Courts & the Law, Defending Democracy, News

Federal court blocks mass voter purges in NC after NAACP sues

A federal court has ordered that three counties in North Carolina must stop purging voters based on private party challenges.

Here is the release from the North Carolina NAACP, a plaintiff in the suit.

A federal court ruled for the North Carolina NAACP, Moore County Branch of the NAACP, and individual voters yesterday in a landmark voting rights case, issuing a permanent injunction prohibiting the state and county boards of elections from purging voters based on mass challenges filed by private parties.

The North Carolina NAACP, the Moore County Branch of the NAACP, and individual plaintiffs brought the lawsuit in October 2016 after learning that county boards of elections in at least three counties across the state—in Moore, Beaufort, and Cumberland County were conducting mass removals of voters based on private challenges, including challenges by the voter integrity project, brought on the basis of returned mail. In Beaufort County, voters who were purged were disproportionately African American.

“It is fitting that this decision comes on the week of the 53rd anniversary of the Voting Rights Act,” said Rev. Dr. T. Anthony Spearman, President of the North Carolina NAACP. “The odious practice of using mass mailings and undelivered mail to suppress and intimidate voters of color has a long and shameful history in North Carolina. Yesterday’s federal court decision will ensure that voters are not wrongly disenfranchised on the basis of returned mail.”

The lawsuit, filed against the State Board of Elections and the Cumberland, Moore, and Beaufort Boards of Elections, alleged that the purges violated the National Voter Registration Act (“NVRA”), Section 2 of the Voting Rights Act, and the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs won an emergency injunction on the eve of the 2016 election, ensuring that wrongly removed voters were able to vote in that election and that the state was temporarily enjoined from engaging in further purges.

Yesterday’s decision makes this injunction permanent. In ruling for the plaintiffs and finding that the purges violated the National Voter Registration Act, the federal court ordered:

Defendants and their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, are hearby enjoined and restrained from:

(1) Removing the registration of voters from the official list of eligible voters in elections for federal office through the challenge procedures set forth in NC Gen Stat 163A-911, when those challenges are based on change of residency and the State has neither received written confirmation from the voter of a change of residency outside of the county, nor complied with the NVRA’s prior notice requirement and two-election cycle waiting period;
(2) using the challenge procedure set forth in NC Gen Stat. 163A-911 to remove voters from the rolls without individualized inquiry as to the circumstances of each voter in the 90 days preceding a federal election in the absence of a request of the registrant, necessity under State law….; and
(3) holding hearings or taking any actions(s) to process challenges filed under those provisions in the circumstances identified above.

“This ruling for plaintiffs is a victory for the voter of North Carolina whose rights under federal law were being violated by this practice of mass purges, “said Attorney Leah Kang of Forward Justice, “As the court said, the NVRA was enacted to encourage people to vote and to protect voters from the risk of being erroneously removed from the rolls. By purging dozens and sometimes hundreds of voters at a time based on returned postcards, the state was disenfranchising eligible voters and violating federal law. This ruling ensures an end to this illegal practice.”

Courts & the Law, Defending Democracy, News

3-judge panel sets hearing in two cases; Anglin announces ‘conditional withdrawal’

It’s a busy time for the courts tasked with settling legislative disputes.

The three-judge panel that will preside over the two lawsuits filed by Gov. Roy Cooper and the North Carolina NAACP and Clean Air Carolina challenging constitutional amendment ballot language set a hearing at 9:30 a.m. Wednesday, Aug. 15. The hearing will be open to the public in courtroom 10C at the Wake County Courthouse.

The hearing will be just three weeks before ballots are set to go out by mail for absentee voting.

Meanwhile, there is another hearing set at 10 a.m. Monday with Judge Rebecca Holt for a preliminary injunction over a retroactive change in judicial filing rules. She issued a temporary restraining order to stop the State Board of Elections and Ethics Enforcement from printing and certifying ballots until the case was settled.

State Supreme Court candidate Chris Anglin, who is one of two judicial candidates who sued over the change in rules, announced late Wednesday that if he did not prevail in court, he would withdraw from the race. He is challenging incumbent Republican Justice Barbara Jackson and Democratic candidate Anita Earls.

Anglin registered as a Republican to vie for the seat on the high court but the Party insists he is not a true member. GOP lawmakers called a special session to change the rules so that his party affiliation would not appear on the ballot.

It’s that possibility Anglin pointed to as the reason for his “conditional withdrawal.”

“While I firmly believe and intend to prove in court the Legislature’s action is an unconstitutional violation of my rights, in the unlikely circumstance that the courts allow it to go into effect, I will not allow my party designation to be misrepresented on the ballot and aid their efforts to rig this election,” he wrote in a statement. “Thus, I have informed the State Board of elections of my conditional withdrawal if I am not listed on the ballot as I intended when I filed.”

See the official notice below.

2018 08 08_Anglin Candidate Withdrawal by NC Policy Watch on Scribd

Commentary, Defending Democracy

Former legislative counsel Gerry Cohen on NC’s six proposed constitutional amendments

At today’s Policy Watch Crucial Conversation luncheon, former legislative counsel Gerry Cohen had harsh words for the deceptive nature of the six constitutional amendments that state lawmakers are seeking to place on the state’s November ballot and the inadequate process that the General Assembly employed in rushing them to passage during the harried closing days of the 2018 session.

Shortly after the event, Cohen was kind enough to share the text of his remarks, which we’re happy to publish below. You can access a PDF version of the remarks by clicking here.

NORTH CAROLINA CONSTITUTIONAL AMENDMENTS
2018 NC POLICY WATCH “CRUCIAL CONVERSATIONS” SERIES
PRESENTATION BY GERRY COHEN

Quoting from the mission of today’s conversation “In the final harried days of the 2018 legislative session, North Carolina lawmakers took the unprecedented step of voting to place six constitutional amendments on the November ballot. The amendments deal with a wide-ranging array of subjects: the right to hunt, fish and harvest wildlife; the rights of crime victims; changes to the state board of elections and the transfer of appointment powers from the governor to the legislature; selection for judicial vacancies; a cap on the state income tax and requiring a photo ID to vote.”

The six amendments simultaneously on the ballot is the third highest ever since our 1776 state constitution, behind only 10 on the ballot in 1914 (all of which were defeated in 1914 – I was told interestingly by someone who started work at the General Assembly in 1948 that the reasons for defeat was a proposed amendment in the package that dealt with hunting and fishing, and it brought down to defeat the other nine as well), and seven on the 1970 ballot, including a revised state constitution and six proposed amendments to it. The highest number in more recent memory was in 1982 when five amendments appeared on the ballot, three of which failed at the polls.  The 1914 amendments that went down at the polls even included a bizarre one (my all-time favorite) which amended a reference in the State Constitution to the Civil War which had called it an “insurrection and rebellion” (certainly a northern point of view) to the “War Between the States”, a distinctly southern reference. The voters were having none of it. Interestingly that amendment was put on the ballot by NCGA action less than 90 days after the infamous dedication of the “Silent Sam” statue in Chapel Hill. (Also good was the repeal by the 1970 Constitution of the old provision banning duels).

So we know that when the General Assembly jams lots of amendments on the ballot all at once (other than the 1970 ballot which had been preceded by a study commission which met for two years hammering out language from 1967 through 1968 and months of discussion in the 1969 session), the track record of passage is NOT good.

Since the 1982 debacle, the General Assembly made two major changes: In 1983 it created the “Constitutional Amendments Publication Commission” composed of the Secretary of State, Attorney General, and the Legislative Services Officer, and tasks them with writing factual summaries of proposed amendments. There had been little information for the public on the 1982 amendments. That commission had worked quietly for the last 35 years on the next 15 or so constitutional amendments that went on the ballot The General Assembly began to consistently pass implementing legislation prior to the referendum so that voters would have a lot more information on what the amendments would do.  Other than one self-executing amendment that did not need legislation, 13 of the last 14 amendments had enacted implementing legislation prior to the referendum and all but two were approved by the voters.  This year, none of the five amendments that require implementing legislation had it enacted. For example, on the highly contentious Voter Photo ID proposal, voters will have NO idea on what types of photo ID will suffice.  Even in the 1969-1982 period, a majority of the amendments had implementing legislation passed before the referendum. Read more

Courts & the Law, Defending Democracy, News

3-judge panel appointed in cases over constitutional amendment ballot language

State Supreme Court Chief Justice Mark Martin has appointed a three-judge panel to review two cases over ballot language for four proposed constitutional amendments.

Judges Forrest Donald Bridges, Thomas H. Lock and Jeffery K. Carpenter will preside over the two lawsuits filed by Gov. Roy Cooper and the North Carolina NAACP and Clean Air Carolina. Bridges is a registered Democrat serving Cleveland and Lincoln counties; Lock is registered to vote as an unaffiliated and serves Harnett, Johnston and Lee counties; and Carpenter is a registered Republican who serves Union County.

There is not yet a hearing set in the cases. Attorneys from all sides argued Tuesday before Wake County Superior Court Judge Paul Ridgeway at hearings for temporary restraining orders to prevent election ballots from being printed with the constitutional amendments on them.

Ridgeway took the restraining order arguments under advisement and did not make a decision. He referred the case to Martin to appoint the three-judge panel because he believed it was a facial constitutional challenge and not an “as applied” challenge, like the plaintiffs argued.

These are the constitutional amendments with ballot language that is being challenged in the two cases: one requiring a photo identification, one that caps the state income tax at 7 percent, one that transfers Cooper’s power to appoint members of state boards and commissions to the General Assembly and another that strips his power to appoint judicial vacancies and also gives it, although in a somewhat convoluted fashion, to the General Assembly.

18 CVS 9805 Order Assigning 3JP by NC Policy Watch on Scribd

18 CVS 9806 Order Appointing 3JP by NC Policy Watch on Scribd

Courts & the Law, Defending Democracy, News

Judge puts NCGA’s retroactive change of judicial filing rules on hold for the moment

Rebecca Edwards and Chris Anglin

The State Board of Elections and Ethics Enforcement cannot certify or print any election ballots until after a Wake County judge hears full arguments over the General Assembly’s decision to change judicial election rules after candidate filing.

Chris Anglin and Rebecca Edwards both filed separate lawsuits over Senate Bill 3, which retroactively requires judicial candidates to be affiliated with the party listed on their voter registration for at least 90 days before filing for a race.

Anglin, a state Supreme Court candidate, changed his Democratic affiliation to Republican on June 7 and Edwards, a Wake County District Court candidate, changed her Republican affiliation to Democratic on May 30. They both challenged SB3 only as it applied to their candidacy and said it violated several of their rights, including their First Amendment association rights and their equal protection rights.

Judge Rebecca Holt presided over Monday’s hearing over temporary restraining orders.

“It is not lost on me that this is a matter that was filed this morning after legislative action on Saturday, and that on Monday afternoon, after something has been filed, I am being asked to in effect make a decision that will affect the merits of this case,” she told the courtroom before delivering her decision. “Either I require the plaintiffs’ party designation to be listed on the ballot as some injunctive relief, or I don’t require that, in which case in either event, based on the timeline, I am deciding the case.”

Holt took what appeared on its face to be a more measured approach, though a top GOP lawmaker later called her decision “disappointing” and indicated an appeal was imminent.

She enjoined the State Board from printing the ballots — which they would have done Wednesday — in order to have a full preliminary injunction hearing next Monday. She stayed the part of SB3 that would have required Anglin and Edwards to make a decision about moving forward in their respective races without party affiliation or withdraw altogether.

Holt said her decision gives both sides — lawmakers and the candidates — an opportunity to fully brief the court on the issues. Any documents they plan to file must be submitted by 5 p.m. Friday.

An attorney for Edwards, Narendra Ghosh, said after the hearing they were “pleased with the outcome” and looked forward to Monday’s hearing. Ghosh is a board member of the North Carolina Justice Center, the parent organization to NC Policy Watch.

Anglin indicated in a news release he too approved of Holt’s decision, though he added he wasn’t surprised by it.

“What the Legislature has done is a violation of my Constitutional rights, and frankly un-American,” he wrote. “Even children understand changing the rules in the middle of an election is wrong.”

Rep. David Lewis (R-Harnett) tweeted his disapproval after the hearing.

“Appears to be a disappointing ruling,” he wrote on Twitter. “Timeline interferes with the State Board ballot deadline. Current decision would also give voters misleading information as to candidates’ long-held partisan affiliation. But was certified for immediate appellate review…”

An attorney with the North Carolina Department of Justice told Holt that the State Board needed 30 days to print and certify ballots, and that absentee forms were scheduled to go out Sept. 7 — which means Wednesday is the 30-day deadline.

Anglin’s attorney, John Burns, who is also a Wake County Commissioner, said, however, during the hearing that the deadline was not hard and fast.

Burns argued that the legislature could not “reach back in time” and change election rules without violating his client’s rights. He also argued that the bill was aimed specifically at Anglin, not Edwards.

“Had my client filed as a Democrat, I doubt we’d be here today,” he said. “It was aimed specifically to remove my client’s ability to run as a Republican for Justice [Barbara] Jackson’s seat, and as this law applies to him, it’s unconstitutional because he had a vested right under the existing statutes to run as a Republican. He followed all the rules he needed to follow.”

Martin Warf, the attorney representing lawmakers, contested the “vested right” argument several times throughout the hearing. He said the law wasn’t totally retrospective in that the ballots were not yet set.

“This law does not remove, in itself, any candidate from the ballot,” he said. “It does extend the time for a candidate if they decide they would like to withdraw on their own, but if they choose not to withdraw, they are appearing on the ballot, they are a candidate for office. The only difference is that there is potential for their party label not to be listed on the ballot.”

He added that candidates did not have a right to control information on the ballot and cited several court cases as precedent.

“That is entirely the province of the General Assembly in North Carolina or a legislature in the various states,” Warf said.

Ken Soo, another attorney for Edwards, argued that SB3 absolutely was retroactive because there was no way for his client to correct her current non-compliant party affiliation status “short of going back in time” and no way for her to appeal except to the courts.

He said everyone else in the District Court race Edwards was a candidate for would have some party label beside their name on the ballot, but she would have nothing.

“This denies her speech and association rights and does so without due process, and it all but ends her prospect for election,” Soo said.

He quoted from an affidavit they provided the court from Gary Bartlett, who was the Executive Director of the state Board of Elections for 20 years.

“In Mr. Bartlett’s opinion … it is very unlikely Ms. Edwards could prevail in an election, despite her merits, if she is listed as nothing compared to these other people who have these cues for voters,” Soo said. “And Mr. Bartlett also noted that this is, in his experience, unprecedented in at least the recent history of North Carolina to change the filing requirement or access to the ballot after the fact, and apply it not to people in the future, but to people in the past who can’t do anything about it — changing the rules in the middle of the game.”

Holt scheduled a preliminary injunction hearing in the cases for 10 a.m. Monday at the Wake County Courthouse.