supreme Court in the near future.

Gun control:  A federal appeals court in New York largely upheld gun control laws passed in New York and Connecticut after the 2012 Newton shootings, finding that there was a substantial relationship between bans on the possession of semi-automatic weapons and large-capacity magazines and the states’ compelling interests in controlling crime.

Writing for the 2d U.S. Circuit Court of Appeals,  Judge Jose A. Cabranes said:

“When used, these weapons tend to result in more numerous wounds, more serious wounds, and more victims. These weapons are disproportionately used in crime, and particularly in criminal mass shootings. They are also disproportionately used to kill law enforcement officers.”

Read the full opinion here.

Defunding Planned Parenthood: While lawmakers in Texas cut state Medicaid funding for Planned Parenthood, a federal district court judge in Louisiana temporarily blocked lawmakers there from doing the same, finding that Planned Parenthood could likely succeed on its claims that the cuts targeted medical services provided to thousands of low-income women and had little to do with the competence of the group’s clinics there.

Calling out the cuts as politically-motivated,  U.S. District Judge John deGravelles wrote:

The uncontradicted evidence in the record at this time is that PPGC does not perform abortions in Louisiana, is not involved in the sale of fetal tissue and none of the conduct in question occurred at the PPGC’s two Louisiana facilities. Based on the record before it, it appears likely that Plaintiff will be able to prove that the attempted termination against it are motived and driven, at least in large part, by reasons unrelated to its competence and unique to it.

Read that decision here, and more on the case from Mother Jones here.

Campaign finance:  The U.S. Supreme Court refused to review a decision out of the 9th U.S. Circuit Court of Appeals requiring the group Montanans for Community Development to disclose its donors and spending while it attempts to have state laws that prevent outside groups from coordinating with candidates overturned.

The SCOTUS order is here.


20150603_Rowan_County_NC_Seal2-277x275By a 3-2 vote, the State Board of Elections has removed Rowan County Board of Elections Chair Malcolm “Mac” Butner.

Butner came under fire after complaints about several racist and other inappropriate messages he had posted on Facebook and Twitter. Examples of those complaints  and the offensive media posts are set forth in the state board’s notice of hearing, here.

They include posts, such as the one below, which the state board identified with this proviso:  “The posts appearing in Appendix B were copied from various online outlets and are attributed to Butner. SBE Staff is not able to independently verify whether all posts are in fact original.”

Butner 2

The vote came after a hearing this morning in which Butner did not appear or otherwise participate, citing health issues — although as some board members noted, he was given the opportunity to appear by telephone and elected not to do that.

State Board members Rhonda K. Amoroso and James Baker voted against the removal, saying the inappropriate conduct occurred before Butner became chair and noting that by all accounts he had conducted board business in a fair manner.

But state board chair Joshua B. Howard and members Joshua D. Malcolm and Maja Kricker said that Butner’s behavior, and his failure to refute any of the claims, justified his removal both for violations of the state board’s social media policy and for creating a perception of distrust in the county board’s mission.

Said Howard:

These are remarks I would not tolerate in my home, I wouldn’t abide them in my workplace, and I sure as heck am not going to leave a person who says these things on a county board of elections — not on my watch. I’m persuaded that the offensive posts, just the nature of them,  and the intemperate things he has said before going on the board are grounds for removal.  If the public doesn’t have confidence in the inclusiveness of a county chair then that very much impedes the mission of the agency. The job of the county chair is to preserve public confidence in the administration of elections. No one who reads these things could feel that he’s qualified to do that. He is the public face of the administration of elections in Rowan County, and we’re about to change that face.