Courts & the Law, Defending Democracy, News

Hofeller files: Lawmakers deny mapmaking misconduct in latest court filing

GOP legislative leaders are denying “inflammatory allegations” in their latest court filing in a state partisan gerrymandering case that they had a voting map mostly completed before beginning a public redistricting process to remedy racial gerrymandering.

The motion was filed Monday to ask a three-judge panel for direction after the plaintiffs in Common Cause v. Lewis filed a motion alleging that lawmakers lied to a federal court to ask for more time to draw the 2011 North Carolina legislative maps.

“One might expect that, with such a bald allegation of misconduct by elected leaders, plaintiffs would have some strong support for it, some smoking gun, or admission,” states the motion filed by the legislative defendants. “But, in fact, they have nothing of the sort. They present no email or other correspondence between Dr. Thomas Hofeller, the legislature’s map-drawing consultant, and any legislator indicating that any legislator knew of Dr. Hofeller’s map-drawing activities as of June 2017.”

The plaintiff’s cite Hofeller’s files — which were turned over to them after his death by his daughter — but they do not include the specific evidence to which they referred.

The legislative defendants state that they believe the plaintiffs in the state case put their false allegations into a court filing to score political points. They ask the court to order the plaintiffs to be divested of the Hofeller files, assess the degree of harm present in the case and possibly disqualify their attorneys.

“It is the Court’s role to take charge of this proceeding and the lawyers practicing before it,” the document states. “The Legislative Defendants therefore agree that direction is appropriate. Plaintiffs are using this proceeding as a platform for baseless political invective. And they are in possession of documents belonging to others and containing express privilege designations through apparently unethical means.”

There has not yet been a hearing scheduled in the case, but the three-judge panel has been asked for guidance from both sides. Read the full motion from the legislative defendants below.



Response to Motion for Direction Common Cause v Lewis June 6 2019 (Text)

Courts & the Law, Defending Democracy, News

Brennan Center gives glimpse of possible SCOTUS partisan gerrymandering outcomes

As court watchers and voting rights organizations alike eagerly await a partisan gerrymandering decision from the U.S. Supreme Court, the Brennan Center for Justice is offering a preview of what could happen.

Justices heard arguments in March addressing three challenges to congressional maps — two to the 2016 GOP-drawn map in North Carolina and one to a Democratic-drawn map in Maryland. It’s expected the high court will release an opinion in the next two weeks. A decision could have far-reaching impacts for map-making processes across the nation.

The Brennan Center has advocated in its court filings regarding the cases for justices to rule that extreme partisan gerrymandering is unconstitutional, set out a clear legal standard for determining when a map is unconstitutional, and strike down North Carolina and Maryland’s redistricting plans.

Tom Wolf, counsel with the Brennan Center’s Democracy Program, said though that’s not the only way the cases could turn out — there are many potential outcomes.

But that is not the only way these cases could turn out. In fact, there are many potential outcomes. Here are five of the more likely ones and what they could mean for the future of fair maps, per Wolf:

Scenario 1: A majority of the court endorses one of the legal standards that plaintiffs have offered and strikes down at least one map.

In this scenario, the court would rule, first, that one of the legal standards that the plaintiffs, on behalf of voters, used to challenge their state’s map is the right one and, second, that at least one of the maps at issue is unconstitutional. This would be the fastest route to relief for voters: any map that the court strikes down will be sent off to the legislature to be redrawn, with the resulting map potentially in place well ahead of the next election — the 2020 primaries. Any map the court doesn’t strike could be sent back down to the trial court for more work. That case would still have a chance for more Supreme Court review before 2020. But the time window would be narrow, requiring the case to move significantly faster than is normal.

Scenario 2: A majority of the court endorses a legal standard closely tied to the facts of one of the two cases and strikes down that state’s map.

In this scenario, the court would announce a new legal standard that is closely tied to the egregious facts of one of the cases. For instance, the justices could rule in the North Carolina case that a constitutional violation occurs when (a) the mapmakers expressly intended to create and entrench a seat advantage that was statistically highly unlikely to achieve accidentally, and (b) succeeded in doing so. Under this scenario, the case that matches these facts would end with a win for voters and a new map drawn in time for 2020. The court could send the other case back down for more fact-development work in the trial court, again with a narrow window for Supreme Court review in the fall.

Scenario 3: A majority of the court announces a legal standard that we haven’t yet seen and sends both cases back down for more work in the trial courts.

In this scenario, the court would announce a legal standard that departs drastically from the standards that are already in play, perhaps making relevant certain legal issues and facts that the courts and the challengers hadn’t previously considered. Both cases would go back down to the trial courts for more fact development and legal briefing in light of this new standard, with a narrow opportunity for the justices to weigh in again next term.

Scenario 4: A majority of the court neither agrees on a legal standard, nor decides to foreclose federal courts’ consideration of future partisan gerrymandering claims.

In this scenario, the court would essentially maintain the position it has held since it issued its 2004 opinion Vieth v. Jubelirer. There would be neither enough votes to set a legal standard, nor enough to end federal partisan gerrymandering litigation altogether. The court would dismiss both the North Carolina and Maryland cases. This ruling would represent another punt on the major constitutional issue and potentially delay any further litigation until after the next round of mapping is completed in 2021.

Scenario 5: A majority of the court declares partisan gerrymandering claims can’t be heard in federal courts.

In this scenario, the court would rule that federal courts are not capable of deciding partisan gerrymandering claims and thus should not hear them — in legal parlance, declaring these claims “non-justiciable.” The court would undo the North Carolina and Maryland voters’ victories in the trial courts and terminate their cases. This ruling would result in the federal courts being shut completely to these kinds of claims. The court came close to a ruling of this kind in Vieth, with four justices, led by Justice [Antonin] Scalia, contending that partisan gerrymandering claims were non-justiciable.

Bonus: Michigan, Ohio, and Wisconsin

North Carolina and Maryland aren’t the only partisan gerrymandering cases in the federal courts right now. There are also challenges in Michigan and Ohio — which both resulted in wins for voters after trials — as well as Wisconsin — which is set for trial in July. The Supreme Court’s opinions in North Carolina and Maryland will be the new law of the land and will govern all three of the remaining cases.

What happens to those cases will depend on the court’s ruling. If the court sets a legal standard for partisan gerrymandering cases, the Justices could well send Michigan and Ohio back to the trial courts for more proceedings under that standard. And the standard would shape the Wisconsin case by determining what the plaintiffs would have to show at trial to win. If the court closes its doors to gerrymandering claims, all three of these cases would be dismissed and the voters’ recent victories in Michigan and Ohio undone.

Courts & the Law, Defending Democracy, News

NC Sheriffs’ Association changes stance on anti-immigration bill to support harsher version

The North Carolina Sheriffs’ Association has backed down from its opposition of House Bill 370, an anti-immigration measure drummed up by Republican legislators who are using the Trump administration’s rhetoric to try and force law enforcement into working with U.S. Immigration and Customs Enforcement (ICE).

A Senate Rules committee heard an updated version of HB 370 yesterday but did not vote on the measure. It was referred to the Senate Judiciary committee, and if it gets through there, it will be re-referred to Senate Rules.

Changes to the bill were made after some lawmakers agreed to work with the Sheriffs’ Association and they crafted an alternative to the initial proposal, which would have punished law enforcement that didn’t honor ICE detainer requests with a hefty fine.

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).

The Sheriffs’ Association initially opposed HB 370, in part, because it infringed on the constitutional right of sheriffs to make law enforcement decisions for the communities who elected them.

A memo about the new version of the measure states that it “is designed to protect the 4th Amendment due process rights of the person in custody while providing maximum public safety for the community.”

The new version of HB 370 extends the time a person can be held when an ICE detainer is in place from 48 hours to 96. It also removes some liability from sheriffs and law enforcement officials across the state who honor ICE detainers and instead makes judicial officials in charge of whether a person will be ordered to be held in custody. Though the way the law is written, there is no room for discretion — those officials have to order someone to be held in custody if their identity matches the ICE detainer request.

Instead of facing a fine, the new version of the measure would allow for law enforcement officials to be removed from office by a superior court judge if they fail to comply with HB 370.

The Sheriffs’ Association memo doesn’t address that portion of the bill. It does state though that the 96-hour time period in the bill reflects the realities of law enforcement operations. It also states that its formal position on the new version of the bill is that it “provides an appropriate and careful balance under the Constitution for the rights of the accused and for the public safety of our communities.”

Not all sheriffs agree with that position. Several remain opposed to the bill and remain concerned about the public safety implications of forcing law enforcement to work with ICE, and in some cases, do their jobs for them.

A couple sheriffs who oppose the bill spoke out at yesterday’s Senate hearing. Others have shown their disapproval through other avenues.

This week Guilford County Sheriff Danny Rogers withdrew his support for the Association’s proposal. He said a legal review of the policy left his department with constitutional concerns.

The move won Rogers praise from immigrant groups and advocates. It also got him plaudits from an unexpected source: BJ Barnes, the long-time Guilford sheriff he defeated in November.

The two men have had few kind words for each other since election day, sparring in the media and making cross-accusations on social media.

But in a Wednesday Facebook post, Barnes, once one of the most popular Republican sheriffs in the state, explained why he too opposes both the proposed bills and the Sheriffs’ Association’s alternative proposal.

“Before anyone starts thinking I’ve gone soft on illegal immigrants who have entered this country illegally and stayed, that IS NOT the case,” he wrote. “What I am and what the attorneys are is VERY STRONG on the Constitution, specifically the Fourth Amendment. A few of you in prior post have said the Constitution does not apply to those here illegally, that is not the case. It is applicable to everyone on American soil, no matter how they got here.

“Now the legislation proposed is the same as the rulings put out by ICE that says the Sheriffs office who holds prisoners longer than law allows without proper judicial paperwork, ie warrant will be immune from civil liability meaning you the taxpayer gets sued. It has already happened across the country and others have lost millions. They, being legislators or ICE, cannot protect a county from a lawsuit if they break the law.”

Barnes went on to disparage congressional Democrats for not helping resolve immigration issues on a federal level. He also — in his signature sly, combative style — congratulated Rogers on taking his advice.

But the olive branch was the first since Rogers was one of a wave of black, Democratic sheriffs to sweep seven of the state’s largest counties in the last election, displacing some of the state’s most prominent white Republican sheriffs. Rogers was one of five sheriffs in that sweep to become his county’s first ever black sheriff.

It was that sweep — and those sheriffs subsequent unwillingness to voluntarily work with ICE — that precipitated the initial HB 370 proposal.

The ACLU of North Carolina remains opposed to the new version of the bill. It pointed out in a recent news release that it is stripped of limited protections for witnesses and crime victims.

“This is still an extreme anti-immigrant bill that will tear apart families, spread fear across communities, and harm public safety,” said Stefania Arteaga, ACLU of NC Statewide Immigrants’ Rights Organizer. “North Carolina’s towns and counties shouldn’t be forced to spend their limited resources on helping the Trump administration’s deportation force carry out its anti-immigrant agenda. Legislators should reject this bill, and if it reaches his desk, Governor [Roy] Cooper should stand up for local law enforcement and all community members by issuing a swift veto.”

In addition to the ACLU, numerous other immigrant, faith and civil rights groups urged lawmakers to reject HB 370.

In a letter, they wrote that North Carolina has become an epicenter for immigration raids and enforcement. Since the Trump Administration took office, it has experienced a 460 percent surge in ICE arrests, leading to thousands of detentions and deportations, according to information from the Migration Policy Institute.

“Our local officials should not be collaborating with such a morally wrong and rogue agency,” the letter states. “This is why HB 370 would be so devastating if it became law. The bill would enlist the sheriffs of every county into Trump’s deportation force. It turns any police interaction into an immigration status check and cause of deportation.”

And the new version of the bill, the letter adds, is only more harsh.

“With sheriff deputies forced to work for ICE, HB 370 would dramatically increase detentions and deportations, causing long-term damage to North Carolina families and communities,” the letter states.

Joe Killian of NC Policy Watch contributed to this report.

Courts & the Law, News

Forum to focus on bail, court fees, criminalization of poverty

If you’ve been following Policy Watch’s ongoing coverage of the criminalization of poverty through the cash bail system and court fines and fees, you’ll want to mark your calendar for an event this month in Greensboro.

The free, interactive forum, presented by the Greensboro’s city council-appointed Criminal Justice Advisory Commission (GCJAC), will be held from 6 p.m. to 8 p.m. Wednesday, June 26 at Barber Park Event Center, 1502 Barber Park Dr.

Michelle Gethers-Clark, president and CEO of United Way of Greater Greensboro, and Steve Friedland, senior scholar and professor of law at Elon Law School, will lead the discussion.
The conversation will range from bail and court fees can to the results of the 2017 NC Self-Sufficiency Standard Report.

Register for the forum here.

Courts & the Law, News

SCOTUS will take on copyright case about Blackbeard’s pirate ship

The U.S. Supreme Court is bringing a North Carolina copyright case on deck in October to settle a dispute about footage of the Blackbeard pirate ship, Queen Anne’s Revenge, which ran aground in Beaufort in 1718 and was discovered in 1996.

Rick Allen’s Nautilus Productions sued the state of North Carolina for posting its photos and videos of the ship online without permission. The video production company was documenting the salvaging of the shipwreck and Allen had registered the work with the U.S. Copyright Office. At the center of the dispute is whether federal law protects the copyrighted work from infringement and whether states are immune from certain copyright infringement claims under the 11th amendment to the Constitution.

The state initially paid Nautilus a $15,000 settlement in 2013 and agreed not to use the copyrighted material going forward, but eventually began using it again and subsequently passed “Blackbeard’s Law” which converted the work to public record, according to the court documents.

A lower court sided with North Carolina that it was protected from certain private copyright infringement claims under the 11th amendment.

The U.S. Supreme Court petition sheds light on what was described as a frequent problem before Congress passed the Copyright Clarification Remedy Act (CRCA): “states had been flagrantly copying works and threatening to copy others, claiming sovereign immunity as a defense.”

“Those most vulnerable to state copyright infringement are small businesses,” the petition states. “Because small businesses lack the resources necessary to fight state actors effectively and typically need promise of recompense for past infringement before initiating litigation, they currently find themselves largely helpless in the face of state infringement. Absent adequate remedies, authors, performers, composers, and producers will lose their incentive to create, at the expense of the economy and the arts.”

The document argues that the North Carolina infringement at issue “is but the protruding tip of a much larger iceberg of state infringement nationwide” and it presents the best vehicle for the high court to make a definitive decision about the questions before it.

“Not only has the State here infringed Nautilus’s copyrights in the Works, but it frontally attacked the federal copyrights by effectively dragging the Works into the public, unprotected domain under auspices of state law; the upshot very clearly and designedly eviscerates federal copyrights. Such conduct by States profoundly imperils federal protections that are meant to be uniform nationwide and epitomizes what Congress sought to protect against when enacting the CRCA.”