Commentary, Courts & the Law

THIS is the person Donald Trump has nominated to replace Brett Kavanaugh on the nation’s #2 court

As we reported in this space back in November, Donald Trump’s relentless assault on the federal courts continues in the aftermath of the Brett Kavanaugh debacle. The clear lesson that he and Republican senators learned: “Damn the torpedoes, full speed ahead!”

The latest evidence of this hard reality: Neomi Rao — Trump’s nominee to take Kavanaugh’s spot on the U.S. Court of Appeals for the D.C. Circuit, the nation’s second highest court, who had her confirmation hearing before the Senate Judiciary Committee today.  Yesterday, court watchers at the Alliance for Justice released a detailed report on Rao and it’s not an encouraging picture that they paint.

AFJ:  Rao Should Not Be Confirmed  

WASHINGTON, D.C., February 4, 2019  – Alliance for Justice today released a research report on the record of Neomi Rao, President Donald Trump’s nominee to take the D.C. Circuit court seat formerly held by Brett Kavanaugh.  AFJ President Nan Aron made the following statement:

“Neomi Rao’s record of offensive statements about women, sexual assault survivors, LGBTQ people, people of color and the environment is matched only by her track record of advancing federal government policies that are deeply harmful to these same communities and interests.  It only makes matters worse that she is being named to the nation’s second-highest court and to the seat once held by Brett Kavanaugh, who has faced credible allegations of sexual abuse. Senators should understand that a vote to confirm Neomi Rao is a slap in the face to some of the most vulnerable people in our society.”

Among other things, the AFJ report finds:

  • Rao’s writings blaming sexual assault on survivors, rather than perpetrators, foreshadow her work as Administrator of the Office of Information and Regulatory Affairs, a government office that is taking a major role in rolling back Title IX protections for survivors of campus sexual assault.
  • Rao has criticized the Violence Against Women Act, calling it a “grandstanding” statute.
  • Rao wrote critically about women’s full participation in society, stating that “in exchange for access into the working world and sexual freedom, women have lost much of the previous caring and affection of men.”
  • At OIRA, Rao halted a data-collection program designed to gather information on the pay disparity between genders, as a step toward remedying it.
  • Rao wrote disparagingly about racial justice, saying that Yale “drops its standards only for a few minorities, some legacies and a football player here or there.” Under Rao, OIRA is working with Department of Housing and Urban Development to roll back protections against race-based housing discrimination.
  • Rao has vocally opposed marriage equality and has written critically about the Supreme Court ruling in United States v. Windsor, which struck down part of the Defense of Marriage Act.
  • Rao has writings critical of LGBTQ rights, and under her leadership, OIRA is finalizing a rule that would allow health care providers to refuse care to LGBTQ patients on the basis of “conscientious objections.”
  • Rao has written to defend “dwarf-tossing,” a degrading practice in which participants throw little people for sport or entertainment. The organization Little People of America wrote to the Senate opposing Rao’s confirmation on the basis of her views on dwarf-tossing.
  • Rao’s record shows that she is eager to undermine the power of government agencies to create and enforce public protections for consumers, the environment, workers, and health and safety.  She has argued that agencies should have far less power and in favor of a decades-old, discredited legal doctrine (the nondelegation doctrine) that would gut the recognition of agencies’ expertise and authority in their fields.
  • Rao, like many other Trump nominees, believes Presidents are entitled to very expansive and wide-ranging powers.  She believes that Presidents can overrule the other two coequal branches of government. She believes independent agencies should be under a president’s control, and she has also been critical of the independent counsel statute.   Her views suggest that she would not act as an independent check on abuses of power by President Trump.

The full report can be found here: www.afj.org/Rao

Courts & the Law, Defending Democracy, News

9th congressional district evidentiary hearing set by Board of Elections

Mark Harris

The State Board of Elections will hold an evidentiary hearing about its 9th congressional district investigation into alleged absentee ballot irregularities later this month.

The Board announced in an email Monday afternoon that the hearing would begin at 10 a.m. February 18 at the North Carolina State Bar, 217 E. Edenton St., Raleigh. It is expected to conclude within two days, but the site is reserved from February 18 to 20.

A Notice of Hearing and Amended Order of Proceedings will be posted today on the State Board’s documents portal for the 9th congressional district investigation, according to a news release from the agency.

Because of the ongoing investigation, the State Board has not certified the results in the 9th congressional district race between Democrat Dan McCready and Republican Mark Harris, as well as three local contests in Bladen and Robeson counties.

Harris, who was the apparent winner in the midterm election, petitioned a court recently to certify the race despite the ongoing investigation because the State Board that initiated it was dissolved by a three-judge panel. The former nine-member State Board (four Democrats, four Republicans, one unaffiliated) voted 9-0 on November 27 and 7-2 on November 30 not to certify results as the investigation into absentee voting irregularities continued.

The court also ultimately denied Harris’ request to certify the race.

Seating is expected to be limited at the evidentiary hearing, but it is expected to be live-streamed for the public.

Courts & the Law, Defending Democracy, News

Report: Appeal about federal public document fees draws lots of support

It costs almost nothing for courts to store and transfer electronic data, but the federal judiciary charges 10 cents per page to use its Pacer system to access public documents. That could soon change.

The New York Times today reported about a federal case on appeal that has attracted a large array of support for breaking down the excessive Pacer costs.

The National Veterans Legal Services Program and two other nonprofit groups filed a class action in 2016 seeking to recover what they said were systemic overcharges. “Excessive Pacer fees inhibit public understanding of the courts and thwart equal access to justice, erecting a financial barrier that many ordinary citizens are unable to clear,” they wrote.

The suit accuses the judicial system of using the fees it charges as a kind of slush fund, spending the money to buy flat-screen televisions for jurors, to finance a study of the Mississippi court system and to send notices in bankruptcy proceedings.

A 2002 law allows — but does not require — the judicial system to charge for access to the records, but “only to the extent necessary” to pay for “services rendered.” The judicial system says the law allows it to charge the current fees and to spend the proceeds on a variety of programs. People seeking free access, the judicial system’s brief said, can visit the courthouse.

Last year, Judge Ellen S. Huvelle of the Federal District Court in Washington accepted the challengers’ basic theory and said the judicial system had misused some of the money.

The case is now on federal appeal. The New York Times article examines some of the supporting briefs in the case, which state fairly simply that there should be full access to public documents and the money at stake with Pacer would not break the federal judiciary’s budget.

The federal judiciary’s budget is about $7 billion, according to the article. Fees from Pacer generated about $145 million in recent years, or about 2 percent of the total.

Judge Scheindlin said Pacer fees were particularly harmful to litigants who represent themselves, to academic researchers who want to explore systemic issues like sentencing disparities and to journalists at smaller news outlets.

There is one shining exception to the federal judiciary’s hostility to free electronic access to its records. In late 2017, the Supreme Court started its own electronic filing system, making virtually all documents filed with the court available online at no cost.

“The Supreme Court’s system is terrific, and it’s a model for how courts can do this,” said Deepak Gupta, a lawyer for the groups challenging the Pacer fees. “It demonstrates that there isn’t any practical obstacle to making filings available for free.”

Pacer does make some exceptions to its 10-cents-a-page charges. Judicial opinions are free. For other documents, there is a $3 cap. People whose fees are less than $15 in a quarterly billing cycle are charged nothing.

Courts also have some discretion to waive the fees. Curiously, they are generally prohibited from exempting “members of the media.”

NC Policy Watch and many, many media outlets across the nation use and pay for Pacer documents to keep the public informed about federal court cases. Litigation here that have required Pacer access include North Carolina v. Covington, the state’s long-running racial gerrymandering case, Common Cause v. Rucho and League of Women Voters v. Rucho, the more recent partisan gerrymandering cases, and many more.

Media organizations have also filed supporting briefs in the appeal. Read the full New York Times report here.

Commentary, Courts & the Law, Education, Environment, Higher Ed, News, public health

The week’s Top Stories on Policy Watch

1. In some North Carolina counties, traditional schools are being squeezed by charters

School buses prepare for another school year

There has been much written about the impact charter school growth has had on some of North Carolina’s larger, urban school districts.

But the impact might be greater on some of the state’s smaller, rural school districts where the loss of students, and the funding that follows them, are felt more profoundly.

Take Granville County Public Schools (GCS), a district of about 7,600 on the Virginia border.

This month the school board approved a plan to close an elementary school and to consolidate two middle schools, the result of lagging enrollment. [Read more…]

2. When will Republicans’ patience with President Trump run out?

 

Republicans, we need to talk.

Not about the shutdown. I get the ceasefire, I get that the air traffic slowdowns may have finally spooked the president and D.C. Republicans, even if only for a temporary respite.

This is about the bigger picture, not about short-term, beltway battles and shutdowns that may or may not be on the minds of Americans when they go to the polls in 2020 – although I don’t imagine the passage of time will sweeten the memory for Americans who worked weeks without paychecks.

This is about the future of the GOP platform, that grand-old-promise to shrink government, reduce inefficiencies, cut taxes, and preserve the American dream. [Read more…]

3. “The spill was an instant disaster”: Reflections on the five-year anniversary of the Dan River coal ash breach

Until that winter’s day, the 4-foot section of corrugated metal pipe, 48 inches in diameter, had done its job. It swallowed storm water, said to be uncontaminated, that drained from Duke Energy property, chugged the water through its gullet that ran beneath an unlined coal ash basin, and then spewed it into the Dan River near Eden.

But on Feb. 2, 2014, the pipe could take no more.

For more than 50 years, Duke Energy had dumped millions of tons of coal ash into an open, unlined pit at its power plant on the Dan River. On that calm, cloudy Sunday afternoon, as pre-gamers chilled beers and fried chicken wings for their Super Bowl parties, the pipe collapsed. Hazardous material from the basin rushed through the breach, which released at least 39,000 tons of ash and up to 27 million gallons of contaminated water into the Dan River.

At 2 o’clock, a security guard making the rounds had noticed the water level in the 27-acre ash pond had dropped.

At 6:30 p.m., thousands of North Carolinians watched the Seattle Seahawks, led by former NC State quarterback Russell Wilson, win the coin toss to start Super Bowl 48 against the Denver Broncos. Two minutes later, as the Seahawks kicked off, Duke Energy officials were investigating the pipe breach and preparing an EM43 report, used to document emergencies in North Carolina. [Read more…] Read more

Courts & the Law, Defending Democracy, News

School of Government explains how the 9th congressional controversy came to be

Are you still confused about how the 9th congressional district remains without representation in Congress?

The University of North Carolina School of Government has taken a swing at trying to explain “our messy congressional election and how we got here.”

Robert Joyce, a Charles Edwin Hinsdale Professor of Public Law and Government, writes about five threads that are interrelated in the controversy over alleged absentee voter fraud in the 9th congressional district. They are: re-configuring the State Board of Elections; allegations of fraud in the election; how many new elections?; what if the new State Board does not order a new election?; and the power of the United States House of Representatives.

The explanatory article was posted a few days ago, so there has since been a new State Board seated. Gov. Roy Cooper announced yesterday who would serve on the Board and they subsequently met and decided Bob Cordle would be chair and Stella Anderson would be secretary — both are Democratic members.

It’s expected the new Board will meet again next week to work out details of a hearing in the 9th congressional district investigation. Joyce wrote in his first thread explanation that the struggle over control of that Board has nothing to do with the congressional election but has become entwined in it.

The second thread explores the types of fraud irregularities that were reported, and the third thread delves into how many new elections there could be if the Board decides there are enough votes at issue or the irregularities are so that they taint the results of the entire election.

If the State Board does not order a new election at all, Joyce writes about the possible outcomes for the 9th district.

But the order for a new election requires the votes of four board members—four out of the five. It is not beyond imagination that by a three-to-two vote the board finds that there are sufficient grounds to order a new election, but cannot secure the fourth vote to actually order the election.

What happens then? Another entry into unchartered waters. Perhaps the state board would decide that at that point it has done all it can and will issue a certificate of election to Harris. Or perhaps the three-member majority would refuse to do that, leading, it could be, to a lawsuit by Harris for a court order for a certificate of election.

Perhaps the Governor could order a new election. There is a statute that authorizes the Governor to call a new election any time there is a “vacancy.” That usually happens, of course, when a sitting member of the House of Representatives dies or resigns. What about the current Ninth district circumstance? Is there a “vacancy” within the meaning of the statute?

If the new state board issues a certificate of election, then surely there will be no vacancy. What happens if the board does not reach that point for a long time? Is there, at some point, a “vacancy?” More unchartered territory.

Finally, Joyce writes about the power the U.S. House holds in this election — it has the final say.

For now, the House is waiting for the North Carolina process to play out—a new state elections board to be appointed, an investigation to be completed, perhaps new elections to be held, and, eventually a certificate of election to be issued. But, ultimately, the House of Representatives may upend any resolution reached at the state level.

You can read the full report here. The State Board also has a public portal here with documents it has made available throughout the course of its 9th district investigation. And you can read more about the new State Board here.