Courts & the Law, Defending Democracy, News

The State Board of Elections, Ethics has dissolved; there could be a temporary new one but discord continues

The nine-member State Board of Elections and Ethics Enforcement has officially dissolved on account of being unconstitutionally structured, and what happens next is as good a guess as any.

There is controversy about whether the State Board ceases to exist in absence of a current constitutional structure or if it reverts back to its prior five-member structure per the 2015 law. Rep. David Lewis (R-Harnett) and other Republicans maintain the earlier scenario and Gov. Roy Cooper has already started preparing for the latter.

“Governor Cooper this morning sent a letter to the two major party chairs requesting nominations for the State Board of Elections by close of business today,” said spokesman Ford Porter in an email. “These members will serve until a new board is convened on Jan. 31 per [House Bill] 1029.”

Lawmakers voted yesterday to override Cooper’s veto of HB 1029, which restructures the State Board, and it will take effect Jan. 31. In the meantime, Cooper and GOP legislative leaders asked the three-judge panel that ruled the current State Board structure unconstitutional to stay its decision for a fifth time until HB 1029 was in place.

The panel declined to do so and they took the parties to task for disregarding their order.

“The day after the final extension of the Stay was entered, the State Chairman of the Board of Elections and Ethics Enforcement published a discovery and hearing schedule which completely and totally disregarded the timetable established by the extension of the Stay, indicating a complete disregard for an Order of this Court,” states the denial issued Thursday. “The parties have not given even a cursory explanation as to why the hearing was continued from Dec. 28 until Jan. 11, let alone one demonstrating compelling reasons and substantial and reasonable justification, for not only the additional time needed, but the total disregard of the previous Order of the Court in extending the stay.”

The panel is referring to the now former State Board’s timetable for investigating alleged absentee ballot fraud in the 9th congressional district, because that has been the backdrop of all the extensions of time for the nine members to keep working.

State Board spokesman Pat Gannon said Friday that in the State Board’s absence after noon, all members of the agency would continue to work on the 9th congressional district investigation and perform other election administration functions as necessary. The Board is what dissolved, not the agency.

The current State Board before it dissolved was asked to consider an emergency petition by the Mark Harris for Congress Committee to certify his race, despite the ongoing investigation into absentee ballot fraud.

“The citizens of the 9th District have an expectation to be represented when Congress convenes on Jan. 3,” the petition states. “The State Board should not deprive the citizens of the 9th District of their right to representation.”

There would have had to have been five members of the State Board to call an emergency meeting to consider the petition, but only two did, according to a letter from former State Board Chairman Josh Malcolm to Harris’ attorney.

The letter indicates the investigation is ongoing but it also sheds some light on Harris’ lack of cooperation with the former State Board. It states that Harris has been under a subpoena since Dec. 1 but has only produced 398 pages of documents after indication that he possessed about 140,000 additional documents. The letter reinforces the request that Harris comply fully with the subpoena.

It also states that staff at the State Board agency made several attempts to schedule an interview with Harris that have been unsuccessful thus far.

“The main goal of the State Board staff has been and continues to be a thorough and transparent investigation into elections irregularities, so that State Board members have as much evidence as possible in front of them when they consider whether to certify the 9th congressional district contest or order a new election,” the letter states. “The faith of voters in our election system depends on that.”

Editor’s note: This is a breaking news story and will be updated throughout the day.

Courts & the Law, Defending Democracy, News

Lawmakers urged not to override veto of bill making political investigations secret

Lawmakers are expected to override a veto this afternoon that would make campaign finance investigations confidential to the public.

Gov. Roy Cooper vetoed House Bill 1029, which also restructures the State Board of Elections and Ethics Enforcement, because of its lack of transparency during a time when the voting system is being highly scrutinized. The State Board has been investigating alleged absentee ballot fraud for the past month in the 9th congressional district.

“Disturbing allegations of election fraud in the 9th congressional district race are mounting,” Cooper said in a statement yesterday. “Yet it’s astonishing that the legislature has passed a bill, HB 1029 (which I vetoed), that mandates secrecy for campaign finance investigations by the Elections Board.”

He encouraged North Carolinians to reach out to lawmakers to tell them they don’t want to protect politicians who commit fraud. The House and Senate return at 2 p.m. today to vote on the veto override.

Bob Hall, who used to work as the Executive Director of voting rights organization Democracy NC, also urged lawmakers not to override Cooper’s veto. Over the past 20+ years, he has filed numerous complaints with the State Board regarding possible campaign finance violations involving Democrats and Republicans.

Read his letter to the legislature below:

Dear Legislator,

I urge you to not override Gov. Roy Cooper’s veto of H-1029 and, instead, adopt a new bill that omits the parts of Section 4 which mandate: “All investigations shall be confidential” “with respect to alleged failures to file any statement required” by North Carolina’s campaign finance statutes or “with respect to alleged violations of any part of” the campaign finance statutes.

It is not in the best interest of legislators, candidates or the public to handcuff the State Board of Elections from revealing the status or the findings of its investigations about charges which may be entirely bogus. Under current law, the Board may close any investigation that involves possible criminal violations. It may then announce its findings, exonerate the target of a complaint, levy a fine, or refer the case to the appropriate prosecutor. Under H-1029, a registered voter such as myself could publicly release a complaint alleging serious violations but the State Board would be prohibited from revealing what its investigation determined. The public would be left to speculate about the alleged wrongdoing and the politician or party would remain under a cloud.

At this moment, I have multiple complaints pending at the State Board. For example, one alleges that Sen. Brent Jackson and his campaign “deceive the public” by purposely misidentifying dozens of campaign donors as “farmers.” More than $80,000 is thereby masked, with a substantial amount coming from business leaders across the state who benefitted from decisions of the Senate Appropriation Committee co-chaired by Sen. Jackson and legislation he helped pass. Another complaint I filed alleges that Judge Phil Berger Jr. (a) received campaign contributions from straw donors, i.e., the money came from somebody other than the person listed on Berger’s disclosure reports; (b) failed to report the expenses involved in fundraising events; and (c) received $10,000 from misidentified video poker sweepstakes owners who were, at the time of the donation, involved in a lawsuit in his home county and who were seeking its favorable resolution.

Eventually, the investigations of these complaints will end and the public will know what, if any, wrongdoing the State Board discovered. But no public release of the investigations’ findings would be permitted under H-1029.

Moreover, H-1029 will severely limit the capacity of the Board to uncover problems through an investigative public hearing, such as those held in the past regarding alleged campaign finance violations of House Speakers Jim Black and Harold Brubaker and legislators Thomas Wright and Fletcher Hartsell. These public hearings are vital (1) to determine the existence and scope of wrongdoing, if any, and (2) to bring enough public attention to apparent violations to cause prosecutors to pursue the cases referred to them.

The strict confidentiality mandated by H-1029 will cause innocent political figures to remain under a cloud of suspicion, and it will allow guilty political figures to escape punishment by having their cases secretly referred to local prosecutors who can simply ignore them. H-1029 should be changed.

Thank you,

Bob Hall

Commentary, Courts & the Law, News

This year in review: Lawmakers can do better for NC families, kids

Meléndez’ daughter Isabella Pabon (Provided by the Pabon family)

The end of the year is near, and as we reflect on the biggest news, it’s also important to highlight what stories were near and dear to our heart.

There were two meaningful stories that I covered this year — one about the struggles that people go through in North Carolina while trying to start a family, and the other about children caught up in a justice system that often doesn’t have their best interest in mind.

I started working on “Modern families unprotected by outdated NC laws” after receiving a tip about same sex couples who weren’t being treated the same as heterosexual couples when going through an adoption process at a local clerk’s office.
I was surprised at how quickly people opened up to me about their experiences starting a family, but I was even more astonished at just how archaic North Carolina’s parentage laws are.

“Who is defined as a parent has already changed,” said Jennifer Tharrington, a Raleigh attorney at the law firm Haas Tharrington. “The model of two married heterosexual parents living with their genetic offspring applies to less than half of the families living in the United States right now, yet all of our statutes were drafted to primarily accommodate that family model. We need to shift.”

There’s a certain privilege that comes with not only being in a heterosexual relationship and considering having kids, but with also being a person who doesn’t have fertility issues. We tend to not think about the things that don’t affect us until they do, but recognizing other individuals’ plights helps us in making this world a better place for everyone. It can also connect policy makers to a world that they may not be educated about to make the shift that needs to be made.

The bravery, vulnerability and honestly shared by those people who spoke to me about their experiences stuck with me, and hopefully with others.

For example, Giselle Meléndez shared with me that she had five miscarriages, went through three In Vitro Fertilization cycles and had to wait five years before finally becoming a mother. And that was only half of her battle — the legal struggles that came with using a surrogate were expensive and agonizing.

Meléndez said it was well worth the struggle for her family, but such legal issues are unnecessary in these modern times, and likely prevent a number of people from actualizing their dreams of becoming parents.

A step in the right direction in updating the laws would be for North Carolina lawmakers to adopt the Uniform Parentage Act (UPA), which was updated last summer and provides states with a uniform legal framework for establishing parent-child relationships.


The other story that really tugged at my heartstrings this year was one about how state law enforcement officials don’t have any idea about how many children are in adult jails.

I started looking into the issue after attending a gathering outside the Durham County Detention Facility in honor of Uniece “Niecey” Fennell, who hanged herself last year from her cell window. She was 17 years old and had been housed with adults for more than a year after being charged with murder.

Youth advocates and community members gathered last week outside the Durham County Detention Facility to remember the life of Uniece “Niecey” Fennell, a teen who committed suicide while housed there last year. They also called for policy changes to prevent such a situation. (Photo by Melissa Boughton)

“We are here today as a group, as a unit, to celebrate and remember the life of Niecey,” said Ethan Ashley, who is a board member for the National Juvenile Justice Network. “But the truth of the matter is that no young person – and the data is very clear, the research is very clear, the lived experiences of young people is very clear – should be in adult prisons.”

When I tried to find other kids like Niecey who were locked up in adult jails, I hit roadblock after roadblock. It turned out the last year that statewide information was made available about kids in adult jails was in 2013, when the N.C. Department of Public Safety (DPS) still kept track of county detention facility data.

The North Carolina Sheriffs’ Association is tasked now with keeping those statistics, including how many jails still house juveniles and adults together, where they are located and how many children are locked up every year with adults. Policy Watch requested the information from the Sheriffs’ Association, but Executive Vice President and General Counsel Eddie Caldwell said his group would not gather it because it is not staffed at a capacity to do so.

This came as a shock to me, but not those who worked in the juvenile justice world. Ultimately, it became an opportunity to educate the general public, and particularly lawmakers, because if we can’t do better by our kids, what are we doing?

Courts & the Law, Defending Democracy, News

Stein encourages Congress to support federal criminal justice reform

Attorney General Josh Stein signed on to a letter today urging U.S. House leadership to support the First Step Act, legislation to strengthen the criminal justice system through reforms to facilitate the reentry of people leaving incarceration and to empower prosecutors to seek appropriate sentences.

“This legislation will make our criminal justice system smarter and our communities safer,” said Stein in a news release. “In particular, I strongly support its provisions to support the reentry of the 95 percent of people who are currently in prison and will eventually get out. This year in North Carolina alone, 20,000 people will leave incarceration. Adequately preparing them to succeed upon release reduces repeat crime and reincarceration.”

On Tuesday, the U.S. Senate voted 87-12 in favor of the First Step Act, and today, the U.S. House of Representatives voted to approve it. It was sent to President Donald Trump for a signature.

He joined 36 other attorney generals who signed the letter, including those from the District of Columbia, Texas, California, Delaware, Indiana, Kentucky, New Jersey, Oregon and Virginia.

The First Step Act makes limited changes to the federal criminal justice system, including restricting the use of restraints on pregnant women, expanding compassionate release and relaxing a three strikes law.

“As our jurisdictions’ Attorneys General, public safety and the faithful execution of the law fall squarely on our shoulder,” states the letter Stein signed. “Constituents hold us uniquely accountable for ensuring our communities provide a safe place to work and raise a family. To that end, we have supported legislation that strongly punishes criminal conduct while making sure people exiting prison pose less of a threat than when they entered.”

Read the full letter sent to Congress here.

Courts & the Law, Defending Democracy, News

Lawsuit filed as soon as voter ID becomes law in NC

Within minutes of House lawmakers taking the final vote to implement photo voter ID in North Carolina, six voters filed a lawsuit challenging the measure.

Gov. Roy Cooper vetoed Senate Bill 824, the measure requiring voters to show a photo ID to cast a ballot, and the House and Senate voted Wednesday to override it. It’s expected a photo ID will be required to vote as early as next fall.

The lawsuit was filed in Wake County Superior Court as soon as the bill became law, as well as a motion requesting a preliminary injunction, which would temporarily stop the measure from taking effect while the case works its way through the courts.

“The North Carolina Constitution provides numerous and inviolable protections for the fundamental right to vote of all its citizens,” said Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice (SCSJ). “Just because the North Carolina Constitution now authorizes, with exceptions, the presentation of a picture ID when voting does not mean those other longstanding protections can be ignored or violated.”

SCSJ is representing plaintiffs in the case, along with pro-bono counsel from the New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison. The voting rights organization also represented plaintiffs who successfully challenged the state’s 2013 monster voter suppression law, which was ultimately struck down by the U.S Court of Appeals for the Fourth Circuit.

The lawsuit alleges the SB 824 violates multiple provisions of the state constitution by purposefully discriminating against and disproportionately impacting African-American and American-Indian qualified voters, unduly burdening the fundamental right to vote, creating separate classes of voters and imposing a cost on voting, among other things.

“It is the legislature’s duty to balance competing demands in the State Constitution,” Riggs said. “It has failed miserably in its exercise of balancing the new ID constitutional amendment, which explicitly allows for exceptions, with the numerous other state constitutional demands that have been interpreted to aggressively protect the right to vote. Any legislative scheme that requires voters to present ID when voting must have fail-safe measures to ensure that not one single eligible voter is disenfranchised. Our State Constitution demands it.”

Passing voter ID did not come without robust debate, particularly in the House on Wednesday. Republicans told their colleagues they felt North Carolina voters were scorned by Cooper’s veto, and that they worked diligently and in good faith to pass a reasonable bill. Democrats tried to explain how people would be disenfranchised by the bill and why they were voting against it.

Ultimately the House voted 72-40 to override the veto.

Another voting rights organization, Democracy NC, called SB 824 a poorly-funded measure with complicated requirements and hasty implementation deadlines that will impact real voters — especially communities of color and those most marginalized in politics.

“Lawmakers could have reasonably waited to act until their duly-elected successors were seated,” said Executive Director Tomas Lopez. “They did not: this is a last-ditch effort to shape our voting rules without hearing from those affected. Our collective work now turns to mitigating this law’s harms, especially in communities that have seen first-hand how voting restrictions discourage participation and damage the integrity of the voting process.”

Read the full pending lawsuit here.