Courts & the Law, Defending Democracy, News

Three-judge appellate panel considering how much right public has to instruct NC lawmakers

What does the constitutional right for North Carolinians to instruct their representatives mean?

That was the question a three-judge panel at the state Court of Appeals mulled over Thursday morning in Common Cause v. Forest, a challenge to the 2016 special legislative session in which two bills were passed that fundamentally changed the balance of power between governmental branches.

Burton Craige argued on behalf of the plaintiffs, Common Cause and 10 North Carolina citizens. He said that lawmakers provided no notice about the special session, suspended the majority of legislative rules and buried the substantive legislation by filing 26 other bills at the same time.

“They knew for months in advance what they were going to do,” Craige said. “They planned for it and they deliberately withheld it from the public and other legislators.”

He pushed for the court to craft a rule requiring notice for special legislative sessions and a reasonable opportunity for members of the public to communicate with their representatives.

Judge Richard Dietz, who is a registered Republican, asked Craige a lot of questions and played devil’s advocate during his argument. He said there wasn’t really any guidance when it came to the constitutional right to instruct, so the court would have to create precedent if it stepped into the challenge and overturned the lower court’s ruling for the defendants.

“Why couldn’t people call on legislators to call another special session and undo it?” he asked. “One of the unique features of legislating is that you can undo what you’ve done.”

He also indicated that the legislative process is always confusing and asked what made the special session different from a regular session committee meeting in which a complicated amendment might be added without notice.

Craige told him regular sessions were planned and people have ample notice to mobilize and lobby and participate in the process — special sessions, he added, have their own constitutional significance. He said the challenge for the court would be to reconcile the right of lawmakers to call a special session and the right of the people to instruct their representatives about legislation.

He addressed the court’s concerns about establishing a timeline for the right to instruct to the right to procedural due process. That right does not give “x period of time” but the courts established what it meant.

“If these facts don’t violate the right to instruct, what facts do?” he asked. “[The court] must give meaning to those rules.”

Dietz asked the attorney for the state, Matt Tulchin, a similar question during his argument. He asked him what his example would be of a situation that violates the right to instruct.

Tulchin told him it would be more generalized — if legislation couldn’t be made public prior to its enactment or if lawmakers prohibited lobbying or the public’s opportunity to communicate altogether with them.

He said the right to instruct hasn’t been used in the country in over 100 years because it’s a different time now than when it was created. We live in a 24/7 news cycle and communication and travel to the capital is easier, he said, adding that just because the right is in the constitution doesn’t mean it is what the plaintiffs want it to mean.

“That would render a lot of legislation unconstitutional,” he warned of the judges imposing a time-frame for public notification.

Tulchin said that the public did have time to communicate with lawmakers during the 2016 legislative session and that the media reported on the substantive bills before they were introduced. He also said there was nothing preventing citizens from communicating with lawmakers after a bill passed.

The bills that were passed out of the session were Senate Bill 4, which changed the structure of state and county boards of elections and the State Ethics Commission, created partisan appellate judicial elections, and stripped the newly elected governor of the power to administer the Industrial Commission, and House Bill 17, which transferred power from the state Board of Education to the Superintendent of Public Instruction.

There has already been extensive litigation over the substance of those bills rather than the special session itself.

Craige asked the judges to read and re-read the affidavits of the North Carolina citizen plaintiffs as part of the case. They wrote about being actively engaged in the political process on a regular basis and historically participating in robust discussion with lawmakers.

“Those avenues were cut off,” he said of the 2016 special session. “Reasonable notice and opportunity to be heard — that’s what the legislature needs to provide its citizens.”

The judges are taking arguments under advisement to release an opinion at a later time. Dietz presided with Judge Hunter Murphy, another registered Republican, and Judge Allegra Collins, a registered Democrat.

Courts & the Law, Defending Democracy, News

Common Cause back in court tomorrow with challenge to 2016 ‘surprise’ special session

The North Carolina Court of Appeals will hear a challenge tomorrow to the 2016 “surprise” special legislative session.

The hearing, Common Cause v. Forest, will start at 9:30 a.m. at the Court of Appeals building at 1 West Morgan St., and is expected to last for an hour. The plaintiffs, Common Cause and 10 North Carolinians, lost the case in Superior Court in 2017 but appealed the decision.

Here’s background from the voting rights organization:

The plaintiffs in Common Cause v. Forest argue that legislative leaders violated the NC Constitution in December 2016 when, with no notice to the public, they called a special session to make sweeping changes to state government. Unlike each of the preceding 30 extra sessions, dating back to 1960, citizens were given no advance notice that the December 2016 Fourth Extra Session would be called, and no notice of the subjects it would address.

After convening that Fourth Extra Session in 2016, legislative leaders modified the rules of the House and Senate to speed up the legislative process and curtail participation in committee meetings, effectively eliminating debate and deliberation. The legislature passed the bills less than 48 hours after they were introduced.

In April 2017, Common Cause and 10 North Carolina citizens filed suit against the legislature’s surprise special session. At the heart of the challenge is a violation of citizens’ constitutional right to “instruct their representatives” – a right expressly guaranteed by Article I, Section 12 of the North Carolina Constitution.

The absence of public notice and wholesale changes to the legislative rules made it virtually impossible for North Carolina citizens to communicate with their representatives about the sweeping legislation proposed and enacted during the Fourth Extra Session, which included passage of these bills:

  • Senate Bill 4 changed the structure of state and county boards of elections and the State Ethics Commission, created partisan appellate judicial elections, and stripped the newly elected governor of the power to administer the Industrial Commission; and
  • House Bill 17 curtailed the governor’s appointive powers and transferred power from the State Board of Education to the Superintendent of Public Instruction.
Courts & the Law, Defending Democracy, News

Tomorrow: Lobby day to end gerrymandering at NC legislature

Tomorrow is the People’s Lobby Day to End Gerrymandering at the North Carolina legislature, and there are currently a half dozen redistricting reform bills filed that haven’t even gotten a hearing this session.

People from across the state will gather at the legislature for the lobby day and will call on lawmakers to make redistricting reform happen. There are planned events throughout the day and people will have a chance to speak directly with their lawmakers and legislative leaders.

There will also be a special presentation by members of the California Citizens Redistricting Commission on how their state successfully implemented a nonpartisan redistricting process. The day will end with a people’s hearing on redistricting reform legislation.

The pending redistricting reform bills at the legislature have broad bipartisan support, including House Bill 69, which was introduced nearly three months ago and is sponsored by a majority of state House members.

The U.S. Supreme Court is also expected to make a decision in the next month about whether to put limitations on partisan gerrymandering. It heard two North Carolina sibling cases about Republican partisan gerrymandering in March and a Maryland case at the same time about Democratic partisan gerrymandering.

Below is a description of each of the current bills at the legislature, per the North Carolina Coalition for Lobbying and Government Reform:

House Bill 69 — Nonpartisan Redistricting Commission

  • Not a constitutional amendment, final approval remains with General Assembly
  • 11-person commission made up of voters from a pool nominated by legislative leaders — 4 Democrats, 4 Republicans and 3 not affiliated with either major party. Commissioners shall represent the state’s racial, ethnic, geographic and gender diversity.
  • The commission will hold a total of 21 public hearings both before and after the drawing of the maps, create the maps in a transparent public process and encourage citizen participation.
  • Once the commission completes and approves a redistricting plan, the plan will be sent to the NC General Assembly, which will vote on the maps without altering them. If the NC General Assembly rejects the maps, they must explain why. The Commission will redraw maps and submit them again to the NC General Assembly.

House Bill 140 — The FAIR Act

  • Constitutional amendment—requires 60% support in each house to place it on the ballot. Then, a majority of voters must approve the amendment before it is added to the NC Constitution.
  • Maps will be drawn by legislative staff, with an advisory commission, and NC General Assembly will retain authority over passage of the maps. It does not establish an independent commission.
  • The advisory commission will answer questions from the legislative staff, authorize policies for the release of information related to the redistricting plans, and organize, conduct and summarize 3 public hearings.

House Bill 648 — NC FAIR State and Congressional Districts Act

  • Not a constitutional amendment, final approval remains with General Assembly
  • Creates Independent Redistricting Commission with 16 members—11 voting members and 5 non-voting alternates. 8 members chosen by legislative leadership in both houses, these 8 members chose the final 3.
  • Commission hires a special master to draw at least two sets of maps for the North Carolina General Assembly and US Congressional districts.
  • The Commission shall determine which of the plans drawn by the special master are to be submitted to the NC General Assembly. Members of the NC General Assembly are not precluded from amending the maps or drafting their own.

House Bill 827 – N.C. Citizens Redistricting Commission

  • Not a constitutional amendment, final approval remains with General Assembly
  • Creates 15-member commission divided among the two largest parties and voters unaffiliated with both major parties. 9 are appointed by 2 each from the legislative leadership in both parties and 1 by the Governor. The remaining 6 will be chosen by the original 9.
  • The State Auditor shall provide the commission with a list of names of potential special masters who may draw plans should the Commission not be able to agree on maps.
  • Requires commission to hold a minimum of 20 hearings across the state. It shall provide the public with resources so that they may understand and review any plans. It shall also provide access to the resources needed to draw maps using the mapping software and census data.
  • The Commission and its members are subject to NC’s public meetings law.

Senate Bill 673 — N.C. Citizens Redistricting Commission

  • Constitutional amendment—requires 60% support in each house to place it on the ballot. Then, a majority of voters must approve the amendment before it is added to the NC Constitution.
  • The N.C. Citizens Redistricting Commission has final say on maps, no role for General Assembly.
  • Creates a 15-person commission—5 Democrats, 5 Republicans and 5 from neither of the two largest parties. 8 members are appointed by leadership of both parties in the NC House and Senate from a pool of voters that have applied and been pre-cleared for eligibility. The final 7 are chosen at random. Applicants must meet strict criteria to limit partisan influence.
  • Commission shall hold at least 20 hearings—10 before the plan is drawn and 10 after an initial plan created but before it is finalized.
  • Commission shall make resources available to the public to permit them to draw their own maps, understand the process, and submit comments. It shall do all it can to facilitate the ability of the public to provide substantive comments on any proposed plan.
  • If the Commission is unable to adopt a plan, it shall hire a Special Master to draw a plan, which shall be adopted by the Commission.

House Bill 574 and Senate Bill 641 — Fix Our Democracy

  • Identical bills that address a number of democracy reform issues, including redistricting reform.
  • Constitutional amendment—requires 60% support in each house to place it on the ballot. Then, a majority of voters must approve the amendment before it is added to the NC Constitution.
  • Creates a 15-member Citizens Redistricting Commission—5 Democrats, 5 Republicans and 5 not from either major party. Passage of maps requires at least 9 votes with 3D, 3R, 3U votes.
  • Legislative leaders in both chambers select 2 commissioners each. These 8 commissioners select the remaining 7 commissioners from the remaining pool (need 6 votes minimum in this process)
  • Commissioners then select from a list of viable Special Masters submitted by the State Auditor. The Special Master will draw the maps if the Commission is unable to agree.
  • The Commission shall hold 20 public hearings—10 before the maps are drawn and 10 after the maps are drawn to encourage citizen involvement and participation.
Courts & the Law, Defending Democracy, News

Court: Plaintiffs in partisan gerrymandering case have to share all of late mapmaker’s data with parties

The plaintiffs from North Carolina’s partisan gerrymandering state court case must turn over all of the late GOP mapmaker’s data given to them by his daughter to other litigants, including sensitive medical, tax and family information, according to a three-judge panel.

However, before allowing the other parties to the case (within 48 hours) to copy and inspect the hard drives “in their entirety as originally received,” plaintiffs can designate any files or folders they consider private as “HIGHLY CONFIDENTIAL/OUTSIDE ATTORNEYS’ EYES ONLY,” according to a court order released Wednesday.

Thomas Hofeller’s daughter turned over four hard drives and 18 thumb drives to the plaintiffs’ attorneys in the Common Cause v. Lewis case in March as part of a subpoena. The documents and data were immediately turned over to a third-party vendor for processing, where it became clear there were personal files of Hofeller’s intermingled with professional ones.

The plaintiffs wanted the court to clarify a legal rule about whether they had to withhold the personal information and then allow the parties to inspect and copy everything else or just allow it all to be inspected.

The legislative defendants argued they were entitled to see everything under the law. The plaintiffs said they would follow whatever the court ordered, but just could not disseminate on their own that kind of personal information.

In other issues the court addressed, the panel ordered the legislative defendants to pay the plaintiffs expenses and attorney’s fees for failing to provide adequate discovery responses.

And finally, the panel partially granted legislative defendants their request to extend the time for their expert reports to be turned in, but noted their abridged timeline was largely due to their own delays. The panel denied intervener defendants’ request to extend their expert report deadline.

Read the full court order below.

18 CVS 14001 Order 5 1 2019 (002) (Text)

Courts & the Law, Defending Democracy, News

NAACP to NC Supreme Court: Can unrepresentative, illegal supermajority amend the constitution?

The North Carolina NAACP has officially asked the state Supreme Court to review and have the final say in its challenge to two constitutional amendments that were made after the last election.

“For many years, the democratic foundation of North Carolina has been under siege,” the requests begins.

The document gives a short history of how the North Carolina General Assembly racially segregated voting districts and diminished the voting power of African-Americans, and how they were unconstitutionally constituted until January of this year. Because of that, the NAACP holds that they did not have the authority to put two constitutional amendments before the people — one that requires a photo ID to vote and another that caps the state income tax at 7 percent.

The organization states in the court document that the high court should step in over the state Court of Appeals because there is significant public interest, delay in final adjudication could cause substantial harm and court workload, among other reasons.

“This case addresses a fundamental question about our democratic system of government in North Carolina: Can a General Assembly that is infected by a sweeping, unconstitutional racial gerrymander that produced an unrepresentative and illegal supermajority, be permitted to use that supermajority to amend our State’s constitution?” the document asks.

Read the full request below.

Supreme Court Filing (Text)