Courts & the Law, Defending Democracy, News

The opinions: SCOTUS punts two partisan gerrymandering cases

The U.S. Supreme Court passed on its two opportunities this term to weigh in on partisan gerrymandering.

Opinions in two pending cases — Gil v. Whitford and Benisek v. Lamone — were released this morning.

Gil was mostly dismissed for lack of standing and sent back to the lower court “so that the plaintiffs may have an opportunity to prove con­crete and particularized injuries using evidence — unlike the bulk of the evidence presented thus far — that would tend to demonstrate a burden on their individual votes.”

Chief Justice John Roberts wrote the opinion about Wisconsin’s challenge to a 2011 state legislative redistricting map drawn by its Republican-controlled legislature. Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor and Elena Kagan joined. Justices Clarence Thomas and Neil Gorsuch concurred except for part III, which is the part that remands the case back to the lower court.

Kagan wrote a concurring opinion that Ginsburg, Breyer and Sotomayor joined, and Thomas wrote an opinion concurring in part that Gorsuch joined.

In Benisek, the Justices unanimously affirmed a lower court’s decision not to issue a preliminary injunction in a Maryland case that contended congressional redistricting targeted a Republican in violation of the First Amendment.

You can read both full opinions below. An analysis of the opinions and what they could mean for North Carolina will be available this afternoon at NC Policy Watch.

Gil v. Whitford by NC Policy Watch on Scribd

Benisek v. Lamone by NC Policy Watch on Scribd

Courts & the Law, News, Voting

Republican senator to critic of GOP’s controversial voting reforms: “Stop bothering people at such an hour.”

Sen. Rick Horner, R-Johnson, Nash, Wilson

“Stop bothering people at such an hour.”

A Republican North Carolina senator had this to say in an email late Thursday to one woman’s criticism of surprise, GOP-led voting reforms unveiled at the legislature this week.

On Friday, Policy Watch obtained a copy of the terse email exchange, in which Sen. Rick Horner, a one-term Republican who represents Johnston, Nash and Wilson counties, took a Raleigh woman to task.

Horner was firing back at Joanne Rohde of Raleigh, who blasted GOP legislators for their efforts to overhaul early voting and voter ID laws late in the short session.

Rohde is not one of Horner’s constituents, but her email—which was timestamped at 10:59 p.m. Thursday—was directed to all of the state’s Senators. Horner’s reply was sent at 11:06 p.m. Thursday.

From Rohde’s email:

Our State Legislature is the poster child of hollowing out Democracy from within.  Shame on those of you promoting legislation that thwarts the intent of the Supreme Court ruling.  Shame on those of you limiting our basic right to vote.  Shame for sneaking around in the middle of the night changing laws without public discourse.

You think no one is watching, or no one cares; or maybe you just think [you’re] untouchable.  But you’re wrong.  Not only will I cast my vote against those working against our democratic principles, but I will spend my weekends knocking on doors and making calls to make sure that as many citizens as possible know what you’re doing.  And I assure you, I’m not alone.

It appears the lawmaker copied all of his Senate colleagues, both Democrats and Republicans, on the response. It’s unclear whether that was intentional or unintentional.

Horner couldn’t be immediately reached for an interview Friday afternoon.

Voting rights advocates are fired up over new Republican proposals to nix a major early voting day and revive voter ID requirements.

House Speaker Tim Moore announced the voter ID bill Monday, which would put it to voters to decide whether the state requires mandatory photo IDs at the polls, an idea that’s been widely denounced for its potential impact on minority voters.

Two years ago, a federal court shot down the GOP’s 2013 voter ID law, writing that it targeted African-American voters with “almost surgical precision.”

The new legislation is awaiting review in a House elections committee.

Meanwhile, GOP legislators in the House gutted a 2017 tax cut bill from the Senate this week, reintroducing the measure as “The Uniform & Expanded Early Voting Act.”

The bill’s sparked fierce criticism because it would do away with early voting on the Saturday before Election Day, a particularly popular day.

The legislation swept through the state House Thursday and Friday amid often bitter debate. After its approval Friday morning, state Senate lawmakers placed it on their calendar for a possible vote Friday.

[Update: The Senate approved the House-amended bill Friday afternoon. Horner voted to approve the proposal. It’s now bound for Gov. Roy Cooper.]

Courts & the Law, Defending Democracy, News

Report: How might the U.S. Supreme Court rule on partisan gerrymandering?

Court watchers across the country were holding their breath this morning for a U.S. Supreme Court opinion on partisan gerrymandering that didn’t come.

Justices heard the Wisconsin partisan gerrymandering case, Gil v. Whitford, in October. They heard arguments in a similar case out of Maryland, Benisek v. Lamone, in March. Whatever decision comes from the high court in either case could have an effect on redistricting practices in legislatures across the nation, including in North Carolina.

The court released a couple of opinions this morning, but the Wisconsin and Maryland cases were not among them. The Hill in Washington D.C., though, published an article speculating what the court might do in the two pending partisan gerrymandering cases.

What might the justices do? We see several possible outcomes.

At one end of the spectrum, the court could categorically reject both challenges as “nonjusticiable.” Partisan gerrymandering, they could say, is fundamentally a political matter, not a legal issue for the courts. Four of the nine justices said just that back in 2004, when the court addressed partisan gerrymandering head on.

At the other end of the spectrum, the court could side with the challengers in both cases and endorse both proposed legal tests. Even under this scenario, the challengers will have more work ahead. It is too late to impose new maps for the 2018 election. Instead, the challengers will aim to have compliant maps in place for 2020. This will likely entail further litigation, because the party in power presumably will try to maintain as much of its existing advantage as possible. Another fight looms when the next round of redistricting takes place after the 2020 census.

A mixed result may be the most likely. The justices could turn away one or both cases on procedural grounds. In particular, a majority may hold that the plaintiffs in the Wisconsin case lack legal standing to challenge the entire statewide map. (Reading the tea leaves, court-watchers have deduced that Chief Justice Roberts, who expressed skepticism about plaintiffs’ standing at oral argument, is probably drafting the Wisconsin opinion.)

A final, unsatisfying possibility is that a majority will not coalesce behind any result. That’s what happened in the 2004 gerrymandering case, which is why the issue is back now. If the justices are struggling to find common ground, they might schedule the cases for re-argument this fall. And they could even add a third case to the mix — a challenge to a North Carolina gerrymander that is also teed up for review. Justice Breyer alluded to this re-argument option during oral argument in the Maryland case.

Read the full article here. Monday is the next chance for opinions from the high court.

agriculture, Courts & the Law, Environment

BREAKING: Federal hog nuisance trial halted

[This is a developing story. It will be updated as information becomes available.]

Update: The trial has resumed with all 12 jurors

The federal hog nuisance trial against Murphy-Brown and Smithfield Foods has been stopped, at least temporarily, because a juror allegedly brought in printed material about the N.C. Farm Act debate.

According to a source with knowledge of the inner workings of the trial, the juror may have also passed the material on to other jurors.

The trial is on hold until US District Court Judge Earl Britt decides whether to dismiss the juror or jurors involved— or to declare a mistrial.

The trial could proceed with as few as six jurors. During the first trial, two jurors were dismissed for personal reasons, such as illness.

Murphy-Brown lost the first trial, which prompted Sen. Brent Jackson to sponsor SB 711, the N.C. Farm Act. The bill would all but erase the rights of neighbors of industrialized hog farms to sue for nuisance.

Courts & the Law, Defending Democracy, News

Boswell releases emails amid ACLU lawsuit pressure

Rep. Beverly Boswell

The ACLU of North Carolina has forced a House Representative’s hand in a battle over public records.

Rep. Beverly Boswell (R-Beaufort) “decided to” release her unredacted emails after Kitty Hawk resident filed a lawsuit. She had initially refused to release anything, then later released documents concealing the identity of everyone her office communicated with.

The full release comes more than a year after one of her constituents, Craig Merrill, first asked for public records of phone and email correspondence between her office and the residents and businesses she represents in North Carolina House District 6, which includes parts of Beaufort, Dare, Hyde, and Washington counties.

The ACLU filed the public records lawsuit on behalf of Merrill in January.

“We are glad that Representative Boswell finally agreed to do the right thing and stop hiding who she was communicating with about the public’s business,” said Chris Brook, Legal Director of the ACLU of N.C. “North Carolinians deserve transparency from their elected officials – and the law requires it.”

In a letter addressed to Brook about the records release, the special deputy attorney general who represents Boswell, Olga Vysotskaya de Brito, said the lawmaker “made a decision to disclose the in-redacted set of documents” Merril requested.

“In our view, today’s production of documents resolved the pending controversy,” the letter states.

They also filed a motion to dismiss the lawsuit. The motion essentially states the case is moot and should be dismissed for lack of subject matter jurisdiction.

In a motion for summary judgment filed last month, the ACLU said that there was no legal justification for Boswell to conceal who she and her office were corresponding with on matters related to her work as a public official on issues including the Outer Banks plastic bag ban.

Many of the documents Boswell provided contain the following message: “Email correspondence to and from this address is subject to North Carolina Public Records Law and may be disclosed to third parties.”

“The public deserves to know how our representatives are conducting business on our behalf so that we can hold them accountable,” Merrill said. “I am glad my representative has finally agreed to follow the law, but it never should have taken more than a year and a lawsuit for her to do the right thing and be open about her work with a constituent.”

Brook said Wednesday that Boswell provided the unredacted records after they filed a motion for summary judgment arguing that Merrill was legally entitled to know who she was corresponding with on matters of public interest.

“Put another way, Representative Boswell only provided unredacted records after we made plain that we would continue pursuing the matter in court,” he said. “The ACLU-NC has not agreed to dismiss the lawsuit as it is not yet fully resolved. The state Public Records Act entitles individuals who substantially prevail in public records litigation to receive attorneys’ fees. We will be seeking fees to recover money spent litigating a case that we offered Representative Boswell every opportunity to resolve prior to filing a lawsuit.”