Courts & the Law, News

Did Hofeller draw NC maps before redistricting process? Judges throw out expert testimony showing he didn’t

A three-judge panel threw out expert testimony Thursday from Douglas Johnson, a witness for the legislative defendants in North Carolina’s partisan gerrymandering trial. (Photo by Melissa Boughton)

In a bombshell decision, a three-judge panel threw out testimony Thursday from an expert witness for GOP lawmakers in North Carolina’s partisan gerrymandering case, and it could have federal implications.

Douglas Johnson, a research fellow at the Rose Institute of State and Local Government in Claremont, Calif., testified that deceased GOP mapmaker Thomas Hofeller’s draft 2017 legislative maps were dramatically different than the maps that lawmakers ultimately enacted.

He was trying to prove that Hofeller hadn’t drawn the majority of the state’s 2017 legislative maps before the public redistricting process took place, a conclusion one of the plaintiffs’ experts presented to the court in the Common Cause v. Lewis trial.

Johnson admitted though, during cross examination, that his research was inaccurate. In the data he used to show big changes to the enacted House map from the draft Hofeller map, he omitted 11 districts in his report that showed almost 100 percent overlap between the two maps. In some instances, he would include districts with low overlap percentages in one county grouping, but not the districts in that same grouping that had a high overlap percentage.

In a similar analysis to maps produced by Common Cause North Carolina, though, Johnson included some of those high overlap districts.

When confronted with the inaccuracies during his cross examination, Johnson could not say what happened. He said he had been working late and had possibly made some coding errors.

“Sitting here today, you cannot tell the court your numbers are correct?” asked Daniel Jacobson, an attorney for the plaintiffs who cross examined Johnson.

Johnson responded, “I can tell you the idea is true.”

His inaccuracies produced overall percentages that showed Hofeller’s draft maps were more similar to the Common Cause maps than they were to the enacted maps.

That finding has been key to many of the legislative defendants’ court filings and has served as a line Republican lawmakers use when talking about the Hofeller files to the press.

Jacobson displayed during cross examination a News & Observer newspaper article quoting Pat Ryan, a spokesman for Senate President Pro Tem Phil Berger making the same claim. Johnson confirmed that he provided the information to Berger’s office and that it was based on his flawed analysis.

“I probably owe Ryan an apology,” he said on the stand.

Johnson also admitted during the cross examination that his findings that Hofeller moved a large percentage of people around in the enacted 2017 legislative map compared to his draft map was based on unweighted population calculations that should have been weighted. That error ultimately produced another unreliable statistic.

Daniel Jacobson, an attorney for the plaintiffs in Common Cause v. Lewis, cross examined an expert witness Thursday for the legislative defendants. (Photo by Melissa Boughton)

Jacobson asked the court to strike all of Johnson’s testimony from his direct examination because of his inaccurate calculations.

“Incorrect numbers can’t possibly go to weight [of this case],” he argued. “They’re just wrong.”

Patrick Lewis, an attorney for the legislative defendants, told the court that if there were some calculation errors, they don’t require a full-scale striking of Johnson’s testimony. He tried to argue for the experts’ findings regarding the Senate to stay in.

The three-judge panel returned to their chambers to consider the arguments and ultimately decided to strike all of Johnson’s testimony comparing Hofeller’s draft 2017 legislative maps to the enacted maps. They also struck testimony comparing Hofeller’s maps to the Common Cause maps.

Johnson has been the only expert the legislative defendants’ have presented thus far in the Common Cause trial who has rebutted the findings that Hofeller drew most of the 2017 enacted maps before the redistricting process.

If that finding remains at the conclusion of the trial, it could open a pathway back to the federal court. The legislative defendants convinced the federal district court in North Carolina v. Covington, a racial gerrymandering case, not to order special elections under new remedial maps in 2017.

They made repeated statements that they had not yet started drawing new districts and needed sufficient time to develop criteria, draft the plans and receive public input.

Legislative leaders didn’t approve a contract with Hofeller until the very end of June 2017, and the joint redistricting committee tasked with remedially drawing new maps didn’t even meet publicly for the first time until July 26 the same year. Hofeller’s digital files — which were turned over by his daughter after his death to the Common Cause plaintiffs — show that he had substantially completed drawing the 2017 legislative plans in June 2017, according to expert testimony.

The redistricting committee met Aug. 4 to discuss potential criteria to be used in drawing the new districts and held public comment during that meeting. Criteria for the mapmaking process was not adopted until August 10 and Hofeller wasn’t notified of it until the next day, according to a court filing from 2017 from the legislative defendants in Covington.

The Common Cause plaintiffs have already accused the legislative defendants of lying to the federal court. If proven, the federal court could sanction the legislative defendants in Covington.

The federal court in Covington ultimately obliged the legislature by not ordering a special election — despite noting in their ruling that they were prepared to. That meant the North Carolina Republican supermajority stayed in place for an extra year.

If the legislature is found to have lied to that court, it could also be important to a separate case in the state Court of Appeals, where the NAACP is challenging the Republican supermajority’s power to two constitutional amendments, one implementing a voter ID law and another implementing a tax cap.

Senate Majority Leader Harry Brown (R-Jones, Onslow) was called to testify in a state partisan gerrymandering trial Thursday. He walked back his prior support for redistricting reform. (Photo by Melissa Boughton)

The legislative defendants in Common Cause put on two other witnesses Thursday. Senate majority leader Harry Brown (R-Jones, Onslow) testified that he represents his Democratic and Republican constituents and tries his hardest to work across party lines within the legislature.

He was questioned during cross examination about his support for redistricting reform when he was in the minority, but said he was just making a statement.

“We all knew at this point that this bill had no chance, that it would go nowhere,” he said of a 2007 redistricting reform measure.

The other witness, Trey Hood, is a professor of political science at the University of Georgia. He continues to offer expert testimony rebutting plaintiff expert findings that the 2017 legislative plans were partisan outliers. It’s not clear if he will testify about the difference between Hofeller’s draft maps and the enacted ones.

The trial is expected to conclude tomorrow. For live updates, follow reporter Melissa Boughton on Twitter.

Courts & the Law, Defending Democracy, News

Report: North Carolina is a positive outlier when it comes to Supreme Court representation

North Carolina Supreme Court

The North Carolina Supreme Court is one of only five in the nation where the percentage of justices of color is higher than the state’s population of people of color.

“There’s a national picture that is quite extreme in terms of benches that don’t reflect the communities they serve, and that has serious implications for the public perception of justice,” said Alicia Bannon, managing director of the Brennan Center for Justice’s Democracy Program. “North Carolina, at least on the measures we’re looking at, is much more reflective of the community than most states.”

Bannon co-authored a report released this week called State Supreme Court Diversity. The authors analyzed the demographics of more than 1,600 people who served as justices in the states’ highest courts between 1960 and 2019.

The North Carolina Supreme Court currently has seven justices, 43 percent of whom are considered people of color, according to the report. The general population of the state is comprised of about 37 percent of people of color. People of color includes individuals who are Black, Asian, Latino, Native American, or multiracial.

Bannon praised North Carolina in a phone interview Wednesday for its representation and said it was also notable the high court has three female justices, compared to 17 states that currently only have one sitting female justice.

North Carolina’s demographics are a stark contrast from the report’s overall national findings.

“Across the country, states’ most powerful courts are overwhelmingly white and male, unlike the communities they serve,” said Bannon. “Our judicial system loses credibility with the public when the judges making the rulings don’t reflect the diversity of the people affected by those rulings. Our courts can’t function without the public’s trust.”

Our courts can’t function without the public’s trust. - Alicia Bannon Click To Tweet

The report states that 13 states have never seated a person of color as a state Supreme Court justice and 24 states currently lack a justice of color on the bench. People of color make up nearly 40 percent of the U.S. population but hold only 15 percent of state Supreme Court seats.

White men now make up less than a third of the U.S. population but more than half (56 percent) of state Supreme Court justices, according to the report. Women, on the other hand, make up roughly half the U.S. population, but hold only 36 percent of state Supreme Court seats.

Bannon pointed Wednesday to two areas that helped North Carolina become a standout state for Supreme Court representation. The first was a history of governors appointing people of color to the bench, which gave them a better chance of winning subsequent elections.

Current state Supreme Court Chief Justice Cheri Beasley — the state’s first Black female Chief Justice — is a good example of that, Bannon added. She was appointed to the judiciary by three different Governors — the District Court bench in Cumberland County by Gov. Jim Hunt, the Supreme Court by Gov. Bev Perdue and now the Chief Justice post by current Gov. Roy Cooper.

She also served on the state Court of Appeals, where she was the first Black woman to be elected to statewide office without having first been appointed by a Governor.

The report also highlights how judicial elections, as compared to appointments, have rarely been the path to the Supreme Court bench for people of color. It documents racial disparities in many aspects of state Supreme Court elections: in comparison to white candidates, candidates of color raise less money, face challengers more often as incumbents and receive less support from special interest groups.

The other factor was North Carolina’s history with public financing for judicial candidates, according to Bannon.

“Generally speaking there’s evidence that access to public financing increases the diversity of a candidate pool,” she added. “To preserve and maintain the diversity that they’re seeing, that public financing would really be a valuable reform to bring back to the state.”

North Carolina had public financing available to judges from 2002 to 2012. It allowed candidates to receive a public campaign grant in exchange for stricter spending and fundraising limits, and it reduced the amount of special-interest cash in state court elections.

The report states that prior research and observations by candidates have suggested that public financing can increase the viability of otherwise qualified candidates who lack access to networks of wealthy donors.

Read the full report below.



2019 07 StateSupremeCourtDiversity (Text)

Courts & the Law, News

Voters appeal three-judge panel decision not to halt voter ID law during litigation

Six North Carolina voters who are challenging North Carolina’s new voter ID law filed a notice of appeal today after a Wake County Superior Court judicial panel denied their request to stop the measure from taking effect during litigation.

Those voters filed a lawsuit the day Senate Bill 824 was enacted, the measure implementing a constitutional amendment that requires a photo ID to vote. They alleged the new law is racially discriminatory and will result in eligible voters being disenfranchised.

They are represented by the Southern Coalition for Social Justice (SCSJ) and had asked the court to block the law from going into effect during the pendency of the litigation, but the three-judge panel stated in their recent ruling that they don’t believe the plaintiffs will succeed on the merits of their case.

The judges dismissed five of the plaintiffs’ six claims in the lawsuit and ruled 2-1 not to halt enforcement of North Carolina’s Voter ID statute until litigation concludes.

“North Carolina’s history of discriminatory voter ID laws, combined with our experience in the March 2016 primary when a similar ID law was in effect, tells us that the Court’s denial of the preliminary injunction will result in widespread confusion and disenfranchisement if left in place,” said Allison Riggs, senior voting rights attorney at SCSJ. “We do not think the majority’s decision was well-founded, based on the extensive evidence presented to the Court, and we are hopeful that North Carolina’s higher courts will agree on appeal. On behalf of Plaintiffs in this case, we will keep fighting to protect their rights and the rights of all North Carolina voters.”

Read the organization’s full news release about the appeal here.

Courts & the Law, News

More restrooms to be open to transgender individuals with lawsuit settlement

Transgender North Carolinians will be able to legally choose the restroom matching their gender identity in more government-controlled buildings under a legal settlement announced Tuesday.

The settlement, part of the ongoing legal fight following 2016’s passage of House Bill 2, applies to public administrative agency buildings controlled by the executive branch. That includes state parks, historic sites and rest stops as well as most administrative offices in the state capital.

The settlement language prohibits the use of HB142 — the successor to HB2 — to “bar, prohibit, block, deter, or impede any transgender individuals from using public facilities under any Executive Branch Defendant’s control or supervision, in accordance with the transgender individual’s gender identity.”

HB142 was always seen as an unacceptable compromise and LGBTQ and became part of the same lawsuit brought by a group of transgender North Carolinians  after the Republican controlled General Assembly passed HB2 in 2016. The bill got international attention and the issue of transgender rights became a major campaign point in Gov. Roy Cooper’s successful campaign against former governor Pat McCrory.

Political pressure — including large scale business boycotts of the state — led to the repeal of HB2. But its successor, HB142, still gave the government the right to decide which restroom transgender people used and barred local non-discrimination ordinances dealing with the issue until the end of 2020.

Last year a federal judge ruled HB142 does not bar transgender people from using public restrooms and other facilities in accordance with their gender identity. Tuesday’s settlement doesn’t settle the question of HB2’s lawfulness during the period when it was made law in North Carolina. That question has been stayed pending several LGBTQ-related employment discrimination cases to be resolved by the U.S. Supreme Court.

Plaintiffs in the suit called Tuesday’s settlement announcement a victory — but an incomplete one.

“After so many years of managing the anxiety of H.B. 2 and fighting so hard, I am relieved that we finally have a court order to protect transgender people from being punished under these laws.” said Joaquin Carcaño, the lead plaintiff, in a prepared statement.

“This is a tremendous victory but not a complete one,” Carcaño said. “While I am glad that Governor Cooper agreed to this settlement, it remains devastating to know that local protections for LGBTQ people are still banned under state law while so many members of our community continue to face violence, harassment and discrimination simply because of who we are.”

Irena Como, acting legal director of the ACLU of North Carolina, said her organization was happy to get some relief for transgender North Carolinians — but emphasized the battle is far from over.

“While this part of the court fight may be ending, so much urgent work remains as long as people who are LGBTQ are denied basic protections from violence and discrimination simply because of who they are,” Como said in a statement.

“The shameful stain of House Bill 2 and harm it caused to so many people will always be part of North Carolina’s history,” Como said. “LGTQ North Carolinians still lack comprehensive, statewide nondiscrimination protections while on the job, patronizing a business open to the public, or simply going about their daily lives.”

Kendra Johnson, executive director of Equality NC, echoed that sentiment in a statement Tuesday.

““This settlement is cause for celebration and a step in the right direction,” Johnson said. “However, it only goes so far to protect the lives and safety of trans people in this state. We must continue to fight for the full repeal of HB 142 and comprehensive nondiscrimination protections for LGBTQ folks across our state and nation. Otherwise, LGBTQ North Carolinians will never truly be safe.”

Equality NC Policy Director Ames Simmons also pushed for a more complete solution.

“Saying that no one can stop you from using the restroom is not the same thing as saying that the state will protect your right to use the restroom,” Simmons sad. “Transgender and gender non-conforming people are incrementally safer from violence and from the health disparities that result from anxiety about whether there are safe restrooms available. However, until the state legislature fully repeals HB2 and HB142, trans people in North Carolina cannot enjoy the peace of mind that local and state government will have our back when we need it.”

Courts & the Law, News

Three-judge panel won’t halt bill implementing voter ID during litigation

A three-judge panel Friday ruled it would not block North Carolina’s latest attempt to require a photo ID at the ballot box.

Six voters filed a lawsuit the day Senate Bill 824 was enacted, the measure implementing a constitutional amendment that requires a photo ID to vote. They alleged the new law is racially discriminatory and will result in eligible voters being disenfranchised.

Those voters — who are represented by the Southern Coalition for Social Justice — had asked the court to block the law from going into effect during the pendency of the litigation, but the Friday ruling states the three-judge panel doesn’t believe they will succeed on the merits of their case.

The decision was made 2-1, with Judges Nathaniel Poovey and Vince Rozier concurring and Judge Michael O’Foghludha dissenting.

“In weighing the equities for and against an injunction, Judge O’Fughludha would hold that the reasonable likelihood of disproportionate impact on minority voters would outweigh the likelihood of actual in-person voter fraud, as the risk of the latter, based on historical data, approaches zero,” his dissent states. “Further, the implementation of photographic voter ID pursuant to the constitutional amendment has already been delayed by further legislation until 2020, and the likelihood of voter confusion between disparate methods of in-person voting in 2019 and 2020 would be obviated by the preservation of the status quo during the pendency of this litigation.”

The three judges did agree to dismiss five of the plaintiffs six claims in the lawsuit. Read more about the case here, and read the full Friday order below.



18 CVS 15292 Order on PrelimInj and MTD 7 19 2019 (Text)