Courts & the Law, Defending Democracy, News

Flower to the people: NC law enforcement, prosecutors say not so fast

Industrial hemp in a greenhouse (Photo: NC Industrial Hemp Association)

North Carolina law enforcement officials and prosecutors are getting blunt about their position on smokable hemp: it looks like weed, it smells like weed and officers can’t tell it apart from weed, so ban it.

“Since smokable hemp and marijuana are indistinguishable by appearance and odor, without enactment of legislation clearly banning smokable hemp, we will have de facto legalization of marijuana,” states a joint press release from North Carolina Sheriffs’ Association, the NC Conference of District Attorneys, the NC Association of Chiefs of Police and the NC State Bureau of Investigation.

The organizations are urging lawmakers to pass Senate Bill 315, the North Carolina Farm Act of 2019, as soon as possible so law enforcement, prosecutors, licensed farmers and the public “clearly know what hemp substances are lawful and unlawful.” The bill was passed by the Senate in last year’s long session but stalled in the House, with most of the division focused on the smokable hemp section.

SB 315 defines smokable hemp as “harvested raw or dried hemp plant material, including hemp buds or hemp flowers, hemp cigars, and hemp cigarettes.” Hemp and marijuana both come from the cannabis plant, but hemp contains much smaller amounts of THC, the illegal psychoactive compound that causes the high from marijuana. Federal law currently defines industrial hemp as cannabis plants containing less than 0.3 percent THC by dry weight (marijuana can contain more than 30 percent).

CBD oil and similar extracts, plus rope, textiles, food products — all derived from hemp — would remain legal under SB 315.

Law enforcement already pleaded with lawmakers during last year’s session to prohibit smokable hemp. Their arguments now have not changed.

“There is no practical way for law enforcement officers to distinguish the flowering variety of hemp (i.e. smokable hemp) from marijuana because it is the same plant,” states the Tuesday news release. “The plant looks and smells the same (unburned or burned), whether it is hemp or marijuana. The only difference is the level of THC contained in the plant.”

The release points out that there is currently no validated field test which distinguishes the difference between smokable hemp and marijuana. Police narcotics detection K9s can’t tell the difference either, because they are trained to detect THC, which presents in both plants.

The North Carolina State Crime Laboratory also currently does not have the appropriate equipment or personnel necessary to determine the concentration of THC which is necessary to distinguish smokable hemp from marijuana, according to the release.

Farmers said last year during committee meetings that the concerns over the smokable plant were overblown. If they can’t grow smokable products, it would put their budding industry at an economic disadvantage compared with other states that do allow it. The North Carolina Hemp Retailers Association and the North Carolina Industrial Hemp Association could not be reached for comment Tuesday afternoon.

The controversy over smokable hemp isn’t just unfolding in North Carolina. Louisiana and Indiana banned smokable hemp sales last year, and Texas banned smokable hemp manufacturing. Kentucky banned sales of hemp cigarettes, cigars, whole hemp buds and ground flowers in 2018, according to an article on the Pew Charitable Trusts website.

Nationally, people spend more money on hemp CBD oil than on smokable flower, the Pew article states. The biggest CBD product category — tinctures — hit about $1 billion in sales in 2019, said Virginia Lee, CBD research manager at the Brightfield Group, a cannabis market research firm based in Chicago.

By contrast, an estimated $70.6 million of hemp CBD pre-roll and raw flower were sold in the United States in 2019, Lee said. But, she said, those sales are growing.

North Carolina lawmakers return Tuesday. It’s not clear yet whether House members will take SB 315 up again — if passed, the smokable hemp ban would be effective beginning June 1.

Defending Democracy, News

Veteran watchdog files campaign finance complaint against House Appropriations senior chair

Rep. Linda Johnson (R-Cabarrus)

Citizen watchdog Bob Hall filed a complaint today at the State Board of Elections claiming the senior chair of the NC House Appropriations Committee, Rep. Linda Johnson (R-Cabarrus), has not disclosed receiving more than $20,000 of contributions that political action committees (PACs) report sending to her campaign since 2016.

Hall sent out a news release today with a copy of the complaint, which details $20,900 given by 15 PACs to her campaign that were neither disclosed nor refunded. It’s against state law for a legislator not to properly deposit and report campaign contributions or to use the money for personal purposes.

“This is a large amount of missing money, extending over a three-year period,” said Hall. “There are also missing and misallocated funds donated to another campaign committee that Rep. Johnson is treasurer for, plus numerous other problems that violate the public disclosure laws for election activity.”

The complaint points out that Rep. Johnson has not filed a required report for her campaign that was due last July, nor has she paid a $500 fine levied against her campaign in November by the State Board of Elections.

Rep. Johnson serves as treasurer for her own campaign committee and for the Committee to Elect Republican Women. Required campaign reports for both committees were filed late in 2018. The problems have been so severe that the State Board has sent a “notice of termination” to each committee at different times, which “renders the committee ineligible to receive or make contributions” if issues are not promptly addressed, according to Hall.

The Committee to Elect Republican Women eventually responded and paid a $500 fine to keep its committee functioning, but the Committee to Elect Linda P. Johnson has not yet responded to the State Board’s warning notice.

Hall’s complaint also says that a $500 check from the AT&T PAC meant for the Republican Women’s committee was apparently deposited in Johnson’s committee bank account, and at least $2,500 that other PACs have sent the Republican Women since 2016 are “missing” or unreported, Hall’s news release states.

The complaint calls for the State Board of Elections to conduct a thorough investigation of the two committees. It says the fact that Rep. Johnson is not seeking reelection “brings additional urgency for pursuing appropriate fact-finding and accountability.”

Halls said he left messages at Rep. Johnson’s home and office to hear her explanation of problems going back to 2016, but has not received a response.

Defending Democracy, News

Public comment begins on campaign finance requirements

Public comment begins today for North Carolinians to weigh in on proposed rules and amendments to rules pertaining to campaign finance requirements, according to the State Board of Elections.

The proposed text of the rules can be found here. Public comment will end March 2, and there will be a public hearing held at 1 p.m. Jan. 23 at the State Board of Elections office on the third floor of the Dobbs Building, 430 N. Salisbury St. in Raleigh.

The rules are proposed for adoption and amendment to comply with statutes requiring the State Board to:

  • Engage in rule-making related to campaign finance reporting requirements;
  • Establish the reports and schedule for federal political committees required to register with the State of North Carolina pursuant to G.S. 163-278.7A; and
  • Clarify that the Board’s noncompliance process for late campaign finance reports applies to all reports filed under Article 22A, Chapter 163.

Those wishing to comment on the proposed amendment may submit them directly to the State Board through the online portal.

Members of the public can also submit their comments via email at or mail them to the State Board of Elections, Attn: Rulemaking Coordinator, P.O. Box 27255, Raleigh, NC 27611-7255.

Courts & the Law, Defending Democracy, News

Federal judge: Lawmakers had at least some ‘discriminatory intent’ passing voter ID law

A federal judge who temporarily halted the requirement of a photo ID to vote in North Carolina said lawmakers were at least partially motivated by racial discrimination when they implemented it, according to an injunction released Tuesday.

U.S. District Court Judge Loretta C. Biggs for the Middle District of North Carolina wrote in the 60-page injunction that she looked to the state’s past for context about whether the voter ID constitutional amendment and subsequent implantation law, Senate Bill 824, would disenfranchise minority voters.

“The preliminary evidence demonstrates a clear likelihood that Plaintiffs will establish that discrimination was behind the law: S.B. 824 was enacted against a backdrop of recurring state-sanctioned racial discrimination and voter suppression efforts — both in the far and more recent past — and the state’s polarized electorate presents the opportunity to exploit race for partisan gain,” the document states. “While the sequence of events surrounding S.B. 824’s enactment were procedurally unobjectionable, the bill’s temporal proximity to H.B. 589, the fact that many of the same legislators shepherded and voted for both laws, and the potential that, were it not for unconstitutionally gerrymandered maps, the legislature would not have had the supermajorities necessary to place a constitutional amendment before voters or override the governor’s veto, indicate that something was amiss.”

The North Carolina NAACP sued Gov. Roy Cooper and the State Board of Elections as soon as lawmakers passed SB 824. The injunction is pending that litigation. It’s not yet known if North Carolina Attorney General Josh Stein will appeal Biggs’ (a Barack Obama appointee) injunction — his spokesperson, Laura Brewer, said Tuesday that his office was reviewing the order. Republican lawmakers have urged Stein’s office to appeal the injunction.

In addition to stopping voter ID efforts until further notice by the court, Biggs ruled that the defendants should halt any mailings informing voters they need a photo ID to vote and work with the local media, county boards of election and voter-education groups to inform voters about the injunction.

Read the full order below.

Voter ID Injunction (Text)

Defending Democracy, News

Feds: Hacking didn’t cause 2016 election problems in Durham

A months-long federal assessment of electronic pollbooks used in Durham County in the 2016 election found no evidence of hacking as the cause of inaccuracies and malfunctions that at the time forced a shutdown, according to the State and County Boards of Election.

The Department of Homeland Security (DHS) Cybersecurity and Infrastructure Security Agency’s (CISA) Hunt and Incident Response Team (HIRT) conducted the analysis at the request of the Boards.

CISA analyzed 24 laptops loaded with the electronic pollbook software EViD, which is used to check in voters at polling places. CISA also analyzed 21 USB drives used to load voter registration data onto laptops used by poll workers, as well as forensic images of the desktop computer used by Durham County Board of Elections employees who downloaded voter registration data from state servers and loaded it onto the USB activators.

Specifically, CISA’s assessment found: no evidence of malware on, or unauthorized access to, the 24 laptops; no evidence of malicious software on the USB activators; and no evidence of malicious activity on the desktop computer. The agency released a heavily redacted report about its investigation.

The federal findings support what state and county elections officials concluded during their own analyses – that a cybersecurity breach was not to blame for problems with the voter check-in process on November 8, 2016, states a joint news release from the Boards.

“The CISA Report is compelling evidence that there were no cyberattacks impacting the 2016 election in Durham,” said Philip Lehman, chairman of the Durham County Board of Elections. “As we have acknowledged, there was human error in the preparation of electronic poll books. Since that time, the Durham County Board of Elections has implemented additional training, security measures and staffing changes. Elections in 2017, 2018 and 2019 were conducted efficiently and accurately with no significant incidents.”

On Election Day in 2016, Durham County Board of Elections staff reported that the electronic pollbook laptops used to check voters in at polling places presented inaccurate data to poll workers in a small number of precincts. The inaccuracies included erroneously identifying voters as having already voted, identifying registered voters as unregistered, and prompting poll workers to ask voters to present an ID when IDs were not required to vote at that time. As a result, the State Board office required Durham County to use paper pollbooks when checking in voters. Voting ultimately resumed.

State Board investigators found that the issues were most likely the result of Durham County staff and poll worker error and unfamiliarity with the electronic pollbook functions, combined with a lack of adequate staff training and quality control by the EViD vendor, VR Systems.

Durham County hired Protus3, a security consulting and investigative firm, to conduct a review of the events that occurred on Election Day in Durham County. Following its investigation, Protus3 determined that the issues that occurred during the 2016 general election were most likely caused by internal administrative error.

Karen Brinson Bell, Executive Director of the State Board, said in the news release that the 2016 issue highlights the importance of poll worker training by elections officials and the vendors whose products are used in North Carolina.

“Election security is an ongoing process, and the State Board will continue to work with the 100 county boards of elections and our state and federal government partners to improve security at every step in the voting process,” she said.

In its report, CISA provided recommendations to improve cybersecurity and protect against possible interference, but they were redacted to protect “sensitive public security information,” according to the news release.

“Many of the recommendations provided by CISA are general and would apply to all county boards of elections in North Carolina,” the release states. “Durham County has many of the suggested infrastructure protection tools in place and is working on additional enhancements to its systems.”

Election security has been a point of contention in North Carolina in the past year as fear rises over the potential for hacking in the 2020 election (after Russian interference in the 2016 election). There was also tension over voting machines this year — voting rights advocates urged the State Board to return to a system and vendor that used hand-marked paper ballots. They ultimately certified a wide-range of vendors and systems but vowed to continue bolstering security. Learn more about election security here.