Courts & the Law, Defending Democracy, News

School of Government explains how the 9th congressional controversy came to be

Are you still confused about how the 9th congressional district remains without representation in Congress?

The University of North Carolina School of Government has taken a swing at trying to explain “our messy congressional election and how we got here.”

Robert Joyce, a Charles Edwin Hinsdale Professor of Public Law and Government, writes about five threads that are interrelated in the controversy over alleged absentee voter fraud in the 9th congressional district. They are: re-configuring the State Board of Elections; allegations of fraud in the election; how many new elections?; what if the new State Board does not order a new election?; and the power of the United States House of Representatives.

The explanatory article was posted a few days ago, so there has since been a new State Board seated. Gov. Roy Cooper announced yesterday who would serve on the Board and they subsequently met and decided Bob Cordle would be chair and Stella Anderson would be secretary — both are Democratic members.

It’s expected the new Board will meet again next week to work out details of a hearing in the 9th congressional district investigation. Joyce wrote in his first thread explanation that the struggle over control of that Board has nothing to do with the congressional election but has become entwined in it.

The second thread explores the types of fraud irregularities that were reported, and the third thread delves into how many new elections there could be if the Board decides there are enough votes at issue or the irregularities are so that they taint the results of the entire election.

If the State Board does not order a new election at all, Joyce writes about the possible outcomes for the 9th district.

But the order for a new election requires the votes of four board members—four out of the five. It is not beyond imagination that by a three-to-two vote the board finds that there are sufficient grounds to order a new election, but cannot secure the fourth vote to actually order the election.

What happens then? Another entry into unchartered waters. Perhaps the state board would decide that at that point it has done all it can and will issue a certificate of election to Harris. Or perhaps the three-member majority would refuse to do that, leading, it could be, to a lawsuit by Harris for a court order for a certificate of election.

Perhaps the Governor could order a new election. There is a statute that authorizes the Governor to call a new election any time there is a “vacancy.” That usually happens, of course, when a sitting member of the House of Representatives dies or resigns. What about the current Ninth district circumstance? Is there a “vacancy” within the meaning of the statute?

If the new state board issues a certificate of election, then surely there will be no vacancy. What happens if the board does not reach that point for a long time? Is there, at some point, a “vacancy?” More unchartered territory.

Finally, Joyce writes about the power the U.S. House holds in this election — it has the final say.

For now, the House is waiting for the North Carolina process to play out—a new state elections board to be appointed, an investigation to be completed, perhaps new elections to be held, and, eventually a certificate of election to be issued. But, ultimately, the House of Representatives may upend any resolution reached at the state level.

You can read the full report here. The State Board also has a public portal here with documents it has made available throughout the course of its 9th district investigation. And you can read more about the new State Board here.

Courts & the Law, Defending Democracy, News

Cooper announces new Board of Elections members

Gov. Roy Cooper has officially appointed five new members to the State Board of Elections.

Members are:

  • Democratic member Stella Anderson, of Boone. She was the Board Chair of the Watauga County Board of Elections from 2005 to 2013 and previously served on the most recent State Board. She is currently a professor at Appalachian State University.
  • Republican member David C. Black, of Concord. He currently serves as the President of H & B Tool & Die Supply. He also served as Chair of the Cabarrus County Board of Elections.
  • Democratic member Jeff Carmon III, of Durham. He is an attorney at the CW Law Group and practices in the areas of personal injury and criminal law.
  • Democratic member Bob Cordle, of Charlotte. Cordle previously served on the State Board  and practiced law in Charlotte from 1968 to 2018, before retiring from Mayer Brown LLP.
  • Republican Ken Raymond, of Winston Salem. He is a freelance writer and works at the Piedmont Triad Airport. He also served as the Chair of the Forsyth County Board of Elections and on the most recent State Board.

The previous nine-member State Board was dissolved in late December after a three-judge panel found that it was unconstitutionally constituted by the GOP-led legislature. The new members have their work cut out for them.

The Board had been investigating alleged absentee ballot fraud in the 9th congressional district, and the agency has continued to investigate. The new Board will ultimately decide what happens in that race.

“North Carolinians deserve fair and honest elections, and I am confident this board will work to protect our electoral process,” Cooper said in a news release announcing the new members.

The Board is expected to hold an evidentiary hearing in February to decide whether to certify a winner or to order a new election, according to spokesman Pat Gannon. The date of the hearing has not been set.

The State Board also must appoint four of the five members to each of the state’s 100 county boards of elections, and the Governor appoints the fifth member, who will serve as chair. It’s also working to implement new voter identification requirements, which will take effect for the 2019 municipal elections, unless otherwise directed by the courts.

The state’s voters added the voter ID mandate to the N.C. Constitution in the November general election and prescribes steps the State Board and county boards of elections must take in the coming months to implement the requirement and inform voters about it, according to Gannon.

Finally, the State Board must evaluate new voting equipment for formal state certification so county boards may purchase new machines to replace aging ones. The agency is engaged in a large-scale modernization of the statewide elections management system.

“We congratulate the new Board members and look forward to working with them to promote confidence in North Carolina elections,” said Executive Director Kim Westbrook Strach. “We thank them for their willingness to serve North Carolina’s voters at this critical time.”

Under the new law, State Board members will serve through April 30, 2023, or until successors are appointed and qualified. They will also choose a new executive director to lead the agency.

In a separate situation, the Senate Rules and Operations Committee passed today a bill appointing members of the new State Ethics Commission. Senate Bill 7 still has to be approved by both chambers.

Senate President Pro Tem Phil Berger appoints in the measure: Clarence Newsome, a Democrat and an Ahoskie native who is the former president of the National Underground Railroad Freedom Center in Cincinnati, Ohio, and former president of Shaw University; and Shirley Randleman, a Republican and former member of the General Assembly.

House Speaker Tim Moore appoints in the bill: Carl J. Steward Jr., a Democrat and former member of the General Assembly; and Thomas “Roger” West, a Republican from Cherokee County who is also a former member of the General Assembly.

Courts & the Law, Defending Democracy, News

UPDATE: Democratic Party submits 2 new nominees to Board of Elections after initial 2 ineligible

As it turns out, half of the original nominees for the new State Board of Elections provided by the state Republican and Democratic parties were ineligible to serve.

Both the state Republican and Democratic parties have since each made two new nominations. Gov. Roy Cooper can appoint the new five-member Board as early as tomorrow.

The Republican nominees are now: David Black, of Concord; Ken Raymond of Winston Salem, who served on the most recent State Board and who owns and manages Triad Notary Service; Stacy Eggers IV, who also served on the most recent State Board, and who is currently the Watauga County attorney (he was involved in voter suppression resolutions there while moonlighting as a personal legal advisor to his brother, chairman of the Watauga County Board of Elections); and Edwin Wilbur Woodhouse Jr., cousin to Republican Party Executive Director Dallas Woodhouse.

Francis Xavier Deluca, retired president of conservative Civitas Institute, and Buck Newton III, a former conservative state senator who ran for state Attorney General against current AG Josh Stein, were two of the Republican Party’s initial nominations, but it turned out they were ineligible to serve because they had been involved in electioneering in the past 48 months.

The law creating the new State Board, House Bill 1029, lists several disqualifying factors for appointed members in addition to electioneering, including state employees and candidates for nomination or election to any public office.

The Democratic nominees are now: Bill Bell, former Mayor of Durham; Jeff Carmon, a Durham attorney; Stella Anderson, who served on the most recent State Board and who works as a professor at Appalachian State University; and Robert Cordle, a retired attorney who replaced the vice chair of the most recent State Board.

Greg Flynn, who currently serves on the Wake County Board of Elections, and Valerie Johnson, who also served on the most recent State Board and who is currently an attorney and member of the North Carolina Advocates for Justice (NCAJ), were two of the Democratic Party’s initial nominations, but it turned out they too were ineligible for service on the new Board on account of the same electioneering provision, according to a letter (available below) from Cooper’s office sent today to Democratic Party Chairman Wayne Goodwin.

The new Board can be appointed as early as tomorrow. NC Policy Watch reported last week that Johnson could be ineligible for service, but Democratic Party spokesman Robert Howard said she was “grandfathered” in to the new law because of her service on the most recent State Board.

The part of the law creating the new State Board doesn’t take effect until tomorrow, but the grandfathering provision took effect when other parts of HB 1029 did on Dec. 27, according to Howard. The previous State Board was not dissolved until noon Dec. 28.

It turns out, however, that the grandfather provision only applies to state employees who previously served on the State Board.

The provision reads: “The requirements of G.S. 163-19(f)(5) shall not apply to any member of the Bipartisan State Board of Elections and Ethics Enforcement serving on the effective date of this act who is appointed to the State Board of Elections in 2019.”

G.S. 163-19(f)(5) is the part of the bill that prohibits state employees from serving on the new Board.

Editor’s note: This article has been updated to reflect new appointments from the state Democratic Party.



2019 01 29 10 Board of Elections Nominations Letter (Text)



2019 01 25 Board of Elections Nominations Letter (Text)

Courts & the Law, Defending Democracy, News

ICYMI: Chief Justice Mark Martin leaving Supreme Court to lead Christian law school

Chief Justice Mark Martin

The news has already made the rounds, but for those who missed it, the North Carolina Supreme Court could soon become a 6-1 Democratic majority.

Chief Justice Mark Martin announced Friday that he would resign at the end of February to become dean of Regent University School of Law in Virginia Beach, Va.

“It has been the highest of honors to serve the people of North Carolina as their Chief Justice,” Martin said in a news release from the N.C. Administrative Office of the Courts (AOC). “I will forever cherish the memories of serving with so many amazing and capable people. It is now time to direct my focus to helping prepare the next generation of leaders.”

Martin has had the longest tenure on the current high court with more than 20 years on the bench. He has been a judge in North Carolina for 26 years.

His unexpected departure from the bench means Gov. Roy Cooper will get to appoint his replacement, and it doesn’t have to be someone from the same party. Cooper can either appoint someone currently on the court as the next Chief Justice and then fill that vacancy, or he can appoint someone not on the court as the next Chief Justice.

He commended Martin on Twitter for his service to the state and the court after the news was released.

“I appreciate Chief Justice Mark Martin’s service to the state and the judiciary and his efforts to strengthen our court system,” Cooper tweeted. “I wish him well in his new role as a law school dean. Leading the state’s highest court and its court system is a critically important job, and I will carefully consider his replacement in the coming days.”

The make-up of the high court has been controversial since the election Democrat Mike Morgan over Republican incumbent Bob Edmunds and the recent election of Democrat Anita Earls over Republican incumbent Barbara Jackson. The court oversees important decisions in cases involving voting rights, redistricting, school voucher programs, the power struggle between Cooper and GOP lawmakers, and other hot button partisan issues in the state.

Those GOP lawmakers recently put a constitutional amendment before voters that would have reallocated Cooper’s power to appoint judicial vacancies to themselves, but it failed.

The next senior justice on the high court is the only other Republican, Justice Paul Newby. State Republican Party Executive Director Dallas Woodhouse tweeted not long after Martin’s news that he could confirm Newby would plan to run for the Chief Justice seat in the 2020 election.

There could now be as many as three Supreme Court seats on the ballot next year if Cooper chooses to elevate a current justice and appoint a replacement, which could give Republicans a chance to weaken the court’s strong Democratic majority.

Martin told the Associated Press he was not leaving the court because of the partisan battles that have been ongoing since Cooper was elected Governor. He said that at age 55, he’s young enough to do something different and wanted to work with law students seeking to make a difference in the world.

He also said in the article that he first became aware of the potential position at Regent, founded by televangelist Pat Robertson, late last summer.

At 35, Martin was the youngest Supreme Court justice to join the bench. He was dedicated to improving the administration of justice and was commended by many for initiating initiated a multi-disciplinary citizens’ commission to help with that mission. He was also a main proponent of getting raise the age legislation passed in North Carolina, a law that will treat 16- and 17-year-olds in trouble in the juvenile justice system instead of the adult system.

Martin will start at Regent University on March 1. The school was founded in 1978 and has 11,000 students studying on its 70-acre campus and online around the world. The university offers associate, bachelor’s, master’s and doctoral degrees from a “Christian perspective” in more than 130 program areas.

M. G. “Pat” Robertson, CEO and chancellor of Regent University, called Martin a distinguished leader in his announcement that he would be taking on the new role.

“We are delighted to welcome this public servant whose vast experience and Constitutional advocacy will infuse a standard of excellence by every measure into our law program,” he said. “Chief Justice Martin has set records throughout his career and he represents the intellect, skill, integrity and vision that we want our students and graduates to emulate.”

Courts & the Law, Defending Democracy, News

U.S. Supreme Court sets date for NC partisan gerrymandering case

The highest court in the nation will take up partisan gerrymandering in North Carolina at the end of March.

The U.S. Supreme Court released its calendar Friday and will hear oral arguments in Rucho v. Common Cause on March 26. A federal court has already found twice in the gerrymandering case that the state’s 2016 congressional redistricting plan was unconstitutional.

The high court will also take up Benisek v. Lamone the same day, a challenge to a Democratic partisan gerrymander in Maryland.

The court in either case could decide for the first time ever to outlaw partisan gerrymandering or to establish a standard for redistricting with regard to partisan advantage.



MonthlyArgumentCalMarch2019 (Text)