Courts & the Law, Defending Democracy, News

NC Board of Elections recommends salary increase for executive director

The State Board of Elections wants its new executive director to start her tenure with a raise.

Members voted unanimously Thursday to recommend a salary of $140,000 for Karen Brinson Bell, who will take over at the agency June 1. Kim Strach, who has been at the helm for just over six years currently makes $110,762. The new salary is contingent on approval by the Office of State Human Resources.

Democrats on the five-member State Board ousted Strach last week in an effort, they said, to steer the agency’s focus to election administration ahead of 2020. Republicans had pushed to keep Strach in the position, but were out-voted.

Board Chairman Bob Cordle said when he first took over his role, he was surprised after talking to staff to find out how much Strach made.

“I thought it was horribly underpaid and that she has been for some time,” he said.

He asked Josh Lawson, general counsel for the State Board, to look into salaries and how they might seek an increase for the executive director. Lawson told members for context that the Mecklenburg County elections director made about $30,000 more than Strach.

“Our executive director ought to make at least a similar amount of money as the director of Mecklenburg County,” Cordle replied, proposing that she make $135,000 per year.

Republican member David Black amended that proposal to $140,000 because he thought Strach earned it given the events of the past several months — primarily the absentee ballot fraud investigation in the 9th congressional district.

Lawson told Board members it was highly likely the salary increase would be approved.

Lawson turned in his resignation to align with Strach’s departure. The State Board also voted unanimously Thursday to designate Katelyn Love as acting general counsel, effective at the close of business May 31.

Love joined the agency as special counsel in 2016 and was promoted to the position of deputy general counsel in 2017, according to a news release. She is a graduate of the University of North Carolina at Chapel Hill and Duke University School of Law. She previously served as associate counsel at U.S. Citizenship and Immigration Services.

The State Board also certified the results of the 3rd congressional district primary election, which was held April 30, and unanimously set a one-stop early voting plan for Greene County for the second primary in the same district.

Courts & the Law, Environment

Court of Appeals approves plans for controversial asphalt plant near camp for seriously ill kids

Image: Google maps

In the fall of 2015, two land quality inspectors from the state Department of Environmental Quality drew the short straw. They had to visit the Glendale Springs quarry in rural Ashe County, an operation with a history of compliance problems and a disagreeable owner.

After the inspectors arrived, Danny Cecile, the father of quarry vice-president DJ Cecile, “produced a pistol from his pocket,” according to public DEQ records, and stated “that the pistol was in case any of the inspectors got ‘out of line.’”

The employees completed the inspection, but refused to go back without reinforcements. The lead inspector didn’t report the incident to law enforcement, the documents read, because “he felt like it would just aggravate the situation.”

Environmental and administrative law don’t require you to be pleasant. So when Cecile applied to DEQ to operate an asphalt plant next to the quarry, as long as the facility could comply with state and federal law, there was no legal reason to deny it.

Concerned citizens and the Ashe County planning director, though, fought the asphalt plant — and lost. A three-judge panel from the state Court of Appeals yesterday ruled unanimously in favor of Cecile and Appalachian Materials, allowing the controversial project to operate near the New River, as well as a quarter-mile from a camp for children with serious or terminal illnesses.

The court offered several reasons for the ruling, including that the county planning board was within its authority to overturn the director’s decision. The judges also ruled that the planning director’s cursory approval of plant’s application — submitted before the state’s air quality permit was finalized—was in part, binding.

And because of a state law, passed in 2015, Appalachian Materials can choose which of the county’s Polluting Industries Development Ordinances (PIDOs) it wants to be governed under: A previous one, valid when the company initially filed its permit and before the county enacted a moratorium on PIDOs, or the new, more stringent ordinance, approved after a moratorium was lifted. (See box for timeline.)

“The Court’s reasoning is a stunning piece of sophistry,” said Lou Zeller, executive director of the Blue Ridge Environmental Defense League (BREDL), among the opponents of the project. “The Court has made a serious error in this case. Its procedural legal reasoning may rest upon precedent, but its humanity is hobbled by a blinkered view of what is most vital in this world. Save the children.”

Chad Essick, an attorney with Poyner Spruill, which represented Appalachian Materials, said they are pleased about the decision, and that the facility “is entitled to its local permit.”

It’s uncertain whether Ashe County will ask the state Supreme Court to hear the case. No one from the county returned an email seeking comment.

*****

Since 2006, Camp New Hope has offered a free getaway, with a lodge and outdoor activities for families who have children with life-threatening medical conditions, such as cancer, seizure disorders or cerebral palsy. “Eighty-five percent of our children are in wheelchairs, have feeding tubes are on some type of ventilator and can’t talk,” said Camp Director Randy Brown, in a 2017 letter to DEQ. “A quarter are legally blind. “My children are very, very sick. They come to the camp to get out to nature in a safe and healthful environment.”

Brown’s comments were included in a 2017 letter from BREDL to DEQ. In that letter, Zeller also asked the agency to reopen the permit for further public input. He pointed out that the Division of Air Quality’s modeling had not considered the campers — “vulnerable populations” —in approving the permit.

But even healthy people can be harmed by emissions from asphalt plants. These facilities emit nearly 30 toxic air pollutants — in varying allowable amounts, according to state and federal law — including arsenic, mercury and benzene.

DEQ bases its permitting decisions on whether the plants can meet air quality regulations. But in North Carolina, local governments have the final say-so over the construction and siting of new plants.

Asphalt plants are often located near quarries, which makes transporting the raw material between the two facilities easier and cheaper. Radford Quarries, owned by DJ Cecile, will supply raw material to the nearby Appalachian Materials asphalt plant.

Given Radford Quarries’ history of non-compliance, plant opponents worry the new facility could be operated the same way.

For example, runoff and other sediment from the quarry and mining property could pollute the New River watershed. The quarry, according to DEQ documents from 2015, “has had ongoing compliance issues … for many years.”

Cecile had allegedly begun grading the land for the asphalt plant before receiving state approval to do so. Stormwater run-off, buffers and piping were also non-compliant,” the documents read, adding that, “even when properly installed and initiated, follow-up of state requirements has not happened and conditions have deteriorated.”

However, later inspections from 2017 showed no sediment had entered the waterways, and a Division of Water Resources study showed the quarry had not affected the stream. But DEQ did issue Radford a Notice of Deficiency for grading land outside its mining plan. Radford in response, submitted a change to the plan.

Radford Quarries was issued a Notice of Violation related to stormwater at its Bamboo Road facility in Watauga County. Those violations were subsequently corrected.

If Ashe County does not ask the state Supreme Court to take the case — and  since the lower court’s ruling was unanimous, it isn’t required to do so — then Appalachian Materials will begin scraping the land and building the plant, with its attendant environmental impacts.

And so has ended a convoluted two-year legal battle, which Cecile won without having to fire a shot.

Timeline:
• June 2015: Appalachian Materials applied for a Polluting Industries Development Ordinance (PIDO) permit in Ashe County to build and operate an asphalt plant on Glendale School Road in Glendale Springs. At its peak, the plant would be capable of producing 300 tons of asphalt per hour and 300,000 tons each year.
• September 2015: Ashe County Board of Commissioners adopted a temporary moratorium on the issuance of PIDO permits, which put the plant’s application on hold.
• September 2015: State legislature passes “Permit Choice” law. It provides that “if a [county’s] rule or ordinance changes between the time a permit application is submitted and a permit decision is made, the permit applicant may choose which version of the rule or ordinance will apply.”
• September 2015: Appalachian Materials used the hiatus to apply to the state for its required air quality permit. Over strenuous public objection, the Division of Air Quality issued the permit in February 2016.
• April 2016: Based in part on the moratorium, the county planning director denied Appalachian Materials its PIDO permit. The company appealed to the planning board.
• Summer/fall 2016: While the board was deliberating, the commissioners lifted the moratorium, but repealed the PIDO. It created a new, more restrictive ordinance that would make it more difficult for Appalachian Materials to build its plant.
• December 2017: The planning board overturned the director’s decision, allowing the construction of the plant. A Superior Court judge agreed with the board, and Ashe County appealed the decision.
• 2018: Court of Appeals hears the case.
• 2019: Court of Appeals rules in favor of the planning board and Appalachian Materials.

Courts & the Law, HB2, News

No conclusion in HB2 successor case despite plaintiffs, governor’s proposed agreement

ACLU staff attorney Chase Strangio (right) and client Joaquin Carcaño (left) talk to reporters about House Bill 142 after Friday’s court hearing. (Photo by Melissa Boughton)

Lawmakers do not want Gov. Roy Cooper to agree to allow transgender individuals to use restrooms under executive branch control that match their gender identity.

Cooper and the plaintiffs who are challenging House Bill 142, which replaced House Bill 2, the anti-LGBTQ legislation that became known as “the bathroom bill,” have been trying to enter into a consent decree for almost a year. Judge Thomas Schroeder, a George W. Bush appointee, heard arguments about it Friday.

The agreement would specify that HB142 could not be used to ban people from using restrooms or facilities consistent with their gender identity that are under the executive branch’s control or supervision. It would also allow local governments to interpret their laws to protect individuals from sex or gender identity discrimination.

It essentially codifies an opinion that Schroeder already made in the case. Gene Schaerr, an attorney for the legislative defendants — who intervened in the HB2 and HB142 litigation — said they oppose the agreement, even though they’re not included in it. He cited concerns about ambiguity in the agreement language, issues with federalism and keeping the federal court involved in a state government power struggle and the negotiation process between Cooper and the plaintiffs.

“Our clients care a lot about federalism,” Schaerr said.

Schroeder entertained those concerns and expressed some of his own, particularly in some of the vague language in the agreement, although the plaintiffs and attorneys for Cooper made some of it more specific to try and appease him and the legislative defendants. Schaerr was unfazed by that attempt.

There was no conclusion in the case, something Schroeder strived to make happen given that it’s been going on for three years. He ordered all the parties to work together over the next two weeks and to submit a new consent decree by May 31. He said he hopes everyone can be on board with some type of agreement, but if lawmakers still can’t approve it or just have no position on it, he’ll take up their additional concerns at that time.

If an agreement was approved by the court, it would end the lawsuit, with the exception of some damage claims involving the University of North Carolina — but those can’t be resolved until after the U.S. Supreme Court takes up pending cases involving Title VII and IX issues.

Chase Strangio, ACLU staff attorney for the LGBT and HIV project, said after Friday’s hearing that it was clear lawmakers were not interested in protecting transgender individuals, who are most harmed by HB142.

“People really need protections right now in this state and across the country,” he said. “Obviously, we want people to pass through North Carolina, we want North Carolinians to feel safe and protected by the laws, and so that is really what this is trying to effectuate and resolve this incredibly long-running litigation.”

Strangio said they would keep fighting for transgender rights in the state.

Plaintiff Joaquin Carcaño said all he wants is for transgender people to be protected and to be able to navigate daily life without barriers.

“They continue to put up a fight,” he said of lawmakers.

Courts & the Law, Defending Democracy, News

Democracy NC releases new report detailing impact of early voting uniform hours requirement

Without the last Saturday of early voting, more than half of North Carolina’s 100 counties may lose weekend voting altogether, according to a new report from Democracy NC.

The report, titled “Greater Costs, Fewer Options: The Impact of the Early Voting Uniform Hours Requirement in the 2018 Election,” found that the uniform weekday hours requirements under Senate Bill 325 drained local resources and led many counties to reduce Early Voting sites and weekend voting options in the 2018 midterm election.

The measure requires counties to keep satellite early voting sites open from 7 a.m. to 7 p.m. on weekdays, which massively increased staffing costs. It also explicitly eliminated the popular last Saturday of early voting for all elections after 2018. Legislation was passed just before the election to add the last Saturday back in 2018 only. Democracy NC’s research found that the removal of this popular weekend option in future elections would disproportionately impact young voters, Black and Latinx voters, and voters in rural counties.

Senior Researcher Sunny Frothingham, who authored the report, said the changes under SB 325 not only forced counties across North Carolina to reduce popular polling hours and options in 2018, but also, without legislative changes, will set the stage for more limited access to early voting in 2020’s high-profile presidential election cycle.

“Over the last decade, North Carolina has become infamous for some of the nation’s most harmful voter suppression tactics — including Senate Bill 325, which forced the majority of counties to reduce the number of weekend hours and almost half to eliminate popular voting sites” she said. “Under current law, counties will face the same constraints moving forward, and North Carolinians will lose access to the heavily-used last Saturday in all future elections, including 2020.”

The report acknowledges that 2018 was a high turnout election statewide compared to 2014, but notes that site changes chipped away at county-level performance, especially in rural counties where the distance between voters and early voting sites increased the most.

Other key findings in the report, according to the voting rights organization are:

• Following the passage of SB 325, 43 counties reduced the number of early voting sites offered in 2018 compared to 2014, 51 counties reduced the number of weekend days offered, and 67 counties reduced the number of weekend hours.
• Of the eight rural Eastern counties where a majority of registered voters are Black (Hertford, Edgecombe, Bertie, Northampton, Halifax, Vance, Warren, Washington), four of those counties (Bertie, Northampton, Halifax, and Vance) reduced sites under SB 325, all but Halifax County reduced weekend days, and all eight reduced the number of weekend hours during early voting. None of the eight counties increased sites or weekend options.

Democracy NC Executive Director Tomas Lopez called on the legislature to take immediate action and take up House Bill 893. The 2019 proposal, which was referred to the House Committee on Elections and Ethics Law last month, would restore the early voting law to pre-2013 flexibility, return the mandatory last Saturday of early voting and provide maximum flexibility to county Boards of Elections to design early voting schedules that could vary across satellite sites.

“While uniform voting hours are not inherently negative, as implemented, S325 makes it harder for voters to have their voices heard and for election officials to provide the robust early voting opportunities that North Carolina voters expect and deserve,” he said. “The 2020 election cycle starts early and will involve many more voters than cast ballots in 2018 — it’s time for lawmakers to consider legislation that would give North Carolina’s counties back the flexibility needed to make the best decisions for their resources and voters.”

Read the full report below.



Impact of S325 (Text)

Courts & the Law, News

NC Board of Elections appoints new executive director with party line vote; agency counsel resigns

Kim Strach and Josh Lawson

The State Board of Elections has named Karen Brinson Bell as the new executive director of the agency, expectedly marking the end of Kim Strach’s tenure.

Members voted 3-2 along party lines during a teleconference to make the change and had a contentious discussion, with the two Republicans asserting their support to keep Strach as head of the agency for continuity and public trust. That discussion was interrupted briefly due to a fire alarm at the physical State Board building downtown, and the vote was taken not long after.

Strach will continue her service through the end of May. Bell will move to Raleigh from Charleston, South Carolina to start as executive director June 1.

“Kim has been a great investigator, but we need a change in our focus to election administration moving forward,” said Chairman Bob Cordle.

Shortly after the decision, the State Board’s general counsel, Josh Lawson resigned effective May 31. He wrote in a letter (posted at the end of this article) that no member sought his resignation, but it was clear he didn’t approve of the change.

“Choices shape democracy, and yours have outsized effect in our State,” he wrote. “This agency serves voters best when it chooses accountability over complacency, people over partisanship, and the future over our past. These serious times require nothing less, as you confront real and growing threats to elections security, public trust, and the democratic process.”

It’s not yet clear who will replace Lawson.

Karen Brinson Bell

Brinson Bell currently serves as deputy director of the Ranked Choice Voting Resource Center, a nonprofit organization specializing in ranked choice voting, in which voters rank candidates in order of preference.

Gary Bartlett, who was at the helm of the State Board for 20 years before Strach, runs the organization. It’s not known how she became a candidate for the top job at the State Board or if there was a nomination process.

Brinson Bell, 44, previously served four years as Elections Director for Transylvania County in North Carolina and five years with the NC State Board of Elections voting systems division, according to her online biography. During her tenure, she helped administer instant runoff elections for the City of Hendersonville in 2007 and 2009, a district court election in 2010 and a statewide election for a North Carolina Court of Appeals seat in 2010.

Cordle cited Brinson Bell’s county director experience as part of the reason for her appointment — she is believed to be the first executive director who has previously held the county director title. He said the State Board needs to prepare properly for the 2020 election, adding that some have referred to it as the biggest of a generation.

He went over all the details of what makes elections large undertakings and discussed the level of coordination that has to be maintained between the state and county boards.

“We need there to be a consistency in the way these elections are carried out,” he said. “It’s a large task, and to be a success requires detailed planning, coordination, training, knowledge and focus. I believe with Karen Brinson Bell, we found someone with the experience, skill and expertise needed to make sure that our elections are run smoothly and efficiently as possible.”

Brinson Bell, he added, has had a large variety of election experience and computer software experience.

Cordle also spent some time praising Strach for her work at the State Board. She has been at the helm of the agency for six years but has worked there for two decades. She was appointed to the top job by former Republican Gov. Pat McCrory.

“Now, none of what I’ve said about Karen and our need to change focus at the State Board is to take away from the great work Kim Strach has done in her approximately 19 years at the State Board,” he said.

He described the trying and unusual times Strach had to navigate, including managing with and without a State Board during litigation between Gov. Roy Cooper and GOP legislative leaders about the agency’s structure.

“During all of this turmoil, Kim kept the election ship afloat,” Cordle said.

The culmination of her work, he said, was with the evidentiary hearing in the 9th congressional district in which she presented evidence of “coordinated, unlawful and substantially resourced” absentee ballot fraud. It is reported, he added, to be the only congressional race overturned, and Strach is chiefly responsible for that.

Cordle’s Republican colleagues, Ken Raymond and David Black, also commended Strach for her work on the 9th congressional district investigation and for keeping and maintaining trust with Republicans and Democrats across the state.

“Because of the actions that our Board took regarding the NC09 congressional race, we will be under constant national scrutiny for how we conduct [the 2020] election,” Black said. “As Ken said, Kim has been tenacious in going after both sides when it came to what she believed was breaking the law. In fact, she did not see party, but what she saw was the law.”

He and Raymond both pointed out the political implications of replacing Strach and said there would be public trust lost in that process without a compelling reason for such a big management change at the top.

“This is not a position that should be bounced back and forth like a ping pong ball,” Black said.

Raymond said he did not believe Cordle’s reasons for appointing Brinson Bell weren’t compelling enough and said the decision appeared purely political. He added that the move would send the message that fairness from the executive director’s office is not a priority.

Cordle told him he was entitled to his opinions.

At the end of the meeting, the State Board voted unanimously to make a resolution honoring Strach for her work.

Brinson Bell will oversee about 70 State Board employees, according to a news release. The Raleigh-based Board of Elections is charged with administering elections and overseeing 100 county boards of elections, as well as campaign finance disclosure and compliance.

Her first day on the job will be June 3, and her two-year term will expire in May 2021.

“Our top priorities will be promoting voter confidence in elections and assisting the 100 county boards, the boots on the ground in every election,” Brinson Bell said in the release. “I plan to roll up my sleeves and work with State Board staff to prepare for the important elections ahead.”



Josh Lawson resignation letter (Text)