Commentary, Courts & the Law, News

UPDATED: In voice vote, House favors bill to sidestep court ruling on ethics commission/elections board combination

UPDATE (by Melissa Boughton): The House Committee on Ethics and Elections Law gave Senate Bill 68 a favorable review today via a voice vote.

Democrats expressed concern that the bill, an amendment to an unrelated measure titled Student Attendance/Page Program Recognition, was moving too quickly as they had just been given the document at 10:45 p.m. the previous night.

“When we’re dealing with a bill of this magnitude, we should never rush it,” said Rep. Grier Martin (D-Wake).

Rep. David Lewis (R-Harnett), who sponsors the bill, said he’d like to have it passed before the Easter break next week. He said the intent of the bill is to have the Elections and Ethics Boards function as bipartisan as possible.

The difference between SB68 and SB4, which was struck down by the courts about a month ago, is that the eight-member “bipartisan” board would require a 5-member quorum for election issues (SB4 required a 6-member quorum), or a simple majority. Ethics issues would still require a 6-member quorum.

The other difference is that Gov. Roy Cooper would be able to appoint all eight members of the new board with recommendations from the two majority political parties. As the bill is written, individuals registered unaffiliated would not be permitted to serve on the new board.

Democrats at the committee meeting said SB68 was Republicans’ way of bypassing the appeals process of SB4 and accused them of being afraid of losing again in the courts.

You can read more about a three-judge panel’s decision to rule SB4 unconstitutional here.

You can read about SB4 here, and compare it to SB68 here.


A little over two weeks ago, a special three-judge panel of the state Superior Court struck down as unconstitutional legislation enacted during a pre-Christmas special session of the General Assembly that would have merged the state Board of Elections and Ethics Commission into a new, combined state agency called the Bipartisan State Board of Elections and Ethics Enforcement. Among other things, the judges found that the new creation infringed on the Governor’s executive powers because, as an administrative agency, it must be under the Governor’s control and the leaders of the new creation were to be appointed in large measure by the General Assembly.

Today, lawmakers in the House will take up a new bill that’s emerged out of nowhere to take another stab at establishing the new entity. The new bill will be taken up as an amendment to an unrelated measure this afternoon in the House Committee on Ethics and Elections Law. The new proposal appears to vest more appointment powers in the Governor. Whether it would satisfy the court ruling and the demands of the constitution remains unclear at this point. Stay tuned for more updates as the day progresses.

Click here to see the proposed bill.

Courts & the Law, News

Federal judge blocks redistricting law singling out Greensboro voters, rules it unconstitutional

A federal judge issued a partial ruling Monday in favor of the city of Greensboro in a redistricting lawsuit that involves a 2015 controversial law passed by the General Assembly.

U.S. District Court Judge Catherine Eagles also ruled the General Assembly’s redistricting of the Greensboro City Council districts unconstitutional.

She cited the one person, one vote doctrine and said “the evidence here establishes that the North Carolina General Assembly drew Greensboro City Council districts with materially unequal populations in an attempt to maximize success for Republican candidates.”

“Neither the State nor any legislative leaders defended this law in court or disputed the plaintiffs’ evidence, and the primary legislative sponsor refused to testify,” the 27-page court document states.

She enjoined the Guilford County Board of Elections, the defendant in the case, from conducting any elections under the eight-district plan and directed that future elections “shall use the pre-existing statutory and city charter system with five single-member districts and three at-large members, unless and until that system or those district lines are lawfully changed.”

Her first order regarding the 2015 law, which passed despite widespread opposition in the House and only after backroom arm-twisting, prohibits residents of Greensboro from participating in municipal initiatives or referendums.

Eagles wrote in her ruling that the law violates the equal protection clauses of the U.S. and the N.C. Constitutions. She made issued an opinion and order after the plaintiffs, six Greensboro residents and the city, requested a summary judgment.

“The defendant, the Guilford County Board of Elections, takes no position on the constitutionality of this
provision,” the ruling states. “The State has not appeared in this litigation and thus has identified neither a legitimate governmental purpose for the initiative and referendum ban nor a rational relationship between any such purpose and singling out of Greensboro voters. No legitimate purpose or rational relationship appears in the undisputed evidence.”

The undisputed evidence is that the law prohibits the City of Greensboro from changing the form of its municipal government and it does not apply to any other municipality in the state. Of particular issue in the lawsuit is a prohibition on citizen initiatives and referendums that would change the form of city government.

“While the General Assembly has redistricted and reapportioned other cities and boards from time to time, nothing before the Court indicates that the General Assembly has ever before prohibited an existing municipality’s voters from participating in the referendums and initiatives described in §§ 160A-103 and -104,” Eagles wrote. “The same law at issue here also changed the government of the City of Trinity, but the General Assembly did not prohibit the citizens of that city from using initiatives or referendums. The only other similar 2015 session law, which changed the City of Albemarle’s election procedures, did not deprive those citizens of their initiative or referendum rights, either.”

You can read the entire 21-page court document here.

In her second order, she also enjoined the section of the law prohibiting citizen initiatives and referendums.

Greensboro Mayor Nancy Vaughan announced the partial victory on her Facebook page, but withheld comment.

Allison Riggs, Senior Attorney at the Southern Coalition for Social Justice and lead attorney on the case for the individual plaintiffs involves, issued the following statement:

“We are pleased that the court recognized the wrong that would have been done to the City of Greensboro and its residents if this redistricting scheme were allowed to go into effect. We can debate policies and practices, but there are certain rights that should never be denied to anyone in America. One of those is the right to have everyone’s vote have the same weight.

“When the legislature overreached into local politics, it did so with no regard for respecting the people’s right to have their voice heard. Today, the court correctly provided a check for a gross legislative overreach.”

Commentary, Courts & the Law, Trump Administration

Of all the times to do it: U.S. Senate looks to blow up its basic rules to help…Trump

Donald Trump speakingThe latest news from the nation’s capital is that members of the U.S. Senate are, quite remarkably, preparing to blow up one of the institution’s most time-honored rules this week — the 60-vote requirement — to, of all things, aid the objectives of a corrupt and quite possibly illegitimate president. The good people at the Center for American Progress explain in this news release:

Ahead of U.S. Supreme Court nominee Neil Gorsuch’s committee hearing and vote and following the unprecedented number of senators who have come out in opposition to the judge’s nomination, Michele Jawando, Vice President for Legal Progress at the Center for American Progress Action Fund, issued the following statement:

“The Senate should not consider eliminating a long-standing Senate rule just to get the president’s nominee on the Supreme Court. It seems that the nominee, Judge Neil Gorsuch, will not obtain 60 votes in the Senate, but rather than seeking a nominee who could meet this threshold, Republican Senate leaders would rather blow up the Senate rules.

“While the Senate rushes to confirm Judge Gorsuch, the administration finds itself being pulled deeper and deeper into the scandal surrounding the Trump campaign’s possible collusion with Russia. Former national security adviser Michael Flynn—who was allegedly fired for providing misleading information about contacts with Russian officials—has asked for immunity from prosecution in exchange for providing information to investigators. This investigation raises fundamental questions about the president’s legitimacy, and we cannot allow President Donald Trump to make a lifetime appointment to the Supreme Court until these questions are resolved.

“This is not the time to throw out Senate traditions of collegiality and bipartisanship just to get the president’s Supreme Court nominee in place. When Senate Democratic leaders changed the threshold for lower-court nominees in 2013, they only did so after four years of negotiations failed. And they kept the 60-vote threshold for nominees to the highest court in the land. Instead of changing the rules, the Senate should tell the White House to change the nominee to a judge who can receive bipartisan support.”

Courts & the Law, News

BREAKING: 3-judge panel denies Cooper’s request to stop confirmation hearings pending appeal

A three-judge Superior Court panel denied a request Wednesday by Gov. Roy Cooper to halt Senate confirmation proceedings pending an appeal process.

Cooper requested the stay after filing a notice to appeal the panel’s decision that confirmation hearings are constitutional.

The panel’s order denying Cooper’s request Wednesday does not give a reason for the decision.

“Upon careful review of all matters of record and the written submissions of the parties, as well as the statutory and case law cited, the court hereby DENIES plaintiff’s motion for stay pending appeal.”

You can read more about Cooper’s request for stay and notice of appeal here.

Cooper’s office has not yet responded to the news, nor has legislative leaders. Check back for updates.

Courts & the Law, News

Judge helping with caseload of unfilled judicial vacancy in eastern NC set to retire at end of March

There was already a judicial emergency in the federal courts in eastern North Carolina, but things just got a little more dire.

Judge James C. Fox submitted his letter of resignation Monday to the Federal Bar. He was one of three senior judges helping to manage the heavy caseload of a judicial vacancy in the U.S. District Court.

I have enjoyed the humbling honor of serving for over thirty-five years as a federal district judge for the Eastern District of North Carolina. I cannot imagine a finer, more rewarding career. I have been supported by the brightest and most dedicated office staff, law clerks, Clerk’s Office personnel, United States Probation Officers, Deputy United States Marshals and Court Security Officers. It has been an honor to serve alongside my esteemed colleagues on the Federal bench, and to work with hundreds of the most brilliant and zealous lawyers in the country.

My first priority always has been my family, but closely on its heels follows my commitment to duty, excellence and fairness in the administration of justice in the Eastern District of North Carolina. I cannot stress strongly enough what pleasure and professional satisfaction I have enjoyed.

The 88-year judge will retire March 31. You can read his full letter here.

The open seat on the court that Fox was helping out with is the the longest unfilled federal vacancy in the nation. Former President Barack Obama nominated two different women to fill the vacancy and N.C. Sen. Richard Burr blocked both nominations.

It’s now up to President Donald Trump to nominate an individual to fill the vacancy.