Commentary, News

Election security in state officials’ hands in light of statements by Trump, Tillis

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The North Carolina State Board of Elections (SBE) met Thursday to, among other things, consider certification of new voting systems. Before the board’s discussion, a few members of the public presented prepared statements. The first came from Lynn Bernstein, a North Carolina voter, who spoke about the extreme risk to election security posed by electronic voting machines, especially those created by Election Systems and Software.

Election Systems and Software (ES&S), the nation’s top voting machine maker and one of the companies whose machines the NC SBE plans to certify, admitted in a letter to U.S. Senator Ron Wyden (D-Oregon) in April of 2018 that it had installed the remote-access software pcAnywhere on a number of election systems that it had sold. This admission was in direct contrast to a previous statement ES&S made in February of that year, in which the company stated that none of its voting systems had ever been sold with any remote-access software on them.

“Remote-access software and modems on election equipment is the worst decision for security short of leaving ballot boxes on a Moscow street corner,” said Bernstein, quoting a statement Sen. Wyden made to Motherboard. Bernstein argued that a company that had repeatedly lied about the nature of its machines and had only revealed the truth after being caught in its lies could not be trusted to help keep North Carolina’s elections safe.

“This begs the question: why is this board trusting ES&S’ word that these machines are secure and accurate?” asked Bernstein.

Bob Cordle, the chair of the SBE, pushed back against Bernstein’s arguments.

“In my experience… we had more problems with hand ballots than we did with any other ballots,” said Cordle. “There was more lying, cheating, and stealing going on… and also questions about… there were lots of questions about whether the oval was filled in, whether both ovals were filled in, so there are problems with hand ballots, too.”

“The research showed that 0.007% of ballots have stray marks,” said Bernstein. “That’s very, very few.” Read more

News

Report: NC drops in health rankings

The non-profit Commonwealth Fund released its annual Scorecard on State Health System Performance this week.

North Carolina fell one spot from last year in the national rankings of 50 states and Washington, D.C. — from 35th in the nation to 34th.

The ranking shows North Carolina making progress on health care disparities (up five points) but slipping in avoidable use and cost of health care and access and affordability (both of which decreased four points in the ranking).

While the state’s most improved indicators included more adults getting annual tests for diabetes and more children who needed mental health care getting it, fewer children are getting medical and dental preventative care and preventable hospitalization for those ages 18-64 has risen.

Both those factors are tied to the health insurance coverage gap. States that have expanded Medicaid eligibility saw improvements in such measurements.


Get the full report and information about methodology here.

Courts & the Law, Defending Democracy, News

Brennan Center gives glimpse of possible SCOTUS partisan gerrymandering outcomes

As court watchers and voting rights organizations alike eagerly await a partisan gerrymandering decision from the U.S. Supreme Court, the Brennan Center for Justice is offering a preview of what could happen.

Justices heard arguments in March addressing three challenges to congressional maps — two to the 2016 GOP-drawn map in North Carolina and one to a Democratic-drawn map in Maryland. It’s expected the high court will release an opinion in the next two weeks. A decision could have far-reaching impacts for map-making processes across the nation.

The Brennan Center has advocated in its court filings regarding the cases for justices to rule that extreme partisan gerrymandering is unconstitutional, set out a clear legal standard for determining when a map is unconstitutional, and strike down North Carolina and Maryland’s redistricting plans.

Tom Wolf, counsel with the Brennan Center’s Democracy Program, said though that’s not the only way the cases could turn out — there are many potential outcomes.

But that is not the only way these cases could turn out. In fact, there are many potential outcomes. Here are five of the more likely ones and what they could mean for the future of fair maps, per Wolf:

Scenario 1: A majority of the court endorses one of the legal standards that plaintiffs have offered and strikes down at least one map.

In this scenario, the court would rule, first, that one of the legal standards that the plaintiffs, on behalf of voters, used to challenge their state’s map is the right one and, second, that at least one of the maps at issue is unconstitutional. This would be the fastest route to relief for voters: any map that the court strikes down will be sent off to the legislature to be redrawn, with the resulting map potentially in place well ahead of the next election — the 2020 primaries. Any map the court doesn’t strike could be sent back down to the trial court for more work. That case would still have a chance for more Supreme Court review before 2020. But the time window would be narrow, requiring the case to move significantly faster than is normal.

Scenario 2: A majority of the court endorses a legal standard closely tied to the facts of one of the two cases and strikes down that state’s map.

In this scenario, the court would announce a new legal standard that is closely tied to the egregious facts of one of the cases. For instance, the justices could rule in the North Carolina case that a constitutional violation occurs when (a) the mapmakers expressly intended to create and entrench a seat advantage that was statistically highly unlikely to achieve accidentally, and (b) succeeded in doing so. Under this scenario, the case that matches these facts would end with a win for voters and a new map drawn in time for 2020. The court could send the other case back down for more fact-development work in the trial court, again with a narrow window for Supreme Court review in the fall.

Scenario 3: A majority of the court announces a legal standard that we haven’t yet seen and sends both cases back down for more work in the trial courts.

In this scenario, the court would announce a legal standard that departs drastically from the standards that are already in play, perhaps making relevant certain legal issues and facts that the courts and the challengers hadn’t previously considered. Both cases would go back down to the trial courts for more fact development and legal briefing in light of this new standard, with a narrow opportunity for the justices to weigh in again next term.

Scenario 4: A majority of the court neither agrees on a legal standard, nor decides to foreclose federal courts’ consideration of future partisan gerrymandering claims.

In this scenario, the court would essentially maintain the position it has held since it issued its 2004 opinion Vieth v. Jubelirer. There would be neither enough votes to set a legal standard, nor enough to end federal partisan gerrymandering litigation altogether. The court would dismiss both the North Carolina and Maryland cases. This ruling would represent another punt on the major constitutional issue and potentially delay any further litigation until after the next round of mapping is completed in 2021.

Scenario 5: A majority of the court declares partisan gerrymandering claims can’t be heard in federal courts.

In this scenario, the court would rule that federal courts are not capable of deciding partisan gerrymandering claims and thus should not hear them — in legal parlance, declaring these claims “non-justiciable.” The court would undo the North Carolina and Maryland voters’ victories in the trial courts and terminate their cases. This ruling would result in the federal courts being shut completely to these kinds of claims. The court came close to a ruling of this kind in Vieth, with four justices, led by Justice [Antonin] Scalia, contending that partisan gerrymandering claims were non-justiciable.

Bonus: Michigan, Ohio, and Wisconsin

North Carolina and Maryland aren’t the only partisan gerrymandering cases in the federal courts right now. There are also challenges in Michigan and Ohio — which both resulted in wins for voters after trials — as well as Wisconsin — which is set for trial in July. The Supreme Court’s opinions in North Carolina and Maryland will be the new law of the land and will govern all three of the remaining cases.

What happens to those cases will depend on the court’s ruling. If the court sets a legal standard for partisan gerrymandering cases, the Justices could well send Michigan and Ohio back to the trial courts for more proceedings under that standard. And the standard would shape the Wisconsin case by determining what the plaintiffs would have to show at trial to win. If the court closes its doors to gerrymandering claims, all three of these cases would be dismissed and the voters’ recent victories in Michigan and Ohio undone.

Commentary, Environment, News

The week’s Top Stories on Policy Watch

1. PW exclusive: Moore County locates new elementary school near pollution, hazardous waste sites in Aberdeen

Racial, economic composition of school raises environmental justice concerns  

On the edge of Aberdeen lay a lovely tract of land that was easy to miss while speeding down Highway 5. Stippled with young to middle-aged pine trees, it historically had been used for timbering, but now the landowner, BVM Properties, was ready to sell.

Where BVM saw an opportunity to offload land, which some who knew the town’s history viewed as undesirable, Moore County School District officials envisioned possibility: The 22 acres would accommodate a new and larger elementary school for Aberdeen kids. It would be filled with light and equipped with modern technology, and plenty of outdoor space where its 800 children in Pre-K through fifth grade could play. [Read more…]

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2. The case of the vanishing budget: How N.C.’s secretive budget “process” is bad for the public good

If, in this precise moment, you’re wondering where North Carolina’s multi-billion dollar budget is, the same one that sets crucial policy and spending parameters for state agencies, that dictates classroom funding levels for 1.5 million schoolchildren, that sets pay levels for thousands of state employees, retirees and teachers, it’s in the same place it’s always been.

Not, I fear, in a public space – a mic’d up committee room or in a clerk’s trusty hands – it exists, without hyperbole, mostly in Senate President Pro Tem Phil Berger’s brain.

And, to a lesser extent, in the care of the most powerful lawmakers atop a GOP-dominated House and Senate conference committee, a committee that, as of this moment, has yet to schedule a single public meeting, or a single hearing to listen to the public, in all its wild, untamed glory. [Read more…]

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3. Refusal to close the Medicaid coverage gap echoes a dark era from the South’s past

 

In his recent “must read” book on the history of Jim Crow and how it shaped (and was itself shaped) by a typical town of the deep South (“Hattiesburg: An American City in Black and White,” Harvard University Press), UNC Chapel Hill historian Prof. William Sturkey provides numerous illuminating and, often, maddening details of the harsh realities of the racial apartheid that was conjured up and enforced by the white supremacists who dominated so much of southern society for so long.

There are the horrific stories of the lynchings and other murders carried out by white mobs. There are the stories of African-American residents who fled north when given a chance and of others who, despite the frequent terrors and indignities of Jim Crow, stayed, persevered and built lives for themselves and their families. There are the stories of white business leaders who, despite their commitment to segregation, helped inadvertently usher in change by embracing elements of modern capitalism and interstate commerce. And there are the stories of how the residents of segregated Black communities came to build their own vibrant institutions – many of which ultimately helped give rise to the Civil Rights Movement of the mid-20th Century.

About a third of the way through the book, however, Sturkey relates a truly remarkable and tragically telling anecdote from the Great Depression that rings eerily familiar in 2019.[Read more…]

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4. Despite local opposition, N.C. charter board clears two new Wake County schools

The state Charter School Advisory Board (CSAB) on Monday unanimously stood by its approval of two charters in Wake County, despite public opposition from leaders in North Carolina’s largest school district.

CSAB members said Wake officials’ concerns about Wake County Preparatory Academy and North Raleigh Charter Academy reflect “philosophical” differences about the value of charters, rather than fear of school re-segregation or charter saturation.

Steven Walker, vice chairman of the CSAB, said Wake officials have taken the position that if “parents aren’t making the choice we like, maybe we shouldn’t let them have the choice.” [Read more…]

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5. Sources link UNC-Vidant dispute to ongoing battles between Board of Governors and ECU

As lawmakers work to negotiate a final state budget by the end of the month, the ongoing conflict between Vidant Health and the UNC System continues to unfold through public jabs and in private mediation.

In the balance:

Tens of millions in Medicaid reimbursements to one of eastern North Carolina’s most vital hospital systems.

Vidant Medical Center’s status as East Carolina University’s teaching hospital.

And the direction — and independence — of the governing board of the hospital. [Read more…]

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6. NC Sheriffs’ Association changes stance on anti-immigration bill to support harsher version


The North Carolina Sheriffs’ Association has backed down from its opposition of House Bill 370, an anti-immigration measure drummed up by Republican legislators who are using the Trump administration’s rhetoric to try and force law enforcement into working with U.S. Immigration and Customs Enforcement (ICE).

A Senate Rules committee heard an updated version of HB 370 yesterday but did not vote on the measure. It was referred to the Senate Judiciary committee, and if it gets through there, it will be re-referred to Senate Rules.

Changes to the bill were made after some lawmakers agreed to work with the Sheriffs’ Association and they crafted an alternative to the initial proposal, which would have punished law enforcement that didn’t honor ICE detainer requests with a hefty fine.[Read more…]

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7. Catch-up on our latest Apple podcasts hosted by Policy Watch Director Rob Schofield. 

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8. Weekly Editorial Cartoon:

By John Cole

Courts & the Law, Defending Democracy, News

NC Sheriffs’ Association changes stance on anti-immigration bill to support harsher version

The North Carolina Sheriffs’ Association has backed down from its opposition of House Bill 370, an anti-immigration measure drummed up by Republican legislators who are using the Trump administration’s rhetoric to try and force law enforcement into working with U.S. Immigration and Customs Enforcement (ICE).

A Senate Rules committee heard an updated version of HB 370 yesterday but did not vote on the measure. It was referred to the Senate Judiciary committee, and if it gets through there, it will be re-referred to Senate Rules.

Changes to the bill were made after some lawmakers agreed to work with the Sheriffs’ Association and they crafted an alternative to the initial proposal, which would have punished law enforcement that didn’t honor ICE detainer requests with a hefty fine.

An ICE detainer is a request for local law enforcement to hold individuals they believe are not lawful citizens in jail or prison for up to 48 hours until the federal agency can take custody and begin deportation proceedings. The individuals targeted by detainer requests are typically otherwise eligible for release from jail or prison.

The detainer requests are not judicial orders signed by any court official, and they are not arrest warrants that require any kind of finding of probable cause. Because they are requests, local law enforcement can choose whether to enforce them or not, and most urban areas across the state have chosen to only work with ICE as much as the law requires (which means not volunteering to honor those requests or any others from the federal agency).

The Sheriffs’ Association initially opposed HB 370, in part, because it infringed on the constitutional right of sheriffs to make law enforcement decisions for the communities who elected them.

A memo about the new version of the measure states that it “is designed to protect the 4th Amendment due process rights of the person in custody while providing maximum public safety for the community.”

The new version of HB 370 extends the time a person can be held when an ICE detainer is in place from 48 hours to 96. It also removes some liability from sheriffs and law enforcement officials across the state who honor ICE detainers and instead makes judicial officials in charge of whether a person will be ordered to be held in custody. Though the way the law is written, there is no room for discretion — those officials have to order someone to be held in custody if their identity matches the ICE detainer request.

Instead of facing a fine, the new version of the measure would allow for law enforcement officials to be removed from office by a superior court judge if they fail to comply with HB 370.

The Sheriffs’ Association memo doesn’t address that portion of the bill. It does state though that the 96-hour time period in the bill reflects the realities of law enforcement operations. It also states that its formal position on the new version of the bill is that it “provides an appropriate and careful balance under the Constitution for the rights of the accused and for the public safety of our communities.”

Not all sheriffs agree with that position. Several remain opposed to the bill and remain concerned about the public safety implications of forcing law enforcement to work with ICE, and in some cases, do their jobs for them.

A couple sheriffs who oppose the bill spoke out at yesterday’s Senate hearing. Others have shown their disapproval through other avenues.

This week Guilford County Sheriff Danny Rogers withdrew his support for the Association’s proposal. He said a legal review of the policy left his department with constitutional concerns.

The move won Rogers praise from immigrant groups and advocates. It also got him plaudits from an unexpected source: BJ Barnes, the long-time Guilford sheriff he defeated in November.

The two men have had few kind words for each other since election day, sparring in the media and making cross-accusations on social media.

But in a Wednesday Facebook post, Barnes, once one of the most popular Republican sheriffs in the state, explained why he too opposes both the proposed bills and the Sheriffs’ Association’s alternative proposal.

“Before anyone starts thinking I’ve gone soft on illegal immigrants who have entered this country illegally and stayed, that IS NOT the case,” he wrote. “What I am and what the attorneys are is VERY STRONG on the Constitution, specifically the Fourth Amendment. A few of you in prior post have said the Constitution does not apply to those here illegally, that is not the case. It is applicable to everyone on American soil, no matter how they got here.

“Now the legislation proposed is the same as the rulings put out by ICE that says the Sheriffs office who holds prisoners longer than law allows without proper judicial paperwork, ie warrant will be immune from civil liability meaning you the taxpayer gets sued. It has already happened across the country and others have lost millions. They, being legislators or ICE, cannot protect a county from a lawsuit if they break the law.”

Barnes went on to disparage congressional Democrats for not helping resolve immigration issues on a federal level. He also — in his signature sly, combative style — congratulated Rogers on taking his advice.

But the olive branch was the first since Rogers was one of a wave of black, Democratic sheriffs to sweep seven of the state’s largest counties in the last election, displacing some of the state’s most prominent white Republican sheriffs. Rogers was one of five sheriffs in that sweep to become his county’s first ever black sheriff.

It was that sweep — and those sheriffs subsequent unwillingness to voluntarily work with ICE — that precipitated the initial HB 370 proposal.

The ACLU of North Carolina remains opposed to the new version of the bill. It pointed out in a recent news release that it is stripped of limited protections for witnesses and crime victims.

“This is still an extreme anti-immigrant bill that will tear apart families, spread fear across communities, and harm public safety,” said Stefania Arteaga, ACLU of NC Statewide Immigrants’ Rights Organizer. “North Carolina’s towns and counties shouldn’t be forced to spend their limited resources on helping the Trump administration’s deportation force carry out its anti-immigrant agenda. Legislators should reject this bill, and if it reaches his desk, Governor [Roy] Cooper should stand up for local law enforcement and all community members by issuing a swift veto.”

In addition to the ACLU, numerous other immigrant, faith and civil rights groups urged lawmakers to reject HB 370.

In a letter, they wrote that North Carolina has become an epicenter for immigration raids and enforcement. Since the Trump Administration took office, it has experienced a 460 percent surge in ICE arrests, leading to thousands of detentions and deportations, according to information from the Migration Policy Institute.

“Our local officials should not be collaborating with such a morally wrong and rogue agency,” the letter states. “This is why HB 370 would be so devastating if it became law. The bill would enlist the sheriffs of every county into Trump’s deportation force. It turns any police interaction into an immigration status check and cause of deportation.”

And the new version of the bill, the letter adds, is only more harsh.

“With sheriff deputies forced to work for ICE, HB 370 would dramatically increase detentions and deportations, causing long-term damage to North Carolina families and communities,” the letter states.

Joe Killian of NC Policy Watch contributed to this report.