GOP’s latest constitutional theory puts fair elections at risk

North Carolina House Speaker Tim Moore

Moore v. Harper case could upend decades of established constitutional law and endanger democracy

The U.S. Supreme Court, as if rushing to settle old grievances, in recent weeks has thrashed about in a virtual frenzy of “originalism” – never mind the consequences for America’s civic well-being.

Our federal Constitution neglects to confer a woman’s explicit right to have an abortion? Then states must be free to impose abortion bans going so far as to require victims of rape and incest to bear the children of their predators – unless they can afford to have the procedure done in jurisdictions where such women (or girls) aren’t doubly victimized.

The Second Amendment guarantees a right (arguably a qualified right) to bear firearms? Well, then, states cannot require gun owners to show why they have a particular need to carry their weapons in public. As if letting the number of firearms circulating on the nation’s streets and in its neighborhoods serves a public purpose in an era of sickening gun violence, the July 4 horror outside of Chicago being just the latest example.

The law intended to fight air pollution doesn’t specifically authorize the federal government to tell power companies to limit their use of greenhouse gas-producing fossil fuels? Sorry – those companies can continue to slow-walk the transition to renewable energy sources while temperature-driven climate change degrades the lives of millions.

And then there was this humdinger of a decision by the justices, or enough of them to potentially throw our nation’s democratic system of checks and balances badly out of whack. Wouldn’t you know it: The decision, announced June 30 with no explanation, sprang from strategies cooked up right here on Raleigh’s Jones Street by our Republican-controlled General Assembly.

If there’s any good news, it’s that the high court hasn’t rendered a final ruling. Instead, it has agreed to consider complaints by state House Speaker Tim Moore, state Senate President Pro Tem Phil Berger, and key colleagues that, in essence, they were cheated out of a chance to gerrymander the state’s congressional districts to give Republicans a lopsided advantage.

It takes a thumbs-up from at least four of the nine justices to accept a case for review. Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas already have indicated they’re itching to side with the Tar Heel legislators. Justice Brett Kavanaugh has come close, declaring that the issues involved warrant the Supreme Court’s attention.

Of the court’s other two Republican appointees, Chief Justice John Roberts Jr. might be the least inclined to join with the previous four, based on a pivotal opinion he wrote in 2019. That would leave Trump-sponsored Amy Coney Barrett in position to cast the swing vote. To which we simply have to say, uh-oh.

Shiny new theory

True to their hyper-literal reading of the Constitution, Alito and his cohorts apparently think the clause putting state legislatures in charge of setting the “times, places, and manner” by which members of Congress are elected forecloses any review by state courts. Legal pundits across the land in past weeks and months have alerted us to the rising appeal in Republican circles of this so-called independent state legislature theory.

If a Supreme Court majority takes the bait, the consequences in North Carolina could play out like this. First, the state Supreme Court’s decision earlier this year to reject the legislature’s district map for U.S. House seats, and to substitute one devised under the court’s auspices, would be overturned. Read more

Fundamental rights are on the line as GOP seeks U.S. Supreme Court intervention in state gerrymandering case

Four months after the N.C. General Assembly enacted a new alignment of the districts in which our state’s congressional representatives are chosen, the gavel has come down: That district map was so skewed to benefit the Republican Party that it violated voters’ rights under the state constitution.

So declared the state Supreme Court in its ruling of Feb. 14 that sent legislators back to their drawing board.

No, the ruling wasn’t unanimous. Three of the seven justices filed a strong dissent, arguing that partisan gerrymandering, whatever its practical effects on election outcomes, is not expressly barred under the constitution and thus is a political matter beyond the state courts’ proper reach.

Yet here’s the deal. Those three, led by Chief Justice Paul Newby, were outvoted. They lost. In fact they went 0 for 3, since the maps for state House and Senate districts that they had supported also were tossed.

What happened then? Working on a tight schedule laid down by the high court, legislators redrew the districts. The revisions were submitted to a panel of three trial judges for review.

The panel, upon the advice of specially appointed experts including two retired Supreme Court justices and a former president of the University of North Carolina system, gave thumbs up to the two new state legislative maps.

But the proposed congressional map didn’t make the grade. It was found still to be too sharply tilted in favor of Republican candidates – a tilt achieved by diluting the power of voters likely to back Democrats. So the trial judges substituted another version devised by the outside experts, as the Supreme Court had authorized them to do.

The final package of three new maps was submitted to the justices on Wednesday, Feb. 23. A request to block the congressional map pending appeal, filed by attorneys for the legislature’s redistricting chiefs, was denied. For Democrats looking to shave perhaps a couple of seats off the Republicans’ projected 10-4 edge in the state’s congressional delegation — as well as for advocates seeking to give all voters a fairer chance to elect their preferred candidates – it seemed like the clouds had parted and the sun was shining.

Perhaps they should have known better. The legislature’s Republican leaders figured they had an ace up their sleeve.

Their idea wasn’t to dispute the unfairness of maps that virtually guaranteed a lopsided advantage for one party even when the overall vote was split about evenly.

It wasn’t to continue disputing what the state constitution allowed or didn’t allow under its foundational Declaration of Rights.

It was to look instead to the U.S. Constitution and its assignment of responsibility for determining the “manner” of election for senators and representatives. That duty, according to Article I, Section IV, falls to each state’s legislature, subject to laws passed by Congress itself. The plain language says nothing about oversight by a state’s courts.

Among the thorns

So, here we go into a classic legal briar patch – a favorite hang-out of judicial conservatives such as our Chief Justice Newby and his soul mates among the U.S. Supreme Court’s Republican-appointed majority.

The Constitution must be read literally, they maintain. And if it says the manner of congressional elections are set by the various legislatures, with no spelled-out role for state judiciaries, then by golly it’s legislators themselves who get to draw district lines without second-guessing by “activist” liberal judges.

That’s the gist of the argument now being pressed by lawyers operating on behalf of House Speaker Tim Moore, Senate President Pro Tem Phil Berger and their respective redistricting leaders. They played their ace in the form of a Feb. 25 motion to the U.S. Supreme Court seeking to invalidate the congressional map approved by the state justices.

In line with Supreme Court procedure, the request for a stay went to Chief Justice John Roberts Jr., who handles such motions originating in our part of the country. It was Roberts who, in 2019 in another case from North Carolina, wrote a majority opinion saying that the federal courts had no constitutional grounds for regulating extreme partisan gerrymandering even though it “leads to results that reasonably seem unjust.”

Roberts said the remedy lay in state-by-state constitutional and statutory provisions to keep gerrymandering under control. Well, North Carolina’s Supreme Court now discerns rights embedded in our state constitution having that precise effect. But the argument that our court has overstepped its bounds is meant to kick that conclusion to the curb. Will the chief justice bite?

If he does, it would seem to undercut a pillar of our American system of checks and balances: the doctrine of judicial review, by which the courts determine what rights are embedded in constitutions and whether legislative acts do or don’t uphold those rights. North Carolina’s courts have operated under that principle since 1787, according to documents in the current case. Read more

Crunch time in Raleigh with money, schools, and power all on the table

Here in the last week of October, almost four months after a new state budget was supposed to have been in place and with multiple plot-lines coming to a head, North Carolina’s government is like a somewhat rickety aircraft stressed to the limits amid a thunderstorm.

Not only that, but there’s fighting in the cockpit!

  • Republican chiefs in the General Assembly and Democratic Gov. Roy Cooper seem to be in the final stages of negotiating a budget that Cooper – for a change – won’t feel obliged to veto.
  • Figuring in the talks has been a possible broadening of the state’s Medicaid program, as the governor to his credit long has sought and his legislative foes long have resisted. From Cooper’s standpoint, simply getting to the point of considering Medicaid expansion that would improve health care access for many thousands of low-income citizens has to represent progress, compared to legislators’ flat-out refusals in recent years.
  • In tandem with the budget dispute is the latest chapter in the state’s long struggle over funding for public schools – in particular, those schools serving high proportions of economically challenged families and communities.
  • A judge who oversees the state’s response to a court ruling that aimed to bolster    schools in high-poverty districts is threatening to force the legislature’s hand if it doesn’t include more public education funds in the pending budget deal.
  • Legislators already accuse Superior Court Judge David Lee of overstepping his authority, so we could be on the brink of a massive collision between branches of government. What’s at stake is nothing less than the ability of many thousands of students to get the “sound basic” education to which the state Supreme Court has said they’re constitutionally entitled.
  • As if the turbulence over the budget and its school finance provisions weren’t serious enough, the legislature is moving toward decisions that could profoundly affect the make-up of the state’s congressional delegation and the General Assembly itself for years to come. As required so that every vote carries more or less equal weight, new congressional and legislative voting districts are being drawn in accord with population growth and shifts revealed by the 2020 census.
  • Here’s the question: Will Republicans seeking to shape districts in their candidates’ favor resort to the kind of gerrymandering that courts repeatedly have found to be unconstitutional in discriminating against African-American voters and in some instances against voters who happen to be Democrats? Voting rights advocates, including groups such as the N.C. Council of Churches, hope to see the process end with all voters given a fair chance to influence the choice of their elected leaders and thus the policies that have an inside track toward adoption.

Budget conflicts

Gov. Cooper in 2019 vetoed the legislature’s last stab at passing a budget according to the usual two-year schedule, and his Democratic allies in the state House and Senate joined in sufficient numbers to block Republican attempts at a veto override.

The deal-breakers for the governor boiled down to low-ball expenditures for public schools, including teacher pay; tax cuts that continued to hamper the state’s ability to invest in a range of programs; and a refusal to expand Medicaid despite the anticipated health and economic benefits.

Since then, the pandemic has put North Carolina through a tragic stress test. Gaps between our affluent, metro-area counties and their rural, small-town counterparts – gaps in health care, job opportunities, school quality – have been magnified. A new openness to Medicaid expansion on the part of some Republican legislators – encouraged by GOP officials in several mountain counties hammered by the virus and loss of jobs – could be an understandable response.

But if expansion still doesn’t have enough support to be included in the budget that’s now in final talks, as it may well not, at least advocates could push for an agreement to have it fully considered as a stand-alone measure. There can be no credible objections to accepting a huge new infusion of federal Medicaid funds for which the state would qualify, or to improving health-care access for people who now typically can’t afford even the routine care that many among us take for granted.

Fairer for teachers? Read more

NC GOP lawmakers advance election laws changes premised on Trump’s delusions and lies

North Carolina legislators – offering what amounts to a snappy salute in the direction of Mar-a-Lago – are well on their way toward fixing an election law that’s anything but broken.

If they succeed, they will have managed to inject a dose of inconvenience and uncertainty into the state’s system of mail-in absentee voting, which proved so popular last fall as an alternative to in-person voting during the pandemic.

Mail-in voting, Tar Heel style, worked just fine despite a record turnout. But that hasn’t stopped our former president from complaining about any voting regime that allows ballots received after Election Day to be counted, even if they were provably mailed by an Election Day deadline.

It’s part of Donald Trump’s ongoing grand exercise in cynical disinformation intended to convince Americans that he defeated Joe Biden, facts to the contrary – an exercise that plainly spurred the violent Jan. 6 attack on the U.S. Capitol by a mob of Trump supporters.

For the past dozen years, an otherwise eligible North Carolinian who wanted to vote by mail has had until Election Day proper to send in his or her ballot. It has to be postmarked to show that it was cast no later than that day. To be counted, it must be received by the voter’s county elections board within three days afterward.

In essence, that has put absentee voters on the same footing as those who go to the polls in person. People in both categories could wait until Election Day to finalize their choices and fill out their ballots – a voter-friendly accommodation that in the aggregate helps boost the quality of those chosen.

There was one notable exception to that process. Last year, with absentee ballot volumes soaring off the charts at the same time mail deliveries were bogging down because of ill-conceived and ill-timed cost-cutting efforts by the Postal Service, the deadline for receipt was stretched to nine days after Election Day.

That drove Republican legislators up the wall. They claimed the State Board of Elections had usurped legislative prerogatives in making the change, even though a court challenge along those lines flopped. Three state senators – Ralph Hise of Spruce Pine, Paul Newton of Mount Pleasant and Warren Daniel of Morganton – began pushing to strip away the post-election grace period entirely.

False on fraud

Thus emerged Senate Bill 326, now dubbed the Election Day Integrity Act. The bill was approved by Senate elections and rules committees on June 9 and June 10, respectively. It has a clear path forward with support from the full chamber’s Republican majority. The larger picture: Donald Trump claims, with zero justification, that post-Election Day ballot counting is a recipe for fraud. His allies then jump to abolish a provision that helps all voters, of whichever party or none, and that has functioned apparently without a hitch.

Democratic Sen. Natasha Marcus of Charlotte unloosed one of several volleys of criticism directed at the bill during committee proceedings. She told the elections panel it would force absentee voters to guess when their ballots would have to be mailed so they would be counted, leaving them “at the mercy of the U.S. Postal Service.” Which, of course, has been dogged by suspicion that delivery slowdowns were engineered by Postmaster General Louis DeJoy, the big-time Trump campaign donor from Greensboro.

Although bill sponsors maintained that voters would adjust to the new requirement, they failed to acknowledge that in 2020, plenty of valid ballots came in after Election Day. That suggests many voters took advantage of all the available time, perhaps to decide on their preferred candidates (Trump and Biden were at the top of a very long ballot). The upshot of making the mailed-ballot option clunkier and less reliable: as Marcus put it, “Bipartisan disenfranchisement.”

Sen. Daniel framed the bill as an effort to boost voters’ confidence that election results are fairly and honestly recorded. “Dragging out the process breeds distrust,” he said, asserting that 28 states already require mailed absentee ballots to be received no later than Election Day.

Of course that means North Carolina, with its grace period, already has plenty of company – and far better for our state to encourage more voting rather than less, even if that runs afoul of Trump’s bogus “stolen election” theory.  Read more

NC Democrats push for common sense voting reforms

Say this much, at least, for those legislators who favor making it easier, not harder, for North Carolinians to vote: They’re not ready to surrender to their vote-suppressing foes.

Even as key Republicans in the state Senate push changes to absentee voting rules whose main purpose would be to gum up the works, a group of House Democrats is pushing the other way.

Their bill entitled “Safeguarding Voting Rights,” introduced March 31 as House Bill 446, would protect popular voting options and in general encourage citizens to have their say at the polls.

It likely has zero chance of passage in a General Assembly controlled by Republicans in sync with the party’s national effort to downsize the electorate in its favor. But it shows the kind of steps that could be taken to strengthen our state’s voting procedures if maximum participation is the goal – while highlighting the divide between those who think maximum participation works in the public interest and those who don’t.

Here’s another point that needs to be made as Republicans from the former president on down continue to raise unfounded concerns about voter fraud. Of course the provisions of HB 446 would have to be carefully vetted to avoid any compromise of election security. But there’s no reason to think that shoring up access to the polls has to pave the way for cheating, or worse, that it’s meant to do so.

We should instead recall the high standard of efficiency and honesty that the state’s elections officials managed to meet even as turnout surged during the presidential election conducted last fall amid a deadly pandemic. For those worried about “election integrity,” now a favorite Republican cause, virus-era adjustments that helped people vote safely and securely should have drawn cheers, not jeers.

HB 446 so far has 32 sponsors, all Democrats – amounting to a majority of the party’s 51 House members (vs. 69 Republicans). Its primary sponsors are Reps. Marcia Morey of Durham, Allison Dahle of Raleigh, Kandie Smith of Greenville and Amos Quick III of Greensboro. Among the bill’s notable features, it would let absentee voters submit their ballots with the signature of only one witness rather than two.

The one-witness rule was approved by the legislature as a stop-gap response to the risks posed by in-person contact during the pandemic, but it now has lapsed. There’s ample reason to extend it, even if the COVID-19 threat continues to fade. It makes absentee voting more convenient with no evidence that it facilitates fraud. A huge increase in the number of absentee voters was a significant driver of 2020’s high turnout, and no doubt many of those voters would choose that method again if didn’t pose undue hassles.

Ballot ballet

The bill would affirm that as provided under current law, voters could apply for absentee ballots as late as the Tuesday before an election, and if a ballot was submitted by mail, it would count so long as it was received by the third day after Election Day.

However, it appears to drop the requirement that ballots also must be postmarked by Election Day. That presumably is in recognition that some mail these days isn’t postmarked at all. Yet the notion that ballots might be counted even if they were mailed after voting was supposed to have ended shapes up as a red flag.

Republican-sponsored Senate Bill 326, now pending, would advance the application deadline by a week and make Election Day the cutoff for receipt – essentially giving absentee voters the bum’s rush. Read more