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vote2In case you missed it, Dahlia Lithwick had this wonderful post last week in which she noted the irony underlying a recent Arkansas Supreme Court decision rejecting that state’s voter ID law.

The court there based its ruling upon an 1865 decision protecting a confederate soldier’s right to vote under the state’s constitution — which required only that voters be U.S. citizens of a certain age, registered to vote, and living in the county where voting. As Lithwick noted, “modified versions of four of these qualifications (being a U.S. citizen, a resident of Arkansas, at least 18 years old, and lawfully registered to vote) are still the law in Arkansas.”

She added:

Just to be perfectly clear as to what just happened here, the Arkansas Supreme Court relied on a post–Civil War case restoring the franchise to former Confederate soldiers, including some who had slaughtered former slaves, to strike down a new voter ID law that would have suppressed the vote of minorities.

Lithwick credited University of Richmond Law School Professor John Pagan with pointing out the court’s precedent, and passed along this comment from Pagan in an email message to her:

My great-great grandfather, who served in an Arkansas regiment of the Confederate Army from 1861-65, was disenfranchised under the 1864 statute held unconstitutional in Rison. That the restoration of his voting rights by judicial decision in 1865 should provide the constitutional basis for preventing the disenfranchisement of enslaved people’s descendants in 2014 has to be one of the most remarkable turnabouts in the legal history of the South.

 

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vote2Three posts this morning about the ongoing war on voters are worth your while, starting with yesterday’s opinion from Wake County Superior Court Judge Donald Stephens, ordering the state Board of Elections to reconfigure the voting plan out in Watauga County to locate a polling place at Appalachian State.  It’s a short opinion that packs a powerful punch and, as Justin Levitt notes here at the Election Law Blog, reminds us that “even as the war over North Carolina’s new statewide law rages on, [we shouldn’t] ignore the battles over implementation”:

The majority plan of the Watauga County Board of Elections on its face appears to have as a major purpose the elimination of an early voting site on the ASU  campus. Based on this record, the court can conclude no other intent from that board’s decision other than to discourage student voting. A decision based on that intent is a significant infringement of students’ rights to vote and rises to the level of a constitutional violation of the right to vote.

The early voting plan submitted by the majority members of the Watauga County Board of Elections was arbitrary and capricious. All the credible evidence indicates that the sole purpose of that plan was to eliminate an early voting site on campus so as to discourage student voting and, as such, it is unconstitutional.

Alec MacGillis has this post at the New Republic, listing these reasons why Republicans should surrender the fight over suppressing the vote:

1. The voting wars are a costly, bureaucratic nightmare.

2. The absence of voter fraud is becoming impossible to deny.

3. The GOP’s voter suppression efforts are motivating Democrats.

4. Rand Paul says so.

And Philip Bump addresses the myth of in-person voter fraud in this Washington Post blog, reiterating how such fraud, to the extent it exists at all, is found with absentee ballots — the one area free from voter ID restrictions.

Says Bump:

Almost no one shows up at the polls pretending to be someone else in an effort to throw an election. Almost no one acts as a poll worker on Election Day to try to cast illegal votes for a candidate. And almost no general election race in recent history has been close enough to have been thrown by the largest example of in-person voter fraud on record [24 voters in Brooklyn].

 

News

Busy, busy day in state courts today. Here’s a quick recap:

No guns at the state fair. Wake County Superior Court Donald Stephens upheld the determination of Agriculture Commissioner Steve Troxler banning handguns from the state fair.

Court orders opening of Appalachian State polling place.  As reported here, Judge Stephens also ordered state election officials to reconfigure Watauga County’s early voting plan to include at least one voting center at Appalachian State University for later this month.

City of Charlotte retains control of the airport. Superior Court Judge Robert Ervin ruled that the city — not a GOP-created 13-member commission — will run Charlotte Douglas International Airport unless and until the commission  gets an operating permit from the Federal Aviation Administration or otherwise gets permission from the agency to use the city’s operating certificate.

 

News

Supreme CourtThe state Supreme Court today bypassed the Court of Appeals and took five controversial cases for direct review, exercising its rarely-used discretion and raising eyebrows over the timing, with contentious partisan elections soon getting underway.

The issues raised in the cases — school vouchers, coal ash, class certification — are hot buttons, and some of the parties involved have deep-pockets — including Duke Energy and U.S. Tobacco Cooperative

The high court took those cases despite having yet to render opinions in several high-profile cases — including the redistricting case, which has been pending since argument in January, and two cases concerning the Racial Justice Act, pending since argument in April.

Here are the cases:

Hart v. North Carolina:  This is the appeal of Superior Court Judge Robert Hobgood’s August ruling that the state’s newly-enacted school voucher program was unconstitutional because it:

1) appropriates to private schools grades K-12, by use of funds which apparently have gone to the university system budget but which should be used exclusively for establishing and maintaining the uniform system of free public schools;

2) appropriates education funds in a manner that does not accomplish a public purpose;

3) appropriates educational funds outside the supervision and administration of the state board of education;

4) creates a non-uniform system of education;

5) appropriates taxpayer funds to educational institutions that have no standards, curriculum and requirements for teachers and principals to be certified;

6) fails to guard and maintain the rights of the people who privilege the education by siphoning money from the public schools in favor of private schools; and

7) allows funding of non-public schools that discriminate on account of religion.

The case had just gotten underway in the Court of Appeals before the Supreme Court’s order today.

Cape Fear River Watch v. N.C. Environmental Management Commission:  This is Duke Energy’s appeal of Superior Court Judge Paul Ridgeway’s March ruling requiring the company to immediately eliminate the source of groundwater contamination at its coal ash pits — in advance of any clean-up plans it might later adopt.  In its opening brief in the Court of Appeals, Duke Energy argues that the Coal Ash Management Act passed by the General Assembly in August overruled the lower court’s decision.

Fisher v. Flue-Cured Tobacco Cooperative Stabilization (U.S. Tobacco Cooperative): This is an appeal of the certification of a class comprised of some 800,000 past and present tobacco farmers (per U.S. Tobacco Co-op’s brief) claiming to be entitled to and seeking payment from a $340 million reserve fund held and maintained by the cooperative.

Arnesen v. Rivers Edge Golf Club: Five cases are consolidated in this appeal, in which purchasers of vacant lots in Brunswick County sued the developer, mortgage broker, appraisers, attorneys, and BBT Bank, alleging a scheme to sell the lots at artificially inflated prices through “high-pressure, misleading sales tactics, fruadulent appraisals, unscrupulous lending practice and other conduct.”  Purchasers of the lots are appealing orders from the Business Court dismissing certain claims and defendants.

Cubbage v. N.C. State University Endowment Fund: This case concerns the pending sale of the Hofmann State Forest by the N.C. State Endowment Fund, which plaintiffs say was negotiated in secret and failed to comply with the N.C. Environmental Policy Act because the fund never obtained an Environmental Impact Statement. Wake County Superior Court Judge Shannon Joseph dismissed the case last November.