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Perhaps you remember this saga.

Near the end of 2005, U.S. District Judge Malcolm Howard stepped down from his seat on the federal bench in eastern North Carolina, moving to senior status and creating an opening for a new judge there.

Years passed and the state’s U.S. senators couldn’t seem to reach an agreement on a nominee for that slot to recommend to the President. In the meantime, Howard — along with two other judges on senior status, James C. Fox, now 86 and W. Earl Britt, 83 — shared his workload.

Then in 2009 the senators threw their support behind federal prosecutor Jennifer May-Parker, chief of the Appellate Division of the U.S. Attorney’s Office for the Eastern District in North Carolina, to fill Howard’s slot — one of over 80 district court seats then vacant in the federal judiciary.

If confirmed, May-Parker would have become the first black female federal judge in the history of the Eastern District.

But once President Obama nominated her in 2013, U.S. Sen. Richard Burr — who for years took his senate colleagues to task for holding up judicial nominations — inexplicably blocked the nomination by refusing to submit the “blue slip” evidencing his support, a critical step to moving a judicial candidate to a senate hearing.

May-Parker’s nomination has since lapsed, and Howard’s seat remains vacant.

Plenty of seats elsewhere have been filled, as have new vacancies that have arisen.

The number of district court openings deemed a “judicial emergency” — determined in part by how long a seat has been vacant — is now 32. All of those seats have been open for only a year or two — except for Howard’s.

The chart below shows just how far an outlier North Carolina has become:

nccourts-judicial-emergencies-2016-01-05 (2)

For more on the ongoing judicial vacancy in the Eastern District, read here, here and here.

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News

In orders issued today, the state Supreme Court sent two Racial Justice Act cases back to the trial court for further review.

In State v. Robinson, the justices held that the trial court erred when it failed to give the state additional time to address a Michigan State statistical study submitted on behalf of Marcus Robinson.

Per the order:

Respondent’s study concerned the exercise of peremptory challenges in capital cases by prosecutors in Cumberland County, the former Second Judicial Division, and the State of North Carolina between 1990 and 2010. The breadth of respondent’s study placed petitioner in the position of defending the peremptory challenges that the State of North Carolina had exercised in capital prosecutions over a twenty-year period. Petitioner had very limited time, however, between the delivery of respondent’s study and the hearing date. Continuing this matter to give petitioner more time would have done no harm to respondent, whose remedy under the Act was a life sentence without the possibility of parole. Under these exceptional circumstances, fundamental fairness required that petitioner have an adequate opportunity to prepare for this unusual and complex proceeding.

The justices also today vacated the trial court’s decision in State v. Augustine — the second Racial Justice Act challenge  saying that the judge’s refusal to grant the state more time to respond to the Michigan State study “infected” his ruling in this subsequent case.

The Racial Justice Act, enacted in 2009, allowed death row inmates to seek a reduction in their sentence to life without parole upon a showing — through statistical evidence and otherwise — that race was a significant factor in the imposition of their sentences.

At the time, a review of state Supreme Court decisions showed that the court rarely if ever sustained a challenge to the racial composition of a jury under Batson, and death penalty opponents hailed the passage of the Act as a necessary safeguard from continued racial bias in the judicial system.

From day one, though, prosecutors and other proponents set out to overturn the Act. In 2011, the state senate garnered enough votes for repeal but could not override Gov. Bev Perdue’s veto.

By 2012, the legislature managed by amendment to rein in significant provisions of the RJA, limiting the scope of statistical evidence upon which inmates could rely to prove their claims.

Most of the state’s 152 death row inmates filed motions for appropriate relief, seeking to have their sentences commuted under the Act, but only a few saw their cases move to trial and decision.

Marcus Robinson became the first to have his sentence reduced in April 2012, when Cumberland County Senior Resident Superior Court Judge Gregory Weeks, in a 167-page order, found that race was a significant factor in the imposition of the death penalty statewide as well as in Robinson’s own case.

On the heels of Robinson, death row inmates Tilmon Golphin, Christina Walters and Quintel Augustine asked Weeks to reduce their respective sentences.

But shortly before hearings began in July 2012 in those cases, the legislature amended the RJA to require more than just statistical evidence to prove a claim of racial bias.

The inmates sought to do that in the hearings that followed, and in an opinion sharply critical of the prosecution not only for its conduct during the underlying murder cases but also for continuing to delay RJA proceedings while lobbying for a repeal of the Act in the legislature, Weeks commuted each of their sentences to life without parole.

In his 210-page order, Weeks wrote: “This conclusion is based primarily on the words and deeds of the prosecutors involved in Defendants’ cases. In the writings of prosecutors long buried in case files and brought to light for the first time in this hearing, the Court finds powerful evidence of race consciousness and race-based decision making.”

That evidence included prosecutors’ notes discussing the race of potential jurors and “cheat sheets” used to offer up pretextual excuses for eliminating black jurors.

“Despite her testimony to the contrary, the evidence was overwhelming that this prosecutor relied upon a ‘cheat sheet’ of pat explanations to defeat challenges in numerous cases when her disproportionate and discriminatory strikes against African-American venire members were called into question,” Weeks said.

Both cases now will now return to the trial court in Cumberland County for reconsideration of the inmates’ requests to have their death sentences commuted to life without parole.

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News

Redistricting-Round3-400In a 4-3 ruling released today, the state Supreme Court once again upheld the congressional and legislative voting districts created by the General Assembly in 2011.

The justices had already upheld the plan in a 2014 decision but revisited the issues after a remand by the U.S. Supreme Court.

The question this time around was whether the 2011 plan survived constitutional scrutiny under the high court’s decision last term in Alabama Legislative Black Caucus v. Alabama, holding that lawmakers should not apply mechanical racial formulas when drawing voting lines.

In response, a majority of the state justices said yes, as indicated by Justice Paul Newby in his opinion for the court:

We agree with the unanimous three-judge panel that the General Assembly’s enacted plans do not violate plaintiffs’ constitutional rights. We hold that the enacted House and Senate plans, as well as the federal Congressional plan, satisfy state and federal constitutional and statutory requirements and, specifically, that the three-judge panel’s decision fully complies with the Supreme Court’s decision in Alabama.

Republican state lawmakers in Alabama and North Carolina approached their 2010 redistricting in similar fashion – not surprising given that they operated with guidance and funding from party operatives in Washington.

Both drew voting maps based upon statistical formulas they claimed were necessary to avoid Voting Rights Act liability, with little regard to what had been happening on the ground in terms of minority political control.

But that “on the ground” analysis is what’s called for, as Supreme Court Justice Stephen Breyer noted when writing for the majority in the Alabama case. Read More

News

Action NC, Democracy NC, the A. Philip Randolph Institute and three state residents filed suit today against state officials in federal court in Greensboro for violations of the federal “Motor Voter Law.”  That law requires the state to provide voter registration services to people visiting public assistance agencies and motor vehicle offices in an effort to expand registration and voting opportunities.

In May 2015 the groups advised the state Board of Elections, Department of Health and Human Services and the Division of Motor Vehicles that each had failed to meet its obligations under the Motor Voter Law and urged quick steps to bring the state into compliance.

A report out at that time showed that state offices were systematically failing to provide state residents with the opportunity to register to vote when they applied for public assistance.

According to Democracy NC, voter registration applications initiated at public assistance agencies dropped dramatically since Gov. Pat McCrory took office, falling from an annual average of 38,400 between 2007 and 2012 to an average of only 16,000 in the past two years — a decline of more than 50 percent.

The organization also reported that last fall it and other voting-rights groups checked out 19 public assistance agencies across the state and found after interviews that up to 75 percent of the clients at the agencies did not see a registration question on agency forms and were not asked whether they would like to register to vote, as required by federal law.

The groups filing suit today say that state offices have failed to remedy the violations identified in May.

“North Carolina’s public assistance agencies are routinely failing to provide NVRA-mandated voter registration services,” Allison Riggs, an attorney from the Southern Coalition for Social Justice representing one of the plaintiffs said in a statement. “Extensive interviews conducted at public assistance offices in 11 counties found rampant lapses in compliance with the law, lapses that are having a huge impact on North Carolina voters.”

Read the complaint filed today here.

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News

The U.S. Supreme Court took a second look at admissions at the University of Texas Wednesday morning and by most accounts, the prognosis for its affirmative action policy is not good.  

The case before the justices, Fisher v. University of Texas, had already been heard in 2012 after a white student denied admission to the school lost at the Fifth Circuit, but the high court sent it back for further findings.

The university had set up admissions so that it automatically accepted Texas high schoolers in the top ten percent of their class. UT then evaluated the remainder of applicants based upon a number of factors and gave them two scores: one based on essays, leadership activities, and background, including race, and one based on grades and test scores.

Abigail Fisher, the student challenging that policy, had just average academic qualifications and the university argued that she wouldn’t have been admitted even if she had received a boost because of race.

(For a more detailed explainer from Vox, read here.)

A similar challenge to admissions at the University of North Carolina at Chapel Hill is pending in federal court in Winston-Salem, but has been stayed until the Supreme Court hands down its decision in Fisher.

Questioning at the argument confirmed that the justices were leaning along party lines.

Justice Antonin Scalia shared his own peculiar take on affirmative action, as shared here at Talking Point Memo:

Referencing an unidentified amicus brief, Scalia said that there were people who would contend that “it does not benefit African-Americans to — to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less — a slower-track school where they do well.”

He argued that “most of the black scientists in this country don’t come from schools like the University of Texas.”

“They come from lesser schools where they do not feel that they’re — that they’re being pushed ahead in — in classes that are too — too fast for them,” Scalia said.

The court’s swingman, Justice Anthony Kennedy — already no fan of affirmative action — hinted near the end of argument that the time may have come to put the Texas policy out to pasture.

Because Justice Elena Kagan is not participating in the case, a Kennedy vote for the university would leave the Fifth Circuit decision upholding the program in place.

Here’s Adam Liptak from the New York Times:

Justice Anthony M. Kennedy devoted almost all of his questions to exploring whether the case should be returned to the trial court to allow the university to submit more evidence to justify its use of race in deciding which students to admit.

By the end of the unusually long and tense argument, Justice Kennedy indicated that the Supreme Court might have all the evidence needed to decide the case. That could mean that the Texas admissions plan is in peril and that affirmative action at colleges and universities around the nation may be in trouble as well.

For additional coverage of Wednesday’s argument, see the Washington Post here and the Los Angeles Times here.

The full transcript of the argument is available here.