Courts & the Law, Defending Democracy, News

Republicans ask to recuse Justice Anita Earls from map appeal

Justice Anita Earls

Republican legislative defendants in a partisan gerrymandering case involving legislative election maps has asked for North Carolina Supreme Court Justice Anita Earls to be recused from reviewing litigation on appeal.

A three-judge panel in Wake County Superior Court already struck down the previous legislative maps because they unfairly advantaged Republicans, and they ordered lawmakers redraw them without using partisan data and in full public view.

The maps they subsequently enacted as part of the Common Cause v. Lewis remedial process were accepted by the court despite the plaintiffs’ objections to five House county groupings. The plaintiffs are now appealing the decision to accept those county groupings and have asked for expedited review from the state Supreme Court.

The legislative defendants and intervenors in the case — Republican voters — responded to that request and told the Supreme Court there was no need for discretionary review and no cause to expedite the case. The state defendants took no position on the merits of the appeal, but it did express a desire for the case to be resolved as soon as possible.

At the same time the legislative defendants objected to the Supreme Court reviewing the case, they also filed a motion to recuse Earls.

“One of the lead plaintiffs here, Common Cause, is a former co-litigant alongside a client of Justice Earls. Another, the North Carolina Democratic Party, is her principal campaign donor,” the motion states. “It, in fact, gave more than 40 times the amount of any other donor to her campaign. And the real party defendant is the Republican-controlled General Assembly, which has been adverse to Justice Earls in every redistricting dispute this decade predating her joining this Court.

“Justice Earls was not shy to criticize the General Assembly’s leadership in public statements. For example, before this case was filed, she stated both in court and in public speeches that the plans challenged in this case are unconstitutional partisan gerrymanders. Indeed, given the case history, it is likely that, Lawyer Earls laid the groundwork for this litigation.”

The motion goes on to state that ” the public would have an objective basis to view Justice Earls as a sure vote against the General Assembly and for Plaintiffs,” and that they too believe it because they waited to file their lawsuit until after her election.

The plaintiffs have not yet formally responded to the the motion.

The actual motion for recusal is 40 pages, but the entire document with exhibits is 542 pages. Exhibits include social media posts from Earls, underlying litigation and prior testimony from the Justice.

A major point for the request for Earls to be recused has to do with big donations to her campaign by the North Carolina Democratic Party.

“The appearance of a justice ruling in a case brought by a big-money political party donor demeans the integrity of the process and therefore is a case where the impartiality of Justice Earls may ‘reasonably be questioned,'” the document states.

It should be noted that there were similar efforts to have Republican Supreme Court Justice Paul Newby recused from a redistricting case because the biggest contributor to his most recent re-election campaign at the time was the Republican State Leadership Committee. Newby did not recuse himself.

Read the full motion to recuse Earls below.



Motion to Recuse Earls (Text)

Courts & the Law, Defending Democracy, News

Most of the Hofeller files are no longer protected by court confidentiality

Tens of thousands of documents from the late, renowned GOP mapmaker Tom Hofeller are no longer considered confidential by a court in Wake County.

Digital files related to Hofeller’s redistricting work in North Carolina, Arizona, Virginia, Missouri, Nassau County (New York), Nueces County (Texas) and Galveston County (Texas) are no longer subject to a protective order, which was issued during the partisan gerrymandering case Common Cause v. Lewis.

An issue about who owned the files — which were turned over to plaintiffs after the mapmaker’s death by his daughter — and whether they should remain forever private was eventually severed from the Common Cause case, and Judge Vincent Rozier presided over that specific litigation. He released an order Monday detailing his decisions about the documents.

Thousands of other files related to Hofeller’s work on numerous court cases, some personal files and some files given to the mapmaker from the Republican National Committee also are not protected by the court any longer.

There are 950 files that will remain confidential, and there are 135,724 files that are still protected pending ownership litigation promulgated by a political consulting firm Hofeller co-founded, Geographic Strategies. Those files are related to a Texas court case, Perez v. Abbott and Hofeller’s work on an Ohio and Florida congressional plan.

It’s not immediately clear if the Hofeller files that are no longer protected by the court will be released to the public. The parties to the Common Cause case that has copies of the documents can decide what they will do with them.

“This is a victory that echoes back to a founding principle of our government — that every person in America is protected equally under the law — and it will help our allies battle racial and partisan gerrymanders in states where that principle is under attack,” said Karen Hobert Flynn, president of Common Cause. “Our government is of, by and for the people, not the narrow population that Hofeller wanted to advantage, namely ‘Republicans and Non-Hispanic Whites.'”

The Hofeller files played an important role in Common Cause’s successful challenge of the North Carolina’s gerrymandered legislative maps in September. Lawmakers drew new maps that were accepted last week by the court, but the plaintiffs are appealing, hoping to have five specific county groupings redrawn by a neutral party.

“The new legislative maps were ordered by the North Carolina court in large part because the Hofeller documents revealed the concerted and deliberate plot to strip tens of thousands of North Carolinians of a political voice,” said Bob Phillips, Executive Director of Common Cause North Carolina. “In rejecting the legislative defendants’ efforts to have Hofeller’s files sealed or destroyed, the court allows light to shine into the most hidden corners of politics, applying antiseptic to the scourge of gerrymandering.”

Phillips did not immediately return an email asking if the organization would be releasing the Hofeller files.

Documents from the Hofeller files that were publicly filed in the U.S. Census citizenship question litigation likely influenced the decision earlier this year to remove the question from the 2020 Census. Kathay Feng, Common Cause’s national redistricting director, said in a news release that it’s time to “reveal the truth” and establish standards for fair maps as the 2020 round of redistricting approaches.

“We must move away from the politically devious and racially discriminatory gerrymandering of decades past,” she said. “We are already seeing people in state after state rise up to secure the power to draw election district lines based on people, not political operatives, best interests.”

Read Rozier’s full court order on the Hofeller files below.



18 CVS 14001 11 4 19 Order on Confidential Files (2) (Text)

Courts & the Law, Defending Democracy, News

Voters, Congressional candidate file federal lawsuit over decision to halt use of 2016 map

A group of North Carolina voters and man campaigning for Congress filed a federal lawsuit this week asking the court not to allow lawmakers or the State Board of Elections to enact a new Congressional map ahead of the 2020 election.

The suit comes four days after a three-judge panel in Wake County Superior Court issued a preliminary injunction barring state from using the 2016 Congressional map in the next election because it was likely unconstitutionally gerrymandered for extreme partisan gain. It’s still early in that litigation process, but the court said the plaintiffs in that case, Harper v. Lewis, were likely to succeed based on the merits of their argument.

The plaintiffs in the federal case say using a different map this close to filing for the 2020 primaries violates their right to vote and participate in an electoral structure to protect the integrity of the election process.

“North Carolina voters have been subjected to a decade of lawsuits regarding their election districts,” the lawsuit states. “This litigation has instituted a dizzying array of actual and threatened last minute changes to the election process.”

The judges in Harper have encouraged lawmakers to begin their own redistricting process for a new Congressional map to avoid moving state primary elections, but they cannot order a mandatory redraw at this point in the process. They can move the primary election date if litigation drags on.

The plaintiffs and the Congressional candidates they support, according to the lawsuit, have relied on a separate lower court opinion to base their political associations and begin campaigns, including fundraising and electioneering for Congress since the elections started in 2016.

The political parties for example, organize themselves based upon congressional districts which recruit candidates and fundraise for congress,” the document states. “Candidates, should they become congressmen, provide constituent services based upon their residences within the congressional districts so that voters can hold congressmen accountable for their actions.”

Billy Joe Brewster Jr., for example, has established a campaign committee, hired consultants, published videos, solicited donations and communicated directly with identified voters within his district in his effort to become a party nominee in the March, 2020 primary, the lawsuit states.

The suit argues there is too much of a process this close to the primary to just put on pause and that it will cause voter confusion.

The federal court already has said it does not have jurisdiction over the state laws at issue in the Harper case, but this lawsuit appears to be another attempt to get around that legislation by involving a separate set of potential harms from enjoining the use of the 2016 map.

A hearing has not yet been set in the new case, Brewster v. Berger, which was filed in the U.S. District Court for the Eastern District of North Carolina. Read the full lawsuit below.



Lawsuit Over Congressional Relief (Text)

Courts & the Law, Defending Democracy, News

Voting rights advocates to Cooper: Veto bill that would remove non-citizens from voter rolls

"Vote" pin

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Voting rights advocates are urging Gov. Roy Cooper to veto a bill that tasks the State Board of Elections to compare voter and juror information to remove non-citizens from the voter rolls.

Senate Bill 250 passed the House with 59-51 vote and the Senate with a 29-21 vote along party lines earlier this week. The measure would remove North Carolinians from voter rolls if they are disqualified from jury service due to being determined a non-citizen.

“SB250 is a needless and wasteful attempt to force election officials to use their limited resources for identifying non-citizens on the voting rolls by using records of excusal or disqualification from jury duty,” said Democracy North Carolina Executive Director Tomas Lopez. “The use of this data would not reliably help maintain the voter rolls, and could open the door for the harassment of those named — including eligible, naturalized citizen voters.”

The voting rights organization sent a letter to Cooper asking him to veto the measure and is asking its supporters to do the same.

The bill just a few weeks after Democracy NC released its report “Emerging Electorate: Latinx Voters in North Carolina,” showing how extensively Latinx voters — who could be impacted by this bill — are poised to play an important role in the state’s 2019 and 2020 elections.

“It’s time for Gov. Cooper to veto [this bill] and stop this distressing attack on North Carolinians,” Lopez said.

Similarly, the North Carolina Justice Center called the measure unnecessary and discriminatory and noted that it will cause harm to immigrant communities in North Carolina.

The non-profit — which is NC Policy Watch’s parent organization — urged an immediate veto of SB 250. If enacted, it stated in a news release, it could lead to the disenfranchisement of recently naturalized citizens and reveal the immigration status of non-U.S. citizens who are legal permanent residents or have protected status, putting their safety at risk.

“Unfortunately, we have seen a serious increase in violent acts around the country, fueled by hate and ignorance, against communities because of their race, perceived immigration status, and religion,” said Executive Director Rick Glazier. “The state should not facilitate the discrimination and abuse of vulnerable populations with unnecessary provisions in a bill unrelated to the legislation’s stated goal.”

The bill is currently awaiting the Governor’s signature or veto.

Courts & the Law, Defending Democracy, News

Appellate judges considering whether unconstitutionally-elected lawmakers could propose constitutional amendments

Once a General Assembly is declared by a court to be unconstitutionally constituted and not representative of its voters, does it have the power to rewrite a state’s constitution?

That was the question before a three-judge panel Thursday morning at the state Court of Appeals. A lower court already ruled specifically that the North Carolina General Assembly — after extreme racial gerrymandering — lost popular sovereignty and did not have the authority to propose two constitutional amendments last year, one requiring a photo ID to vote and another lowering the income tax cap from 10 percent to 7.5 percent.

The case was brought by the North Carolina NAACP against Republican legislative leaders, who appealed the lower court’s decision. Their attorney, Martin Warf, argued Thursday that an unconstitutionally elected General Assembly can still serve and carry out their duties.

“If you affirm the rationale of the trial court, which is that the General Assembly lost popular sovereignty, there’s no way to put that back in the box,” he said.

Warf compared it to opening Pandora’s Box and said if the judges threw out the constitutional amendments based on the popular sovereignty argument, it could lead to people trying to get all acts by the General Assembly thrown out.

“It would literally infect and impact every act that was passed,” he said.

The plaintiffs’ attorney, Kym Hunter of the Southern Environmental Law Center, disagreed. She said the process of proposing and enacting a constitutional amendment is very specific and different from the process of just enacting a law. It is a two-step process that requires a 3/5 majority vote and then a vote from the people of the state, and it’s a lot more difficult to undo by the next elected legislature.

She said the federal court that found the elections had been unconstitutionally racially gerrymandered determined that a new election was necessary to re-establish popular sovereignty but that there wasn’t time at that time. The question of whether lawmakers had power in the interim was an unsettled question of state law.

Hunter said the facts of the case were so extreme and so egregious and asked if there was any limit to what an unconstitutional General Assembly could do.

“To rule in favor of the defendants is to say, ‘however gerrymandered a General Assembly is, however egregious, they can do whatever they like,'” she said.

She added that Warf wanted the judges to believe a ruling in the plaintiffs’ favor would be a slippery slope to tossing all laws enacted by the General Assembly, but pointed out the lower court ruling is very specific to the two constitutional amendments the case is about.

“It’s actually quite a straight-forward question,” she said. “We’re not talking about the legislature here, we’re talking about what is required to change our constitution.”