Commentary, Courts & the Law

Not dead yet? Conservative website claims court-packing scheme could be on tap at special session.

For years now, rumors have persisted in North Carolina political circles that Republican legislative leaders were seriously considering the idea of adding two new justices to the state Supreme Court in order to eliminate or dilute the court’s Democratic majority. The scheme has always been fraught  with huge challenges — not the least of which at present is that: a) Democrats will enjoy a 5-2 majority come January and b) any new seats created would be filled until the 2020 election by Gov. Roy Cooper.

All that said, the rumor persists. This morning, the right-wing website known as the Daily Haymaker included a post entitled “#ncga: TWO MORE justices?” in which the author reported the following:

“I am hearing from sources inside and outside the legislative building in Raleigh that the GOP super-majority will attempt to use its last days in power to ram through an expansion of the state Supreme Court’s membership. Word is they will try to add TWO additional justices — basically cancelling out the gains by Democrats in the last two years.”

Though the idea makes little apparent sense — even the Haymaker dismisses the scheme as “a bad idea for many reasons” — one supposes that anything is possible when it comes to the current GOP leadership and its desperate ongoing efforts to cling to absolute power as long as humanly possible.

Another plausible explanation for the rumblings might simply be to provide cover for the other plans that Republicans are genuinely hatching for the Nov. 27 special legislative session. If North Carolinians get themselves all fired up to oppose court packing, maybe other, more likely schemes (like a new and restrictive voter ID law or other efforts to further erode the power of the Governor) will get lost in the shuffle and seem less objectionable.

Or, maybe, the Haymaker’s anonymous sources are simply all wet and the whole thing is just another wild, wacky and baseless rumor. That certainly wouldn’t be unprecedented for the website in question.

One thing that does seems certain, however, is that Republicans are indeed scheming about how to best take advantage of their remaining weeks of supermajority status on Jones Street. What’s more, caring and thinking North Carolinians ought to be watching carefully and preparing for action with great vigilance.

Commentary, Courts & the Law, News

Damning new report: NC General Assembly is forcing state judges to “criminalize poverty”

A new report from the good people at the North Carolina Poverty Research Fund is shining new light on an important area in which the General Assembly has been doing its worst to attack and undermine the independence of the judiciary: the micromanagement of court fines and fees.

The report is entitled “Forcing Judges to Criminalize Poverty: Eroding Judicial Independence in North Carolina” and in it, authors Gene Nichol and Heather Hunt build on their past research efforts regarding the burdensome nature of court fines and fees for poor people. As Nichol and Hunt explain, state lawmakers have, through their repeated enactment of news laws in recent years limiting the ability of judges to use their discretion in meting out fines and fees, done great damage the basic concept of of an independent judiciary.

This is from the introduction:

In 2017, the legislature piled on. It amended the court fees law to prohibit any waiver unless “notice and opportunity to be heard” was presented to all government entities potentially receiving funds from court fees. The notice must proceed by first class mail, to apparently hundreds of agencies, at least 15 days prior to any granted waiver. It, too, is a first-in-the-nation hurdle — consuming court time and money and requiring secondary hearings. State judges reportedly believe the goal of the agency notice is to make “the process to waive a court fee so burdensome” that judges simply won’t bother — tightening the screws on judicial discretion. Early this year the waiver law was altered again, demanding that the AOC report annually to a legislative oversight committee “on the implementation of the notice … to government agencies” requirement.

We make the claim here that the mandated “shaming” report and the absurdly burdensome agency notice requirement unconstitutionally interfere with the independence and integrity of North Carolina courts. The Supreme Court of North Carolina, echoing the state constitution’s demand that “the legislative, executive and judicial powers be forever separate and distinct,” has held that the separation of powers principle is violated “when the actions of one branch prevent another branch from performing its constitutional duties.” The General Assembly has given North Carolina courts the power to waive most court-ordered fees under state law. Despite that grant of authority, the annual waiver report and the uselessly laborious agency notice requirement are designed to place a heavy (legislatively-crafted) thumb upon the scales of such judicial determinations. A legislature may grant courts jurisdiction to adjudicate various matters. It may not, having granted such authority, then attempt to compel judges to exercise that power in favor of (or against) a particular litigant. Doing so breaches the independence required by American courts. The breach is made even more worrisome when waiver is, in numerous instances, mandated by the United States Constitution….

Of course, the North Carolina General Assembly’s treatment of court fee waivers is hardly its only recent attack on the integrity and independence of the state court system. It has, in the past decade, ended public financing in judicial elections, re-introduced partisan judicial elections, curbed jurisdiction in constitutional challenges, intervened by statute to protect a Republican incumbent justice, manipulated the size of the court of appeals, eliminated judicial primaries, re-districted disfavored Wake and Mecklenburg county courts, moved to reduce gubernatorial appointments, sought to take over the judicial appointment process and threatened judges with the prospect of two year terms. The head of the Republican Party has threatened to impeach judges who rule against the party. So, for North Carolina legislators, interfering with the independence of courts is hardly foreign ground. The General Assembly’s anti-waiver scheme, however, marries two of the legislature’s principal themes of the last decade: attacking the independent functioning of the courts and crushing the prospects of low-income North Carolinians. It is unconstitutional to force judges to step on the necks of poor Tar Heels.

Click here to read and share the full report.

Courts & the Law, Defending Democracy, News

NC voters pass 4 constitutional amendments; lame-duck session looming

An amendment requiring a photo ID to vote passed by the smallest margin of the six proposed constitutional amendments on this year’s ballot.

North Carolina voters wrote four blank checks yesterday to GOP lawmakers who already said they plan to hold a lame-duck legislative session to implement constitutional amendments.

Those same lawmakers who lost their grip on their veto-proof supermajority are the ones who get to decide the future of voting in North Carolina after voters passed an amendment requiring a photo identification to cast a ballot. They voted for that amendment (55.51 percent to 44.49 percent) without a clue about what kind of photo ID lawmakers would require in a future election.

That means when they come back to Raleigh on Nov. 27, they could adopt implementation language that requires voters to show a student ID to vote or they could adopt language that prohibits student IDs and military IDs from being valid to vote. They could implement a similar voter ID law to the one that was previously struck down for discrimination.

Voters also approved similarly vague amendments that claim to protect North Carolinians’ right to hunt and fish, bolster victim’s rights and cap the state income tax at 7 percent. They rejected two amendments: one that would have given lawmakers the power to appoint judicial vacancies and another that would restructure the State Board of Elections and Ethics Enforcement.

“Today’s election results on six proposed constitutional amendments reflect both major victories for our state and its democracy and the work left to be done to ensure more participation in that democracy, not less,” said Tomas Lopez, Executive Director for Democracy North Carolina. “While North Carolinians rejected deceptive amendments that would have undermined the independence of our courts and jeopardized the efficacy of our state elections board — major wins for all voters in our state — we have serious concerns that the passage of a vaguely-written voter ID amendment will be used by politicians in Raleigh to cement extreme limits to voting access for our state’s most marginalized populations.”

Members of the voting rights organization spent the past year traveling across the state to reveal the dangers of the sweeping voting restriction amendment. As a result, support for the proposed amendment dropped dramatically over the course of the fall.

Seventeen of North Carolina’s 100 counties voted against the voter ID amendment, which was the most counties against an amendment that was ultimately approved.

Allison Riggs, senior voting rights attorney at the Southern Coalition for Social Justice, said the margin of the voter ID amendment outcome suggests that North Carolina voters are deeply conflicted on the issue.

“Legislators should take that into account when implementing an ID law and include signature attestation and other reasonable measures to make sure that eligible voters are not kept from voting in future elections,” she added.

The most popular of the approved amendments was one that could strengthen victim’s rights, as was expected. Only eight counties voted against that amendment. Not many people expressed opposition to the amendment during the campaign even though victim’s rights already are enshrined in the North Carolina constitution and despite the fact that any further rights in the amendment would be implemented “as prescribed by law.”

There was significant opposition from organizations to the tax cap amendment, which showed slightly in election results. Twelve counties voted against the amendment. The overall votes for it were 57.37 percent compared to 42.63 percent against it.

The amendment securing the right to hunt and fish passed with 57.13 percent of the votes for it compared to 42.87 percent against it.

Both of the amendments that failed did so with more than 60 percent of votes. Only seven counties voted for an amendment that would have transferred power from the Governor to the legislature for judicial vacancy appointments.

“After multiple efforts to undermine North Carolina’s judiciary, voters clearly rejected a constitutional amendment that amounted to nothing more than a legislative power-grab over our independent system of justice,” Riggs said in an email. “North Carolina citizens will continue to enjoy the benefits of separation of powers and courts that will reign in illegal legislative action.”

Only 11 counties voted for an amendment that would have restructured the State Board to consist of four Republicans and four Democrats, eliminating unaffiliated representation. That amendment was overwhelmingly viewed as another legislative power grab.

“The rejection of these two amendments shows that voters strongly believe in our state government’s separation of powers and do not support extreme power grabs by state legislators bent on rigging the system in their favor,” states a news release from the ACLU of North Carolina.

The organization noted its disappointment in the passage of the four other amendments and said the voter ID one would perhaps be the most consequential.

The last time North Carolina enacted a photo ID requirement for voting, lawmakers designed restrictions that a federal court found targeted Black voters ‘with almost surgical precision.’ More than 1,400 citizens were denied their right to vote under that law, according to the ACLU.

Many of those voters were turned away because they didn’t have “the right ID.” Those they did have — like student IDs and trucking licenses — were not accepted.

“While voters may have approved the photo ID requirement in concept, the fine details of the law must now be decided by many of the same lawmakers who passed the discriminatory 2013 law that was struck down,” the ACLU release states. “Over the next few weeks, people across the state must tell lawmakers that any discrimination against eligible voters will not be tolerated.”

Courts & the Law, Defending Democracy, News

Voting hours extended at Gaston, Columbus county polling places

A majority of the State Board of Elections and Ethics Enforcement voted Tuesday afternoon to extend voting hours in one Gaston County polling place and one Columbus county polling place after they reported Election Day disturbances.

The three Republican members of the Board, Stacy Clyde Eggers IV, John Randolph Hemphill and John Malachi Lewis voted against the extensions.

The Gaston County Board of Elections unanimously requested a 20-minute extension to voting hours after a fire alarm went off at the precinct at Ashbrook High School. Voting at that location was suspended from 11:20 to 11:40 a.m.

No voters left during that time and none were turned away, according to correspondence from Adam Ragan, Director of Gaston County elections. There were 16 voters inside at the time the fire alarm went off and about eight or nine showed up afterward.

Eggers said he applauded the county board of elections for coming to a unanimous decision in requesting the voting hours extension, but he did not support it because no voters were affected by the disturbance.

The Democratic members of the State Board – Chairman Andy Penry, Joshua Malcolm, Valerie Johnson and Stella Anderson – as well as unaffiliated member Damon Circosta voted for the extension.

They also voted for an extension at the South Williams precinct in Columbus County by an hour and 20 minutes. That location reported to the State Board that they did not have one of three ballot styles at the time the polling place opened at 6:30 a.m., and they did not have it until 8:20 a.m.

The Columbus County Board of Elections unanimously requested a two-hour voting extension, though the maximum allowable time for an extension is however long the disturbance was.

Eggers again expressed his opposition and said he would be more inclined to support only a one-hour extension or an extension that only applied to those voters casting the ballot style that was unavailable.

Circosta responded to him that it did not matter to him whether one voter or zero voters were affected when voting was unavailable for 110 minutes.

Eggers and his Republican colleagues voted against the extension, but it still passed.

There was also a voting extension request of 10 minutes at a Richmond County polling place, but only voting extensions in excess of 15 minutes are permitted, so it was not approved. There was also a 15-minute voting disturbance reported in Rowan County but the county board there did not request an extension.

Finally, Penry requested more information about reports he had seen that humidity was affecting some precinct voting tabulators.

Executive Director Kim Westbrook Strach said that there were several precincts reporting that the humidity was affecting the tabulation of some ballots, which were put in an emergency bin. Election administrators, through a public process, will tabulate those ballots correctly at the end of the night, she said.

Malcolm encouraged Strach to recommend election directors to inform the public of that process and she agreed she would after the meeting.

“I think it’s very important for the public see that happen and it be explained to the public,” he said.

Here are the two polling places with extended voting hours:

  • Closes at 7:50 p.m. – Ashbrook High School, 2222 S New Hope Road, Gastonia, NC 28054
  • Closes at 9:20 p.m. – South Williams-Tabor City Courthouse, 110 W Fourth Street, Tabor City, NC, 28463
Courts & the Law, Defending Democracy, News

State Board offers helpful Election Day tips for voters

Election Day is finally here, and with high early voting turnout, it’s likely many more North Carolinians will be headed to the polls today.

As of 3:30 p.m. Saturday, more than 2 million voters had cast ballots early in North Carolina, a 73 percent increase over 2014 early voting totals (1,174,184), according to the State Board of Elections and Ethics Enforcement.

The agency put together the following tips to help voters who plan to cast their ballots today:

  • Polls across North Carolina are open from 6:30 a.m. to 7:30 p.m. Voters in line at 7:30 p.m. will be able to cast a ballot. Lines tend to be longer before and after normal business hours.
  • Statewide, about 2,700 precincts will be open Tuesday. Find your Election Day polling place here. Voters may vote in another precinct in their county of residence. However, to ensure you receive your full ballot, go to the precinct for the address where you lived on October 7, 2018.
  • Sample ballots are available through the State Board’s Voter Lookup tool here.
  • Same-day registration is not available on Election Day.
  • Information about judicial candidates and the six constitutional amendments on the ballot is here.
  • Voters who need assistance at the polls must request that assistance. Individuals who are unable to enter the polling place may vote curbside. Once inside the polling place, voters who experience difficulties should request help from a poll worker.
  • The State Board asks that all voters respect the right of others to participate in the election. Intimidating any voter is a crime. Voters who feel harassed or intimidated should notify an election official immediately.
  • To report an election incident to the State Board, submit it online here.
  • If you present to vote and your name is not on the voter list, you may request a provisional ballot. If you cast a provisional ballot, about 10 days after the election you may check the status of your ballot here.
  • Election results will begin posting after 7:30 p.m. here.