Courts & the Law, News

Josh Stein, lawmakers to court: states have right to choose judicial primary elections or not

Attorney General Josh Stein and the General Assembly found a rare bit of common legal ground today when they filed a joint response contending a federal court does not have jurisdiction to order a state to hold judicial primaries.

Stein, who represents the state the Board of Elections and Ethics Enforcement, and attorneys representing the General Assembly, were responding to the state Democratic Party’s injunction over the Electoral Freedom Act, which eliminates the 2018 judicial primaries.

The response states that the Constitution gives states the right to choose whether to institute primary elections.

“There is no right under the United States Constitution to a primary election,” the response states. “Rather, the Constitution leaves it to the states to regulate their elections in accordance with federal laws and the Constitution.”

The response also alleges that the Democratic Partly lacks standing to bring the injunction.

It also says the state and the Board should be dismissed because both have constitutional immunity from such litigation.

A hearing in the matter will take place at 9:30 a.m. Jan. 24 at the federal courthouse in Greensboro. You can read the full response below.

Judicial Primary Response by NC Policy Watch on Scribd

Commentary

Trump administration pushes for wasteful, ineffective work requirements in Medicaid

Yesterday, health care advocates in North Carolina and across the U.S. were officially alerted to yet another fight to ensure that people retain health coverage and access to care. While officials in the Trump administration’s Centers for Medicare and Medicaid services (CMS) are framing their new “Dear State Medicaid Director letter” as “new policy guidance for states to test community engagement for able-bodied adults,” the real purpose is to create work requirements and other barriers for people seeking to enroll in and keep their Medicaid coverage.

As North Carolina has not expanded Medicaid, the only adults who are eligible for coverage are pregnant women with incomes of up to 196 percent of the federal poverty level, parents and/or caretakers with incomes up to 44 percent of the federal poverty level, and the aged, blind and disabled.

However, North Carolina currently has a pending Section 1115 Waiver proposal before federal officials that would transform Medicaid. The amended waiver application has language referencing Carolina Cares or HB 662, which would increase access to Medicaid to adults up to 138 percent federal poverty. While Carolina Cares is awaiting legislative action from the General Assembly, it should be noted that Carolina Cares has language to impose work requirements if it should be enacted.

While perhaps superficially appealing at some level, the idea of formal, bureaucratic work requirements for Medicaid recipients has been shown time and again to be of no real value. Indeed, there is significant research from another safety net program (TANF) that debunks the CMS claim that work requirements somehow lift people out of poverty. The research shows that the impact of work requirements was actually very minimal and did not reduce poverty.

What’s more, even if accepts the premise behind them, as a practical matter, such requirements are unnecessary. Research shows that 80 percent of Medicaid enrollees already belong to working households and that 60 percent are working themselves. Considering these data, it appears that states will have to deal with the administrative burden and cost of tracking adults’ working status unnecessarily. Not surprisingly, when it comes to cost and administrative burden, CMS is not planning on providing federal resources to implement or administer work requirements or other related activities.

The bottom line: Though they may make for good political headlines, Medicaid work requirements are wasteful and ineffective. If North Carolina lawmakers move forward to close the coverage gap with such a requirement appended on, it’s essential that they consider factors such as the availability of jobs or even likelihood of being able to establish skills training programs in some of the more low-resource communities in the state. All that said, lawmakers should also note that, even when it’s implemented imperfectly, Medicaid can bring jobs across the state, help families become more financially stable as they avoid medical debt, and help them stay healthy so that they can contribute to their communities.

Courts & the Law, News

Lawmakers request help from SCOTUS after ‘disruptive’ partisan gerrymandering ruling

The U.S. Supreme Court should step in to halt a lower court’s partisan gerrymandering ruling in North Carolina because of an “eleventh-hour disruption,” according to an emergency document filed Friday.

The U.S. District Court this week struck down the state’s 2016 congressional map as an unconstitutional partisan gerrymander. It also ordered that lawmakers redraw the map within two weeks and stated that it intends to appoint a special master to draw an alternate in case their plan does not pass muster.

The 200-plus page court order cites lawmakers’ overt partisan intent as the foundation for violations of the Equal Protections Clause, the First Amendment and Article I of the U.S. Constitution.

Lawmakers took issue in the emergency application for stay with both the three-judge panel’s “theories of partisan gerrymandering” and their decision to hire a special master at the same time they ordered the legislature to redraw the map.

“In sum, the three-judge panel has used an entirely novel legal theory to hopelessly disrupt North Carolina’s upcoming congressional elections,” the document states.

The majority opinion was written by Judge James Wynn, a President Barack Obama appointee, and joined by Judge Earl Britt, appointed by Jimmy Carter. Judge William Osteen, a George W. Bush appointee, wrote a separate opinion concurring in part and dissenting in part.

They contend that the decision is “all the more problematic because it will inevitably interfere with North Carolina’s congressional election cycle.” Candidate filing opens Feb. 12 and runs through the end of the month.

“If the 2018 election must proceed under a map other than the one that governed the 2016 congressional elections, then the Board of Elections needs lead to time assign voters to their new districts, potential candidates need lead time to evaluate the new map and make filing decisions, and voters need lead time to understand where they will be voting and for whom,” the motion states.

Lawmakers suggest that the more “sensible course” is to stay the federal court’s decision until the U.S. Supreme Court makes its decision in a separate partisan gerrymandering case out of Wisconsin, Gill v. Whitford. The Gill decision could have sweeping consequences for redistricting processes across the nation.

They request a ruling from the highest court by Jan. 22. You can read the full motion below.

Motion for Stay by NC Policy Watch on Scribd

Courts & the Law, News

Veteran GOP lawmaker on merit selection: ‘I don’t think honestly the public is gonna accept it’

Sen. Dan Bishop

It’s not yet known how long the General Assembly’s current special session will last, but Sen. Dan Bishop said it’s likely some form of judicial reform will pass before it’s over.

“I do not know exactly what schedule something will advance on, but it is likely that there will be some resolution to the deficiencies in the voting districts this special session, I would say,” he said Thursday.

A joint House and Senate committee met Thursday for the first time to get more information about judicial redistricting — a plan the House prefers — and “merit” selection — a plan the Senate favors.

Much of the three-hour meeting presented the same information as previous, respective House and Senate committee meetings. It was clear the divide between House and Senate members over their preferred plans still existed.

It was also clear that despite putting out a preferred judicial selection plan, the “purple plan,” Senate members had not yet thought out the full details of such a measure.

Sen. Paul Newton (R-Cabarrus, Newton) said nothing had yet been written in bill form, and that there were still a lot of details to be sorted out, including any potential safeguards to prevent a majority party from choosing judicial nominees behind closed doors and any language to ensure diverse candidates.

Veteran Rep. John Blust (R-Guilford) expressed concern about the judicial selection plan and how it would be both perceived and used by either party in control. He said he did not think a constitutional amendment to take away the people’s right to vote for judicial candidates would be approved by the voters.

“The hard part is in the details of who gets to determine the merit and how do you work that out,” he said. “But the practical problem I think I have with it — I think if we came up with a foolproof system, I don’t think honestly the public is gonna accept it.”

Rep. John Blust

Blust also said he would like to see lawmakers reinstate the 2018 judicial primaries. He said he was worried about how many people would run for

“Knowing the calls I get already when there’s two names on the ballot for each position, I can just imagine what the public is gonna do when there’s … 10 names or possibly 15 for district court judge,” he said. “I think that’s gonna be a mess and is not going to reflect well on us if we don’t allow the number of people who file to be paired down in a primary.”

Lawmakers said they eliminated the primaries to allow more time for judicial redistricting. In previous years when there has not been a judicial primary, it’s resulted in more candidates and slim-margin wins.

With that in mind, Blust predicted more people would be likely to file for a judicial seat.

“I don’t know in a rural county, but in an urban county, I think almost every assistant public defender and every assistant [district attorney] dreams of being a judge,” he said, “And I just think you’ll see a boatload of names and the November ballot is going to be very long.”

The North Carolina Democratic Party has filed a federal request to stop the bill eliminating judicial primaries. A hearing in the case will take place at 9:30 a.m. Jan. 24 in Greensboro.

Bishop said there would be at least one more joint committee meeting. He did not know how long the special session would continue on.

Commentary

New study calculates charter schools’ negative financial impact on North Carolina school districts

A new report from Duke University’s Helen “Sunny” Ladd and University of Rochester’s John D. Singleton uses North Carolina data to conclusively show the negative impact charter schools have on the finances of traditional, inclusive public schools.

The report confirms what traditional, inclusive public school advocates have been saying for years: charter schools drain resources from our public school system. School districts face a number of fixed costs such as utility costs and central office administration. When a student leaves the traditional public school system for a charter school, the school district loses the average funding for a student. But the district still incurs these fixed costs.

For schools, even many variable costs are rather fixed in the short term. A district losing funding on account of a student’s departure can’t fire 1/20th of a teacher; the school bus may still have to run the same bus route.

Importantly, the researchers are able to use detailed balance sheet data to put a dollar figure on that drain. The report estimates that increasing charter enrollment in Durham has reduced per-student funding by $500 to $700. These costs have become more pronounced as the share of charter students in Durham now approaches 16 percent.

The report also looks at the fiscal impact of charter schools on five rural districts where the charter enrollment figures range from 3 percent to 14 percent. For Iredell and Orange Counties, the report estimates a negative impact of between $200 and $500 per student. Estimates are slightly smaller for Buncombe, Cabarrus, and Union Counties.

The research is particularly important given the rapid growth of the charter sector since the state lifted the charter school cap in 2011. Since then, the number of charter schools has increased from 99 to 173, and the number of students attending charter schools has risen about 150 percent. This new report indicates that traditional, inclusive schools will continue to face added budget pressures if the charter sector grows further.

The report highlights the need for additional state funding to ease the fiscal burden charters place on inclusive public schools. One recommendation is for the state to provide “transitional aid” to mitigate the fiscal impact of charter school openings or expansions.

Of course, charter schools aren’t the only school choice policy creating fiscal pressures for public schools. Vouchers and voucher-like “education savings accounts” similarly reduce per-student funding for public school systems without providing relief on fixed costs.

Hopefully, this report, data on the weak performance of recently-opened charter schools, and further evidence that North Carolina’s charter schools are increasingly contributing to racial segregation will cause General Assembly leaders to reconsider their current appetite for additional charter school expansion.