Courts & the Law, Defending Democracy, News

NC lawmakers failed to enact anti-immigration legislation, so now U.S. Congressmen will try

Pictured from left are U.S. Sen. Thom Tillis and U.S. Representatives Dan Bishop, Ted Budd and Richard Hudson. They are all North Carolina Republicans.

North Carolina legislative Republicans couldn’t pass a law forcing sheriffs to honor requests from Immigration and Customs Enforcement (ICE) to hold people in jail, so now a group of U.S. congressmen from the state is introducing federal legislation to try and get the job done.

Senators Thom Tillis (R-NC) and Chuck Grassley (R-IA) and Representatives Dan Bishop (R-NC-9), Ted Budd (R-NC-13) and Richard Hudson (R-NC-8) introduced the Immigration Detainer Enforcement Act today, which would “clarify” ICE’s detainer authority and force local law enforcement to comply with their requests to hold people in jail for them to pick up.

The measure would also “incentivize cooperation between law enforcement agencies and DHS through the reimbursement of certain detention, technology, and litigation-related costs,” according to a news release.

“North Carolinians are rightfully disturbed that a handful of local sheriffs are putting politics ahead of public safety by implementing reckless sanctuary policies that release dangerous criminals back into our communities and make it harder for federal law enforcement to do their jobs,” said Tillis in the release. “I am proud to introduce this legislation to eliminate the excuse sheriffs are using to justify why they ignore detainer requests made by [the Department of Homeland Security]. By clarifying their authority and incentivizing cooperation, we can better enforce our nation’s immigration laws and keep North Carolinians safe from dangerous criminals.”

An ICE detainer is a request for local law enforcement to hold individuals they believe are not lawful citizens in jail or prison for up to 48 hours until the federal agency can take custody and begin deportation proceedings. The individuals targeted by detainer requests are typically otherwise eligible for release from jail or prison.

The detainer requests are not judicial orders signed by any court official, and they are not arrest warrants that require any kind of finding of probable cause. Because they are requests, local law enforcement can choose whether to enforce them or not, and most urban areas across the state have chosen to only work with ICE as much as the law requires (which means not volunteering to honor those requests or any others from the federal agency).

Republicans in the General Assembly tried to address the lack of voluntary cooperation among urban sheriffs in the state by passing House Bill 370, legislation that would have punished law enforcement that didn’t honor ICE detainer requests. It was ultimately vetoed by Gov. Roy Cooper and lawmakers have not attempted to override that outcome.

According to the news release from U.S. Republican congressmen, the Immigration Detainer Enforcement Act specifically:

  • Gives explicit authority to the arresting federal, state, tribal, or local law enforcement agency to maintain custody of an illegal immigrant for a period not to exceed 48 hours to permit assumption of custody by the DHS, upon the issuance of a detainer.
  • Allows the federal government to enter into agreements with the arresting law enforcement agency to indemnify these agencies against wrongful detention claims by third parties which resulted from a detainer issued without reason to believe the individual is a removable illegal immigrant. Indemnification will not extend to claims relating to negligence or willful misconduct.
  • Makes jurisdictions ineligible for reimbursement of detention costs if they are certified by the DHS Secretary as being non-compliant with ICE.
  • Jurisdictions that are deemed non-compliant by the DHS Secretary will not receive priority when being considered for funding from the Edward Byrne Memorial Justice Assistance Grant Program and when benefiting from the 1033 and 1122 programs.

They are seven newly-elected African-American sheriffs who have said they are targeted by anti-immigration legislation because of their political ideologies. They have said they aren’t breaking any laws and are focused on public safety for everyone, not just citizens.

Courts & the Law, Defending Democracy, News

Court approves remedial legislative maps, strikes down 2016 congressional maps

A three-judge panel has approved remedial legislative districts that were enacted last month after the last ones were found to be an unconstitutional partisan gerrymander. The same panel, though, delivered news a few minutes later that they would require a new congressional map ahead of the 2020 election.

In the Common Cause v. Lewis ruling, the panel stated that lawmakers’ remedial process comported with their court order requiring they use certain redistricting criteria, not use partisan data and conduct redistricting in full public view.

The plaintiffs had objected to only five county-groupings in the House map, but the judges were satisfied with each, so they did not order that any be redrawn by the referee, Stanford Law Professor Nathaniel Persily.

In the Harper v. Lewis ruling, the same panel ruled that the plaintiffs are likely to succeed on the merits of their challenge that the 2016 congressional map in North Carolina is an extreme partisan gerrymander.

“Quite notably in this case, the 2016 congressional districts have already been the subject of years-long litigation in federal court arising from challenges to the districts on partisan gerrymandering grounds,” the order states. “As such, there is a detailed record of both the partisan intent and the intended partisan effects of the 2016 congressional districts drawn with the aid of Dr. Thomas Hofeller and enacted by the General Assembly.”

The judges noted in the order that the loss to the plaintiffs’ fundamental rights will “undoubtedly” be irreparable if congressional elections are allowed to proceed under the 2016 plan.

The legislative defendants in the case argued to the court that they too would suffer harm if the court issued an injunction, but the panel said voters’ rights were more important.

“Simply put, the people of our State will lose the opportunity to participate in congressional elections conducted freely and honestly to ascertain, fairly and truthfully, the will of the people,” the court document states. “The court finds that this specific harm to plaintiffs absent issuance of the injunction outweighs the potential harm to legislative defendants if the injunction is granted.”

The court invited the plaintiffs in Harper to file a motion for summary judgement in the case and noted that it would provide for an expedited schedule so that arguments could be heard prior to the close of the filing period for the 2020 primary election.

The order indicates that a disruption to the election process need not be necessary if the General Assembly acts on its own initiative “and with all due haste” to enact new congressional districts.

The panel said it does not presume to have any authority to compel lawmakers to draw new districts at such an early stage of litigation, but it noted that the General Assembly recently showed it has the capacity to enact new districts in a short amount of time “in a transparent and bipartisan manner.”

If lawmakers don’t move on their own, the court noted it can move the primary date for the congressional elections or all of the state’s 2020 primaries, including for offices other than congressional representatives.

Read both full orders below.



18 CVS 14001 10 28 19 Order (Text)



19 CVS 12667 10 28 19 Order (Text)

Courts & the Law, News

Order: Hofeller files will remain secret a little longer

A Wake County Superior Court judge has extended the confidentiality of the files of deceased GOP mapmaker Tom Hofeller.

The confidentiality of the documents, known as the Hofeller files, was set to expire at 11:59 p.m. Sunday, but Judge Vince Rozier entered an order Friday extending it to 11:59 p.m. Nov. 4.

Hofeller’s daughter, Stephanie Lizon Hofeller, turned over his electronic files after his death to the plaintiffs in a partisan gerrymandering lawsuit. The confidentiality of those files has been at issue almost during the pendency of that litigation, though 35 specific documents related to North Carolina redistricting in 2017 were released for a trial.

That case is still pending as a three-judge panel reviews remedial maps the General Assembly enacted. In the meantime, Rozier is deciding the issue of whether the rest of Hofeller’s thousands of files will become public.

The same three-judge panel reviewing those maps is also considering now whether to enjoin lawmakers from using the 2016 congressional map in next year’s election. They heard arguments in that partisan gerrymander challenge yesterday.

Read Rozier’s full order below.



18 CVS 14001 Order Ext Confidential Designation 10 25 19 (Text)

Courts & the Law, News

Judges weighing initial arguments to strike down 2016 congressional map ahead of 2020 election

Judges Alma Hinton, Paul Ridgeway and Joseph Crosswhite listen to arguments Thursday over a congressional partisan gerrymandering challenge. (Photo by Melissa Boughton)

With just five weeks to go until congressional candidate filing opens for the 2020 election, a three-judge panel is considering throwing the 2016 congressional electorate map out and ordering new districts.

The move would be a bold one from a state court given upcoming election deadlines, but the plaintiffs in Harper v. Lewis argued Thursday that the harm North Carolina voters would suffer if they had to vote under that map would be too great not to act.

“Legislative defendants in their brief do say one thing that plaintiffs agree with,” said attorney Stanton Jones at the hearing for a preliminary injunction. “They say North Carolina’s voters deserve better, and they do. They deserve better than these maps. They deserve better than being treated like pawns in some cynical, partisan game.”

The plaintiffs argued that it is exceedingly clear that the 2016 congressional map is an extreme partisan gerrymander — legislators themselves admitted it and adopted specific partisan criteria to draw the plan — and that based on the ruling in Common Cause v. Lewis, it violates the North Carolina Constitution.

Common Cause v. Lewis is a separate partisan gerrymandering case in which the same three-judge panel in Harper — Judges Paul Ridgeway, Alma Hinton and Joseph Crosswhite — struck down the 2017 legislative maps because they unfairly disadvantaged Democratic voters. They are still reviewing remedial maps to decide if they pass muster.

Harper is a “totally different” case, but poses the same constitutional violations, according to the plaintiffs. In addition to lawmakers admitting the 2016 plan is a partisan gerrymander, there is a robust record in the federal court from previous litigation that outlines the facts of most of the case.

Kate McKnight, an attorney for legislative defendants, argued Thursday that a court should not throw out the 2016 congressional map before the 2020 election. (Photo by Melissa Boughton)

Kate McKnight, an attorney for the legislative defendants argued that the plaintiffs delayed in filing the lawsuit and that the election deadline is too tight, so a preliminary injunction is “categorically unavailable.”

“No court has done what plaintiffs are asking you to do, no matter how they slice the arguments, no matter how they slice the cases,” she said.

She said that the plaintiffs could not point to a single case where a court allowed a preliminary injunction so close to an election because of the serious disruption it would cause.

When Judge Ridgeway asked about the extent to which the underlying federal record would be available and help to expedite the case, McKnight contended that it was not substantial enough to make a ruling on.

Similarly, John Branch, an attorney for intervenors in the case — three Congressional incumbents in the next election — argued that the 2020 election had already started. He said his clients have spent time and money campaigning in their respective districts and that tossing the map out now would harm them and confuse their voters.

“There’s a reason why court after court this late in the election cycle has refused to allow injunctions,” he said.

In an unusual turn at the hearing, Special Deputy Attorney General Paul Cox said the State Board of Elections’ position on the matter was that an injunction would be appropriate in the case. He told the court that when the law is applied to the underlying facts of the case, they believe it will show the 2016 congressional map violates the state constitution.

Katelyn Love, general counsel for the State Board, said members did not decide on a stance at a previous closed session meeting, but rather the Attorney General’s Office represents them. Neither the State Board nor its representation took a stance in the Common Cause v. Lewis case, and in the previous Rucho v. Common Cause case, their stance was in line with the legislative defendants’.

Cox urged the court to move quickly, noting the State Board’s drop dead deadline for new districts would be Dec. 15, barring any complications.

The three-judge panel took arguments under advisement, but Ridgeway noted that the parties should be hearing from them “shortly,” given the time sensitive nature of the case.

Courts & the Law, News

House members wade into nonpartisan redistricting reform as session winds down

In the waning days of the legislative session, members of the House Redistricting Committee met Thursday morning to consider a trio of bills intended to make the drawing of electoral lines less partisan in the future.

Rep. Chuck McGrady (R-Henderson), a primary sponsor of H69 and H140, acknowledged constituents clearly have lost trust in the current map-making process.

“I heard from three different people yesterday – ‘I just want to get the legislature out of redistricting’ – Well that’s not gonna be possible unless you pass the constitutional amendment,” explained McGrady. “At this point and time, our constitution provides that our legislature has that role.”

Another challenge, according to McGrady is ensuring third party candidates will have a voice in developing a nonpartisan redistricting process.

“I know a lot of my colleagues do not believe there is any such thing as an unaffiliated voter these days, and so trying to figure out how you set up a commission or a process that engages unaffiliated voters or minor parties is tough.”

Rep. Pricey Harrison (D-Guilford) used the opportunity to urge the committee to also look at House Bill 827, which would establish a North Carolina Citizens Redistricting Commission.

That Commission would ensure greater input by requiring lawmakers to hold at least 10 public hearings across the state before a preliminary plan could be released. Under HB 827, the new commission would also be subject to the state’s Public Records Act.

“Our purpose here is to build trust,” said Rep. Joe Sam Queen (D-Haywood), who urged his colleagues to be open to looking at other bills and best-practices.

Rep. David Lewis (R-Harnett), chair of the House Redistricting Committee said while it was premature to suggest they would be ready to vote on a final bill by the end of November, he would take all their concerns under advisement.

“We’re trying to find a system that works a little bit better than it has in the past,” he said.