Courts & the Law, News

The latest on NC’s racial gerrymandering case: Will a special master get involved in a map redraw?

A decision was not reached Thursday in a federal racial gerrymandering case about whether or not proposed remedial legislative maps would be approved, but a three-judge panel indicated it could still appoint a special master to take on the task of drawing constitutional districts.

“A court does not want to get in to policy decisions,” said Judge James Wynn, of the 4th Circuit Court of Appeals. “A court does not want to pick sides.”

He was speaking to Anita Earls, Executive Director of the Southern Coalition for Social Justice and lead attorney for the plaintiffs in North Carolina v. Covington.

“Why would we pick yours?” Wynn asked of alternative maps the plaintiffs presented to the court.
If the court appointed a special master to redraw the maps, perhaps they could stay out of the fray, he added.

Earls, who along with Edwin Speas, challenged specific districts within North Carolina lawmakers’ new proposed maps, did not object to Wynn’s line of questioning and said the only reason she would point to for adopting the plaintiffs maps was time — districts need to be implemented quickly.

“Well, we might be able to have some say in that too,” Wynn responded.

The judges also issued an order a short time after Thursday’s hearing that requires all parties in the case confer with each other and submit the names of at least three people who are qualified to serve as a special master.

The order states it is an effort to avoid delay in the event the plaintiffs’ objections are sustained. The list of names is to be filed by Wednesday and if the parties can’t agree, the judges can select a special master without their input, the order states.

To use race or not to use race?

Earls, Speas and Phil Strach, who represents the legislative defendants in the case, got into the weeds of several technical legal arguments Thursday with regard to the redistricting process.

One of the more contentious points, unsurprisingly given the nature of the case, surrounded race.
Earls and Speas contended that despite their repeated claims about not using race, two Senate districts and two House districts remained racially gerrymandered and looked strikingly similar to the districts already ruled unconstitutional.

“This is not a contest between the plaintiffs’ map and the 2017 proposed remedial maps,” Earls said.
She added that the question judges have to answer and the defendants have the burden to prove is whether or not the proposed maps cured the constitutional violations in the 2011 legislative maps. She cited multiple reasons for why they did not, including a combination of Black Voting Age Populations (BVAP), split precincts and shapes.

“To cure a racial gerrymander, the answer is not to say, ‘oh, we’re not going to use race at all,’” Earls said.
U.S. District Court Judge Thomas Schroeder asked several questions about just how the court was supposed to prescribe that the legislature apply racial data to the mapmaking process.

“In what way is a remedial map to be drawn considering race?” he asked. “I’m having trouble understanding how they’re supposed to take into account to fix a problem where they took race into account.”

Earls contended that the only way to ensure that a racial gerrymander was corrected was to use race.
Strach maintained that adopting an overall policy on race is what the legislature was criticized for, so they did not consider race at all this time around.

The judges questioned legislators’ use of Tom Hofeller to draw the new maps since he drew the unconstitutional maps in the first place. They wondered whether his knowledge of the racial makeup from districts in the first mapmaking process bled over into the new process.

Strach told the judges that Hofeller did not even have race data on his computer that he used to make the maps.

“How do we know that?” asked U.S. District Court Judge Catherine Eagles.

Strach replied, “just looking at the districts on their face.” He added that there was no evidence that race was used, and he and Wynn argued some about whether or not some of the districts in the new maps looked like the districts in the old maps.

“How do we ignore virtually what we see,” Wynn asked of the similar districts.

‘Caught in the middle’

Read more


DEQ names head of science advisory board, will tackle emerging contaminants in drinking water

Jamie Bartram, founding director of The Water Institute at UNC Chapel Hill. He is the new chairman of the Secretaries’ Science Advisory Board. (Photo: UNC Chapel Hill)

A distinguished UNC professor who has written about the Flint water crisis and other drinking water contamination issues, is the chairman of the newly formed state Secretaries’ Science Advisory Board, the Department of Environmental Quality announced today.

Jamie Bartram, a professor and founding director of The Water Institute at UNC Chapel Hill, will lead the board. Its first charge is to study ways to better protect public health and the environment from new or emerging chemicals of concern, including GenX and hexavalent chromium.

The Water Institute is a division of UNC’s Gillings School of Global Public Health. Institute researchers study and report on pressing water quality issues, not just in the U.S., but worldwide.

It has conducted important research in North Carolina, including a 2014 analysis that showed racial disparities in access to municipal water and sewer services. For example, in Wake County, Black communities are significantly less likely than white communities to be connected to a municipal water supply system.

The science panel is appointed by DEQ Secretary Michael Regan and Department of Health and Human Services Secretary Mandy Cohen. It will meet at least six times each year.

The panel has several duties:

  • perform or recommend reviews and evaluations of contaminants released to the environment;
  • consult on potential DEQ regulations about those contaminants;
  • assist both agencies in identifying contaminants of emerging concern
  • help determine whether the contaminants should be studied further;
  • assist the secretaries in providing expertise to evaluate the human and environmental impacts of exposure to hazardous contaminants;
  • and provide input to DHHS as the agency establishes health goals for emerging contaminants.

Earlier this year, Gov. Roy Cooper expanded the scope of the panel, formerly known as Secretary’s Science Advisory Board on Toxic Air Pollutants.

DEQ and the DHHS have yet to announce membership of the board, which will meet Oct. 23. The meetings will be public, although the place and time have also not been announced.


Legislators will attempt to override Cooper’s veto of “The Electoral Freedom Act” on Tuesday (video)

Legislative leaders reportedly will attempt to override Gov. Roy Cooper’s veto of Senate Bill 656 next week.

The so-called “Electoral Freedom Act” eases ballot access requirements for third party candidates, but also seeks to eliminates next year’s primary election for judicial races and district attorneys.

As Melissa Boughton explains in her story today, the move by lawmakers to redraw judicial and prosecutorial districts is drawing concern from national groups:

Anyone who has been following General Assembly news this year should not be surprised. Douglas Keith, counsel with the Democracy Program at the Brennan Center for Justice, said the state has been “more effective than most” at getting bills passed in what appears to be a trend across the nation to manipulate state courts for partisan advantage.

The Brennan Center for Justice at New York University School of Law is a nonpartisan law and policy institute that seeks to improve our systems of democracy and justice. Its staff regularly studies and analyzes judicial changes across the nation, including in North Carolina.

“The courts’ role in our democracy is to protect rights and uphold the rule of law, particularly when it comes to the other political branches,” Keith said. “To do this, judges need to be able to act independently and without fear of retribution from the political branches, and the public needs to have confidence that courts are not just another political actor.”

Rep. Graig Meyer is also voicing criticism about the effort by Republican legislative leaders to manipulate the state court system for political advantage. Meyer tells NC Policy Watch that eliminating the primary, as SB 656 would do, is one of the ‘worst forms of government.’

Meyer appears this weekend on News & Views with Chris Fitzsimon. Click below for a preview of that radio interview:


What you should know about Trump’s latest disastrous action on healthcare

A statement from the North Carolina Justice Center (the parent organization of NC Policy Watch) explains today’s potentially disastrous Trump administration effort to further undermine the Affordable care Act:

Trump Executive Order Jeopardizes Health Care Affordability and Access for North Carolinians with Pre-Existing Conditions
Order will bring back junk insurance plans, destabilizing health insurance markets, increasing premiums for older and sicker people, and weakening consumer protections

RALEIGH (October 12, 2017) — Today, the Trump administration announced an executive order that continues the pattern of previous efforts—including increasing premiums in 2018 by holding payments to insurers hostage, slashing funding for outreach and promotion by 90 percent, gutting funding for in-person enrollment assistance, and using taxpayer dollars to create pro-repeal ads, among others—to sabotage the Affordable Care Act.

The executive order itself instructs federal agencies to explore regulatory changes that could severely destabilize the insurance market; in particular, expanding the sale and use of short-term, limited-duration policies as year-round coverage options jeopardizes consumer protections.

By expanding the sale of loosely-regulated short-term plans, the order aims to pull out young and healthy enrollees from the Marketplace and put them into bare-bones policies with sky-high deductibles, dollar- and service-limits on coverage, and pre-existing condition discrimination. By trying to create a parallel health insurance market for the young and healthy, the Trump administration would make the ACA’s Marketplace look like a de facto high risk pool, as low-risk consumers are siphoned off into junk insurance markets.

“Even the young and healthy consumers who get lured into these junk plans will eventually suffer: after all, healthy people can become sick people,” said Brendan Riley, Policy Analyst for the NC Justice Center’s Health Advocacy Project. “The healthy eventually need health care, but they may be left without coverage for their new conditions or without protection against financial ruin when the unexpected—an illness or an accident—happens.”

Expanding access to association health plans could also destabilize and segment the health insurance market. Regulatory changes could allow these plans to play by different rules, undermining consumer protections, enabling discrimination against people with pre-existing conditions, and weakening the oversight authority of state regulators. In particular, if these plans can be sold to self-employed individuals, they will further segment and destabilize the individual insurance market.

This executive order comes less than a month before the Open Enrollment period for 2018 begins. Consumers may be confused by all the headlines and political attacks on health care, but they can still enroll during the shorter Open Enrollment period starting November 1 and ending December 15. More than 9 out of 10 North Carolinians who enroll qualify for financial help to reduce their costs, and North Carolinians can schedule a free in-person appointment with an expert by calling 1-855-733-3711 or logging on to


Who are the UNC Board of Governors task forces? We’d love to tell you.

If you’ve been following our coverage of the UNC Board of Governors the last few weeks, you’ll have seen us write about two task forces: one on how the board conducts its meetings and another on the purpose of UNC General Administration.

Yesterday, we also attended a sub-committee meeting on a “free expression” policy being drafted for the University system.

A simple question will have occurred to many readers of these stories:

Just which members of the Board of Governors make up these task forces and sub-committees?

It’s a good question and we’d love to tell you. We’ve been asking over the last two weeks ourselves.

But so far, no list of the members of these task forces and sub-committees has been made publicly available and our request for their membership has not been answered.

Any member of the full board can attend the task force and sub-committee meetings – live or via tele-conference – and many who are not technically part of the smaller groups do, out of curiosity and to keep on top of the issues. But the question of just which members have been appointed to them remains…well, a question. Attending the meetings and noting every member there doesn’t properly answer it…and so far, no one else and nothing else does either.

A list of all Board of Governors members exists on the board’s section of the University system website – as does the membership of standing committees. But the task forces, which are doing important work that will make its way to the full board, have not gotten the same treatment.

The task forces were constituted at the board’s last full meeting, last month…but since the minutes of that meeting have not yet been approved and posted, no member of the public who wasn’t actually in the meeting currently has access to that information. The minutes of last month’s meeting won’t be approved and posted until after the board’s *next* meeting — which is in November.

We have some other outstanding requests for documents related to the board and the UNC system – things that may take a little while to compile and for which we understand having to wait a reasonable period.

But something as simple as the membership of task forces – which, incidentally, do not seem to be publishing their agendas or related meeting documents in any way that is accessible to the public – seems simple enough to provide as a matter of course. It’s the sort of thing small town boards of aldermen have no trouble getting up on publicly available websites before their task forces and sub-groups meet.

We’ll keep attending these meetings, keep informing you about them and – as soon as we can actually confirm their official membership – we’ll get that to you, too.