Courts & the Law, Defending Democracy, News

Bipartisan group of former governors calls on court to ‘root out’ partisan gerrymandering

From left, clockwise: Governors Jim Hunt, Jim Martin, Mike Easley and Bev Perdue.

A bipartisan group of former North Carolina governors filed a court document today asking the three-judge panel in a partisan gerrymandering to root out the destructive practice.

The governors who filed the amicus brief are James B. Hunt Jr., who served from 1977 to 1984 and again from 1993 to 2000; James G. Martin, who served from 1985 to 1992; Michael F. Easley, who served from 2001 to 2008; and Beverly E. Perdue, who served from 2009 to 2012. Martin is a Republican and the others are Democrats.

Amici served as Governors of North Carolina for 36 straight years,” the document states. “During that time, we experienced highs and lows in the functioning of state government. The highs came when members of different political parties worked together to move our State forward, and when all three branches respected the separation of powers at the core of our constitutional system. The lows came when progress took a back seat to partisanship, and when the legislature sought to expand its own power at the expense of the executive and judicial branches.”

Former Gov. Pat McCrory is noticeably missing from the filing, despite supporting redistricting reform in the past. The Republican served the state from 2013 to 2017.

Post-trial briefs are due tonight by midnight in Common Cause v. Lewis. The two week-long trial ended almost two weeks ago, and it could take weeks or even a month for the three-judge panel to issue a decision in the case.

The plaintiffs asked the court to throw out the 2017 legislative maps that were used in last year’s election and could be used again in 2020. The plan to also ask the court not to allow lawmakers to redraw those maps after violating the public’s trust multiple times.

GOP lawmakers contend that partisan gerrymandering is not illegal and that the maps they produced — as part of a remedial process to correct maps that were racially gerrymandered — were not extreme outliers. They believe that since the U.S. Supreme Court declined to get involved in the issue, the state courts should to.

The former North Carolina governors disagree. The brief they filed today says the state courts “should play their essential role here and defend the North Carolina Constitution against partisan gerrymandering. It is particularly critical for our state courts to act in this instance because the other branches cannot or will not stop partisan gerrymandering,”

Democrats controlled the legislature when Martin, a Republican, was in office. Still, he said, they worked together on many important initiatives despite very strong differences on how the state government should operate.

“We found common ground and even led the nation in manufacturing while I was in office,” he said in a news release. “We had bipartisanship when we extended I-40 across the state. We both pushed for improvements in education, even though we had many differences. The current partisan gerrymandering impedes our ability to work together and to uphold good government.”

The three former Democratic governors spoke in the same release about how partisan gerrymandering hurts separation of powers and how advanced redistricting technology “let the legislature run roughshod over the other two branches of government.”

“A separation of powers, as defined by our state constitution, fosters a healthy give-and-take among all three branches,” Hunt said. “Partisan gerrymandering breaks that system, regardless of which party holds the majority. It skews our system of governance by discouraging compromise, increasing divisiveness, dissuading capable citizens from seeking office, and eroding the faith our citizens have in our government.”

Easly echoed those sentiments and said if the legislature won’t fix the problem, then the courts have to. Perdue said it was distressing to see how partisan gerrymandering has unfolded in the state’s history.

“We’re seeing the evidence today of how divisive it is when one party seeks to shut out the voices of the voters,” she said. “It eliminates competitive elections, poisons our politics, and corrupts our system of government.”

Read the full amicus brief below.

Common Cause v Lewis Motion and Brief of Former NC Governors (Text)

Courts & the Law, Defending Democracy, News

Board of Elections vote to rescind certification delay fails; next meeting scheduled

A North Carolina State Board of Elections motion to rescind members’ votes Monday night related to voting systems certification failed Thursday after a tie-vote following Chairman Bob Cordle’s resignation for telling an inappropriate joke at an elections conference earlier this week.

The Board had voted Monday to delay certification of voting systems ahead of the 2020 elections so that it could adopt stricter criteria about markings on paper ballots, but Republican member David Black said he misunderstood what he voted for that night and he presented a motion Thursday to rescind it.

He said at the meeting Thursday that there was a sense of urgency to move forward with the certification process without delay because some counties needed to prepare to purchase new systems before theirs are de-certified at the end of the year. The machines that will become de-certified will no longer be able to be used in elections.

Black said it would also be unfair to the three vendors whose machines were under consideration for the Board to postpone the process.

Stella Anderson, a Democratic member who acted as Chairman solely for Thursday’s meeting, stood by her Monday motion to adopt the stricter criteria. She said if the Board thought the criteria was a good idea to have, then they should implement it for this certification process.

The certification requirement she proposes the Board consider is: “an electronically assisted marking device or other ballot marking equipment shall produce human readable marks on a paper ballot. A voter must be able to identify his or her intent as evidence by the mark on the ballot.”

The Board vote was tied — Anderson and fellow Democrat Jeff Carmon voted not to rescind Monday’s vote and Republican members Black and Ken Raymond voted to rescind the vote. The motion to rescind failed without a majority vote.

The Board will meet at 1 p.m. Aug. 23 to consider the stricter voting systems certification requirement and other matters. They will hear public comment at that meeting.

Voting rights advocates have been encouraging the Board to certify hand-marked paper ballots to ensure the most secure elections in the future. Several of them were at the Thursday meeting, though there was no public comment.

It remains unclear when Gov. Roy Cooper will appoint a new chairperson to the Board.

Courts & the Law, Defending Democracy, News

ICYMI: Board of Elections chairman resigns after misogynistic joke; voting systems vote could be up in air

The Chairman of the North Carolina State Board of Elections resigned Tuesday after backlash from a joke he made at a conference earlier this week comparing women to cows that refuse sex.

Bob Cordle, a Democrat appointed to the helm by Gov. Roy Cooper, tendered his resignation effective immediately. He is the second Cooper appointee to resign amid criticism about their behavior — Andy Penry left the post after making critical comments about President Donald Trump online.

“I sincerely apologize to those who heard my joke at the elections conference on Monday and all those affected by my words,” Cordle said in his resignation letter. “I thank you for the privilege to serve my state and the citizens of North Carolina in this important position and wish my fellow board members, Executive Director Brinson Bell and State Board staff success in upcoming elections.”

WRAL first reported the story, and Wake County Board of Elections member Gerry Cohen, who was at the elections conference Cordle spoke at, told the TV station his remarks were “an extremely lengthy dirty joke” that was “misogynistic and wildly inappropriate for a high-ranking state official to tell … to kick off a training session of 600 election officials and administrators.”

Cooper, who accepted Cordle’s resignation Tuesday, will appoint the next Chairman, but it’s unclear how soon. Whomever takes over will be the fourth chair of the Board in eight months, since the structure changed after litigation.

Cooper’s spokesman, Ford Porter, thanked Cordle for his service in an emailed statement to the media.

“The State Board of Elections needs to continue its important work without distraction to ensure the integrity of our electoral process,” he said.

Cordle’s departure comes as the State Board is set to make a decision about certifying voting systems ahead of the 2020 elections. He had voted against postponing the decision on which systems to certify so that the Board could adopt stricter requirements to bolster election security.

It was a 3-2 vote Monday night, but the Board gave notice Tuesday of another planned meeting for Thursday morning to rescind that vote. Cordle said in response to the course reversal that fellow Board member David Black, a Republican, had misunderstood the repercussions of voting for the motion and wanted to instead proceed with the certification process.

Without Cordle’s vote at the meeting, the Board could be deadlocked in its next decision about certification.

The meeting is scheduled for 11 a.m. Thursday in the boardroom on the 3rd Floor of the Dobbs Building, 430 N. Salisbury Street, in Raleigh. Members of the public can attend in-person or listen to audio of the meeting by calling 213-929-4212 (code 757-613-568).

Read Cordle’s letter of resignation below.

LetterofResignation Robert Cordle1 (Text)

Courts & the Law, Defending Democracy, News

Democracy NC: Tell Board of Elections to vote for paper ballots

The North Carolina State Board of Elections is set to decide tonight whether it will continue to certify touch-screen voting systems or return to analog paper ballots.

Voting rights groups are urging the Board to return to paper for a number of reasons, but the big one being security issues.

“Specifically, while a new generation of touch-screen machines known as ballot-marking devices (BMDs) improve on the touchscreen systems currently used in parts of North Carolina, we are concerned that these machines raise a new set of security and usability challenges,” states a Democracy NC web page. “We have urged the State Board to to limit touchscreen BMDs for use with voters with accessibility needs and certify only those machines that tabulate hand-marked ballots — the sort of system used in much of the state.”

About one-third of the state uses touch-screen voting. The certification of new voting systems would empower the 100 county boards of elections to choose equipment that best serves their voters in 2020 and beyond.

Some voting machines used in North Carolina are more than a decade old.

The meeting tonight is a continuation of one from Sunday night. The Board had postponed its decision to tonight, and will choose from three vendors. Read more information about it here, and see agenda items here.

The public can attend the meeting, which starts at 7 p.m. in the Triangle Ballroom at Cary Embassy Suites, 201 Harrison Oaks Blvd., Cary, 27513. They can also listen to proceedings by calling 914-614-3221 (code 944-047-563).

Democracy NC is encouraging North Carolinians to also reach out to the Board ahead of the meeting to urge them to vote for a paper-ballot system. Read more about how to do that here.

“This is important because when it comes to machines, we care about access, security, and confidence,” the organization’s website states. “Voters deserve election infrastructure they can trust. As next year’s elections approach, public interest and concern in systems especially and security practices generally will only increase.”

Read NC Policy Watch tomorrow afternoon for an update about the vote.

Courts & the Law, News

Conclusion of partisan gerrymandering trial ‘key first step’ to getting fair maps

A Wake County Superior Court three-judge panel is deliberating now after a two-week trial about whether North Carolina’s 2017 legislative maps are unconstitutional partisan gerrymanders. (Photo by Melissa Boughton)

Two weeks of evidence about whether North Carolina’s 2017 legislative maps were intentionally gerrymandered for partisan purposes ended Friday, and the plaintiffs in the case plan to ask a three-judge panel not to give lawmakers another round at the drawing board.

“It’s because of this series of what we believe to be violations of the public’s trust that we’re going to ask this court to not only strike these maps, but to not give the legislature the opportunity to redraw them,” said Daniel Jacobson, an attorney for the plaintiffs in Common Cause v. Lewis.

All of the plaintiffs’ attorneys spoke briefly after the conclusion of the trial. Jacobson pointed out that the legislative defendants in the case did not successfully refute evidence they put on that the late GOP mapmaker, Thomas Hofeller, drew 95 percent of the Senate plan before the public redistricting process took place and 90 percent of the House plan.

An expert witness for legislative leaders tried to show that claim wasn’t true, but his analysis was so flawed, the court threw out his testimony relating to Hofeller’s draft maps and the legislature’s enacted maps.

Jacobson said legislators lied to a federal court about not having drawn the plans and convinced them not to hold a special election, then lied to the public about its redistricting process — the maps were nearly completed the whole time.

“The legislature simply cannot be trusted to again have another opportunity to draw these maps again, and the courts should do it itself,” he said.

Daniel Jacobson, an attorney for the plaintiffs in a partisan gerrymandering trial, said he plans to ask a court not to let North Carolina lawmakers draw another map if they prevail. (Photo by Melissa Boughton)

Lawmakers have denied lying to the federal court.

Phil Strach, an attorney for the legislative defendants in Common Cause did not comment Friday after the trial and instead referred questions to his clients.

Senate President Pro Tem Phil Berger, House Speaker Tim Moore, Rep. David Lewis (R-Harnett) and Sen. Ralph Hise (R-Mitchell) did not respond to an email seeking either comment or the closing arguments Strach would have made (all parties agreed to waive closing). They did, however, send Strach’s closing arguments to other media outlets.

The legislative defendants’ last two expert witnesses, Michael Barber, a political scientist at Brigham Young University, and Thomas Brunell, a professor at the University of Texas at Dallas, tried to refute several of the plaintiffs’ expert reports.

Brunell said it was great so many scholars were weighing in, but noted that much of their relatively new research was not yet ready for “prime time.” He added that there was absolutely no way of knowing what was in Hofeller’s mind when he drew North Carolina’s maps, so it wouldn’t be possible to prove intent.

Thomas Brunell testified last week at a partisan gerrymandering trial on behalf of Republican legislative defendants. (Photo by Melissa Boughton)

“There’s no way of knowing why it’s this way,” he said.

Barber spoke on the stand about how it would be difficult to measure North Carolina’s true electorate ideology, and that conclusions made by the plaintiffs’ experts about it were insufficient.

During cross examination, Barber was asked what he would tell a student if they asked if partisan gerrymandering was bad for American democracy. He responded that the issue is complicated and he would say there are a number of factors that go into such a conclusion.

When asked the same question about his response to an 8-year-0ld if they asked him if partisan gerrymandering was bad for democracy, Barber balked.

“I think this is a ridiculous question,” he said. “I don’t interact with a lot of 8-year-olds, so I’m not sure about their level of political information. I would probably tell the 8-year-old that there is interesting research in political science that they should read to assess these conclusions, and that when they’re grown up they should take my class.”

The plaintiffs’ attorneys criticized the legislative defendants’ defense after the trial.

“They didn’t have a single fact witness get up in trial and say, ‘we didn’t do it,'” said Stanton Jones. “No one came into court to deny that what happened here was that Dr. Hofeller, the mapmaker, working at the direction of the legislative leaders in the General Assembly, gerrymandered the map as best as he absolutely could to advantage Republicans and to minimize the representational rights of Democrats. No one came in to court over the past two weeks to deny that it’s exactly what happened, and it is.”

He added that none of the legislative defendants’ experts provided any evidence to show North Carolina’s 2017 legislative maps were anything other than extreme partisan gerrymanders.

“The Republican legislative leaders will predictably ask the courts of this state to do what the U.S. Supreme Court has recently done, which is to throw up its hands and to say ‘partisan gerrymandering in this extreme form may be unfair, it may be discriminatory, it may be anti-democratic, it may be unconstitutional, but we’re just not going to do anything about it,'” Jones said.

It could be weeks or even upward of a month or longer before the three-judge panel — Judges Paul Ridgeway, Alma Hinton and Joseph Crosswhite — make their decision in the case. Post-trial briefs are due Aug. 7.

Whatever the outcome in Wake County Superior Court, either losing party will almost certainly appeal to a higher court, and eventually, the North Carolina Supreme Court.

Bob Phillips, Executive Director of Common Cause North Carolina, hopes the state will finally be pushed into passing redistricting reform. (Photo by Melissa Boughton)

Bob Phillips, Executive Director of plaintiff and redistricting reform group Common Cause North Carolina, said he believes the partisan gerrymandering case to be the most consequential and significant redistricting trial in the history of the state.

“What’s at stake is ending partisan gerrymandering once and for all in North Carolina,” he said after the trial. “I personally believe we are on the path to doing that. And what’s at stake for every citizen in North Carolina is fair maps. That’s what we want. … This is a key first step.”