Courts & the Law, News

NAACP in voter ID, tax cap litigation appeal: Illegal actions have consequences

Illegal actions have consequences — that’s the message the NAACP is sending to lawmakers in its response to an appeal of a court’s decision to throw out the voter ID and tax cap constitutional amendments.

A Wake County Superior Court judge ruled in February that the unconstitutionally constituted legislature did not have the authority to alter the state constitution when it proposed those two amendments. Lawmakers appealed the decision, and the NAACP, which raised the legal challenges, has asked for the state Supreme Court to step in, but in the mean time, litigation goes through the state Court of Appeals.

The plaintiff’s argument in its appellate response is that the legislative defendants forfeited their claim to popular sovereignty when they drew illegal maps that racially segregated voters and diminished the political voice of African Americans. They are represented by the Southern Environmental Law Center.

It states that Republicans, who had a supermajority in the legislature at the time the amendments were created, knew they obtained power illegally and was warned about it by a federal court, but still proceeded.

“Nevertheless, Defendants, without regard for the law or the people they serve, attempted to rewrite our state’s most foundational document,” the court document states.

The legislative defendants wrote in its appeal that the lower court that ruled in favor of the NAACP focused more on the ills it perceived from redistricting than it did the merits of the case.

“The trial court became the first known court in the country to void amendments passed by a majority of voters on the theory that state legislators were usurpers and lacked the ability to propose amendments to the people for a popular vote,” the initial appeal states.

The defendants contend that the trial court encroached on the legislative branch and violated the separation of powers, so the Court of Appeals should overturn its decision.

The NAACP response states that the defendants “rely on inapposite case law, alarmism, and misinterpretation of state law.”

Gov. Roy Cooper filed an amicus brief in the case agreeing with the NAACP’s position that lawmakers should not have been able to propose an alteration to the state constitution. Read more

Courts & the Law, News

Court allows some Hofeller files to be used at gerrymandering trial, temporarily makes the rest confidential

The 35 files from deceased mapmaker Thomas Hofeller’s digital documents related to North Carolina redistricting can be used at the highly-anticipated partisan gerrymandering trial next week, according to a set of court orders released late Friday afternoon.

The rest of the 75,000-plus “Hofeller files,” however, will be designated as confidential for 60 days so the political consulting firm Hofeller co-founded can sort through them and determine which documents they can claim ownership of or some other claim of right. The firm, Geographic Strategies, had initially asked the court to mark the entirety of the Hofeller files as “highly confidential” or to destroy all the documents.

“The court is aware that many of the documents contained in the Hofeller files are public and non-privileged,” the Friday order states. “It’s objected through this order is not to shield the public documents but rather to craft a solution that respects potentially legitimate property rights of Geographic Strategies in the subset of the Hofeller files that are demonstrably proprietary.”

The order states that the plaintiffs in Common Cause v. Lewis must turn the Hofeller files over to Geographic Strategies within three business days. During the 60 days the court has designated the files as confidential, none of the parties to the gerrymandering case can disseminate any of the Hofeller files to third parties without petitioning the court for permission.

The order does not apply to the 35 documents the plaintiffs asked to use at the two-week trial, which will begin at 10 a.m. Monday at Campbell Law School. The plaintiffs also do not have to turn over the personal documents within the Hofeller files — those are confidential to everyone involved in the case.

Other courts can still exercise discretion to compel inspection of the Hofeller files, a notable stipulation in the Friday order since many of the documents likely have to do with other litigation across the country. Some of the files have already been introduced in litigation over the 2020 Census citizenship question.

While plaintiffs can’t share further information about the Hofeller files, the new court order does not appear to apply to any third parties who may have already gotten access to them. The three-judge panel in another order also denied a request from the legislative defendants in Common Cause to force the plaintiffs to turn over a list of everyone who has had access to the files.

In that same order, the court also denied the plaintiffs request to force the legislative defendants to stop purporting to designate the entirety of the Hofeller files as highly confidential and to stop demanding that they destroy all the documents.

“The Court’s primary objective at this stage in the litigation is to ensure that documents necessary for the administration of justice in this case are made available,” the order states. “The court is satisfied that such documents have been identified, that all parties have agreed that those documents are not subject to any assertions of privilege, and that the documents likely fall under the public record designation.”

In their motion allowing the 35 already identified Hofeller files to be used at the trial next week, the court said it was satisfied the plaintiffs properly authenticated the documents and that chain of custody issues were not relevant because none of the files had been altered. There could still be other types of evidentiary objections at trial, but for now, those select Hofeller files are admitted.

Finally, the court granted and denied several motions by several parties to the case regarding specific evidence and testimony that could be presented next week. Notably, it denied the plaintiffs request to preclude the legislative defendants from offering evidence or argument related to their use of information in the redistricting process to comply with the Voting Rights Act.

Read the court motions in full below:



18 CVS 14001 Order on GeoStrat Motion Re Hofeller Files (Text)



18 CVS 14001 Order on Motions in Limine Re Hofeller Files (Text)



18 CVS 14001 Order on Plts Motion for Direction (Text)



18 CVS 14001 Summary of Rulings From 7 10 2019 (002) (Text)

Courts & the Law, Defending Democracy, News

Author: 2021 will bring ‘unfettered festival of partisan gerrymandering’ after SCOTUS ruling

David Daley

North Carolina courts could be on the cusp of changing the rules when it comes to partisan redistricting, but other states might not be so inclined following the recent U.S. Supreme Court decision.

David Daley, the author of Ratf**ked: Why Your Vote Doesn’t Count, spoke with Policy Watch on Wednesday about the future of democracy in America. He was not hopeful.

“I think what you’re going to see in 2021 is an absolute unfettered festival of partisan gerrymandering, the likes of which we’ve never seen before because the Supreme Court has essentially given a green light by saying you don’t have to worry,” he said.

The high court ruled at the end of June that partisan gerrymandering challenges were out of the reach of federal courts. It pointed to the states to decide how to control redistricting, which will likely lead to a patchwork of different laws across the country.

Daley has spent significant time researching and writing about gerrymandering. His book, Ratf**ked, examines the rise of the Republican Party through strategic gerrymandering efforts and explores how it’s affected democracy in America.

He said the Supreme Court ruling means that Republican gerrymanders from 2011 will continue to provide red seawalls that likely will continue to exist for another decade. It might change if Democrats can find a way to win back one of the chambers in areas like Ohio, North Carolina, Wisconsin and Florida, but they haven’t been able to do that over the past decade.

In states where one party controls the redistricting process, Daley speculated that voters will witness them “go all out to maximize the maps to their advantage” and they’ll have terabytes of voter data and the most sophisticated mapping software ever used to slice America up even more than they already have.

He said that Republicans have taken redistricting much more seriously than Democrats over the past 40 years. While Democrats spent the past decade trying to undo the red wave, Republicans were thinking about the next redistricting cycle and how the citizenship Census question could help the mapmaking process.

“It’s strategists like Tom Hofeller who were always able to peer around the corner and see what’s better next time, while Democrats seem to focus on catching up to the last fight,” he said. “That’s galaxy brain of redistricting.”

Hofeller died last year, but he was a renowned GOP mapmaker, including in North Carolina. His digital files are at the center of a state court battle after his daughter gave them to the plaintiffs in Common Cause v. Lewis following his death.

The files already unveiled his involvement in the formation of the citizenship question on the 2020 Census — which is still an ongoing legal fight — but court watchers have said those documents could contain a lot of more information about the inner workings of the Republican Party’s redistricting strategies.

Regardless of if the documents will eventually come to light, Daley said he expects redistricting fights to look a lot different in the future after the Supreme Court’s ruling.

He’s optimistic about North Carolina’s opportunity, though, to put limits on partisan gerrymandering. The trial in Common Cause v. Lewis will begin at 10 a.m. Monday. It’s expected the whole nation will be watching, but especially those from North Carolina who have been fighting for fair maps for years.

Tomas Lopez, Executive Director of Democracy NC, said his group will be watching and he’s hopeful the state courts recognize the claims before them.

“All of us who support fair maps are going to keep fighting for them, and that effort includes legislative solutions like Senate Bill 673’s Gold Standard Citizens Redistricting Commission,” he said. “As we wait for our state courts to have their say, this legislative proposal would finally and formally take the power to draw maps away from lawmakers, remove the incentive to rig maps regardless of who’s in power, and elevate citizen input over partisanship. For North Carolinians, these and other state-level redistricting reforms and anti-gerrymandering rulings can’t come quickly enough.”

SB 673 is one of a half a dozen bills pending at the legislature this session — none have been scheduled for a hearing.

Courts & the Law, News

Senators push through victim rights bill not ready for passage to ‘keep it moving’

The North Carolina Senate rules committee unanimously pushed through a victims’ rights bill Monday acknowledging that it wasn’t ready to become law and still needed a lot of work.

“We’re just kind of trying to keep it moving so we can make the deadline of the constitution,” said Sen. Warren Daniel (R-Avery, Burke, Caldwell).

He was referring to Senate Bill 682, a measure that would implement the crime victims amendment otherwise known as Marsy’s Law. Lawmakers have had since January to pass such a bill, but SB 682 wasn’t introduced until last week. It has to be passed by Aug. 31, when the amendment becomes effective.

The bill currently requires that victims of certain crimes be given notice of all criminal court proceedings, grants them a constitutional right to address the court at those proceedings and creates a process for victims who are unhappy with their cases to submit a complaint to district attorneys and then to the court if necessary.

Warren, a bill sponsor, said its current form was not fully supported by victims rights advocates, the North Carolina Administrative Office of the Courts or the North Carolina Conference of District Attorneys. He added that they’ve all submitted amendments and that lawmakers were working to make the bill better.

Peg Dorer, Director of the Conference of District Attorneys, estimated about two weeks ago that it would cost approximately $10 million over a period of years to implement Marsy’s Law.

SB 682 does not contain a fiscal note. There is also no money in the General Assembly’s proposed budget to implement the amendment. Dorer said there is a grant for 150 victim service coordinators but that money would run out over a couple years.

The biggest changes the amendment will require, she said are twofold: “(1) it will substantially increase the number of crimes that will require victims’ rights in that it adds all felony property crimes, and (2) the constitutional amendment allows for a victim to assert their rights. We do not know how that process will work and what will be the ramifications if their rights are not met appropriately.”

“District Attorneys will continue to serve victims, as we do now, to the best of out abilities,” she said in an email. “However, without the necessary resources, we are concerned that not all victims will receive the appropriate notices.”

Other than some back-and-forth about the short “time fuse” lawmakers are working with to implement Marsy’s Law, there was no substantive discussion about SB 682. It was passed through the committee unanimously on a voice vote.

GOP lawmakers pushed hard in the fall to get the Marsy’s Law constitutional amendment on the ballot. Supporters of the amendment said victims needed teeth in the law to assert their rights. Opponents said victims’ rights already were enshrined in the constitution and enhancing them should be done by statute, not by an experimental amendment.

The Marsy’s Law campaign in North Carolina spent nearing $8 million to push for passage of the amendment. It passed with 62 percent of the vote.

Courts & the Law, Defending Democracy, News

Common Cause NC will consider dropping lawsuit after lawmakers pass ‘gold-standard’ redistricting reform

If Rep. David Lewis (R-Harnett) and other GOP legislative leaders want Common Cause NC to drop its partisan gerrymandering lawsuit, they’re going to have to enact redistricting reform first.

“If Republican legislative leaders had enacted real redistricting reform — like they repeatedly called for and sponsored when Democrats were in power — litigation would never have been necessary,” said Executive Director Bob Phillips. “Instead, they have blocked reform and engaged in blatant partisan gerrymandering of our state’s voting districts.”

The organization sent a news release to media Monday morning responding to Lewis’ formal call last week for them to drop the lawsuit in light of the U.S. Supreme Court’s decision to stay out of federal partisan gerrymandering claims.

Lewis incorrectly told reporters at a press conference that the high court’s opinion set a precedent that courts could not weigh in on partisan gerrymandering — it’s up to lawmakers to regulate redistricting. The opinion, however, acknowledges states’ efforts in the battle against partisan gerrymandering and specifically mentions a Florida state Supreme Court opinion.

He called on Common Cause and other plaintiffs in the state lawsuit to drop it and engage in conversation with legislators about reform.

Common Cause NC has been lobbying for redistricting reform for more than a decade — neither party has passed any measures to take on the issue of partisan gerrymandering. There are currently six redistricting reform bills pending at the legislature, none of which have been scheduled for even a hearing this session.

Phillips said in the Monday news release that if Lewis is sincere about pursuing redistricting reform, he can start with the 2009 ‘Horton Independent Redistricting Commission’ bill, which he, along with now House Speaker Tim Moore and Senate President Pro Tem Phil Berger, sponsored at the time. That bill called for adoption of a state constitutional amendment creating an independent citizens commission to draw North Carolina’s legislative and congressional districts free from partisan politics, with full transparency and robust public input.

“So, we call upon Rep. Lewis and his fellow Republican legislative leaders to enact a true citizens redistricting commission now, and only after passing into law a gold-standard model of reform would we consider his request,” Phillips said.

Lewis responded on Twitter that he had not received any communication or the press release from Common Cause.

“The only commission bill filed in the House would let Democrats pick roughly 2/3 of the commission,” he added. “Not a good basis for a conversation and far from a ‘gold-standard.'”

The Common Cause v. Lewis trial is set to start July 15. A pre-trial hearing is set for 10 a.m. Wednesday.