As U.S. Senate Republicans again stall voting rights legislation, advocates call for stronger protection

Senate majority leader Chuck Schumer criticizes Senate Republicans after votes to debate the Freedom to Vote Act failed.

With opposition from U.S. Senate Republicans, Democrats again failed to meet the 60-votes threshold Wednesday needed to move the landmark “Freedom to Vote Act” along for debate.

The bill would expand voter registration, including automatic voter registration and same-day registration, end partisan congressional redistricting, enhance voting by mail, require at least 15 days of early voting for federal elections, and make Election Day a federal holiday.

Apart from voting rights protection, the legislation also aims to promote election integrity, including strengthening campaign finance rules related to Super PACs, cracking down on disinformation, and establishing duty to report foreign election interference.

Sponsored in September by Sen. Amy Klobuchar, D-MN, and led by Sen. Joe Manchin, D-WV, the measure is a compromise bill that scaled back from the For the People Act, which Manchin previously refused to back, citing a lack of bipartisan support.

Manchin has since tried to get Republicans on board with the Freedom to Vote Act. Senate rules allow delay and prolonged debate to prevent votes on a legislation — also known as a filibuster — until proponents of the bill succeed in mounting 60 votes to override the filibuster. With 50 votes in the Senate, Democrats would have needed to win the support of 10 Republicans, but none budged.

On the floor after the vote, Senate majority leader Chuck Schumer, D-NY, blamed Senate Republicans for perpetuating former President Donald Trump’s rhetoric of the “Big Lie” alleging fraud in the 2020 elections.“Capitalizing on this malicious lie, his accolades in conservative-controlled legislatures are now passing laws across the country, making it harder for younger, poorer, urban and nonwhite Americans to participate in elections,” he said.

“By preventing the Senate from functioning as it was intended, Republicans in this body are permitting states to criminalize giving food and water to voters at the polls, Republicans are saying it’s okay to limit polling places and voting hours, and shut the door to more expansive vote by mail,” Schumer added.

Experts at the Brennan Center for Justice called the legislation “the most consequential voting rights and anti-corruption bill passed in more than half a century.“

A press release from the Brennan Center noted that 2020 was a successful election year with a record-high voter participation since 1900. However, 71% of white voters cast ballots, as compared to 58% among other voters, according to the press release. “That gap will only get worse under new state-level voter suppression laws and discriminatory gerrymandering that undermines communities of color’s growing political power,” the press release stated.

“The same faction that is trying to pass laws to bolster the Big Lie are the same faction that is trying to block the Freedom to Vote Act,” said Melissa Price Kromm, director of North Carolina Voters for Clean Elections (pictured at left). “They are the same faction that blocked the Jan 6 investigation, using the same procedures.”

She said North Carolina, like some other states, has seen attacks on voting rights in this legislative session, ranging from proposals to criminalize election administrators for certifying elections “conducted contrary to statutory election law” or soliciting private donations, to a ban on the state Board of Elections and the Attorney General’s Office from settling lawsuits without the participation of legislative leadership. None of the bills has been enacted. These bills show an intent to shift control over election administration from neutral local officials to partisan state actors, she said.

Kromm said, as opposed to leaving the public “barraged by anti-voter bills,” it’s time for legislators to pass voting rights legislation proactively to “protect the guardrails of our democracy.”

Superior Court permanently enjoins 2018 NC voter ID law

A three-judge panel ruled 2-1 Friday that the state voter ID law enacted by the General Assembly in 2018 is unconstitutional. The law required voters to present a photo ID when casting their ballots, including provisional ones.

Lawmakers approved Senate Bill 824 by overriding Gov. Roy Cooper’s veto of the legislation during a lame duck session  in December 2018.

Represented by the Southern Coalition for Social Justice as well as pro bono counsel from the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, five North Carolina voters sued legislative defendants, including House Speaker Tim Moore in Wake County Superior Court.

Signed by Democratic Judges Michael O’Foghludha and Vince Rozier, Jr., the majority opinion held that the law was passed with discriminatory purpose or intent. Plaintiffs’ expert Kevin Quinn, a University of Michigan professor, performed an analysis in which he matched voter files to databases that track the rates at which various groups possess the required ID and unearthed disparities between voters of different races.

According to the ruling, “When restricting [Quinn’s] analysis to active voters—those who voted in the 2016 and 2018 elections—African American voters were over twice as likely to lack qualifying ID than white voters.”

Therefore, the majority opinion said, the burden of obtaining qualifying ID, including free ID, would fall more heavily on Black voters, who more often lack a form of qualifying ID required under SB 824 and encounter more barriers to obtaining such IDs compared to white voters.

In his dissenting opinion, Republican Judge Nathaniel Poovey wrote that plaintiffs failed to prove that legislative defendants acted with discriminatory intent.

“Senate Bill 824 was a bipartisan bill that was supported along the way by multiple African American legislators and enacted after the people of our State approved a constitutional amendment calling for voter-photo-ID requirements,” Poovey wrote. He said that SB 824 should not be declared unconstitutional.

Three-judge panels, composed of three superior court judges from different judicial districts, are a common form of arbitration for constitutional challenges to state laws. The Holmes v. Moore decision came after a three-week trial in April.

In 2019, the Wake County Superior Court denied plaintiffs’ request for a preliminary injunction, which was granted later by a Court of Appeals panel in 2020.

In response to today’s ruling, Southern Coalition for Social Justice co-executive director and chief counsel for voting rights Allison Riggs issued a statement lauding the judges’ action:

Southern Coalition for Social Justice co-executive director and chief counsel for voting rights Allison Riggs

“We applaud the three-judge panel’s decision and hope it sends a strong message that racial discrimination will not be tolerated. Should legislative defendants appeal today’s ruling, we’ll be prepared to remind them of what this court and the state’s constitution mandate: every vote matters.”

A separate federal lawsuit on the voter ID law is ongoing. As Policy Watch previously reported, Senate President Pro Tem Phil Berger and House Speaker Tim Moore sought to intervene in that suit, but were rebuffed in that effort by the Court of Appeals for the Fourth Circuit. Berger and Moore are seeking review of that issue by the U.S. Supreme Court. In response to today’s ruling, Moore’s attorney promised an appeal, saying in  a statement “We look forward to appealing this partisan ruling on behalf of the people of North Carolina.”

This is not the first time North Carolina pushed for a stricter photo ID requirement. After the U.S. Supreme Court’s landmark Shelby County v. Holder ruling, the Republican-controlled North Carolina General Assembly voted to pass HB 589, which only allowed one of eight forms of voter ID for in-person voters. That bill also included other restrictive measures such as ending pre-registration for 16- and 17-year-olds and forbidding voters from casting ballots outside of their precincts.

The Fourth Circuit of Appeals said in the decision striking down the law, that the General Assembly was “eager to rush through the legislative process the most restrictive voting law North Carolina has ever seen since the era of Jim Crow.”

Quinn’s analysis shows that though SB 324 added a few eligible IDs to the eight types of acceptable IDs under HB 589, it added only a “minuscule number” of voters.

Policy Watch will publish additional updates on this case as they become available.

Federal court strikes down NC law that barred farmworkers from seeking union representation via lawsuit settlements

A federal district court judge on Wednesday entered a permanent injunction against a provision from the North Carolina Farm Act of 2017 that invalidated lawsuit settlements in which parties agree to recognize union representation of farmworkers as part of the agreement. The challenged provision was passed by the General Assembly and signed into law by Gov. Roy Cooper in July of 2017 as part of an omnibus 24-page bill.

Farmworkers and civil rights groups announced a federal lawsuit outside the legislature in 2017. (Photo by Carol Brooke)

Advocacy groups filed suit challenging the anti-union provision in the U.S. District Court for the Middle District of North Carolina in November of 2017 on behalf of two farmworkers and the state’s only farmworker union, the Farm Labor Organizing Committee (FLOC).

[Note: NC Justice Center, the parent organization of Policy Watch, was among the organizations and law firms representing the plaintiffs in the suit.]

Plaintiffs claimed that FLOC had been deprived by the law of at least one opportunity to “assist members who have potential employment claims to negotiate with their employer for a prefiling settlement of such claims.”

In the complaint, counsel for the plaintiffs argued that the ban on making union representation a part of settlements strips farmworkers from securing settlement terms in their best interest, a right enjoyed by other private sector employees.

In reviewing and approving the decision of the Magistrate Judge to which the case was initially assigned, U.S. District Court Judge Loretta Biggs previously held that the challenged provision violates the First Amendment and first-amendment-related protections of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. On Wednesday, she permanently enjoined the state from seeking to enforce it.

The plaintiffs argued that the law not only infringed on workers’ First Amendment rights to form and participate in in unions, but it also violated the Equal Protection Clause of the Fourteenth Amendment, as most of the state’s farm workers are Latino.

“We continue to believe this law was crafted to block farmworkers from fighting for these rights with the help of the Farm Labor Organizing Committee negotiating on their behalf,” said Julia Solórzano, a staff attorney with the Southern Poverty Law Center’s Immigrant Justice Project representing the plaintiffs, in a press release. “These efforts to undermine the rights of these workers must not stand, and we will fight until they are defeated.”

The suit also challenged another portion of the law that prohibits agricultural producers from entering voluntary enforceable agreements to deduct union dues from farmworkers’ paychecks.

Despite striking down the settlement provision as unconstitutional, Judge Biggs, allowed the dues checkoff ban to remain in place.

As Policy Watch previously reported, many farmworkers in North Carolina are present in the state on a temporary visa for guest workers and don’t have credit cards or access to U.S. bank accounts, hence few other means to pay for union dues other than relying on dues transfer arrangements.

Plaintiffs are appealing the portion of the decision that upheld the dues checkoff provision to the Fourth Circuit Court of Appeals in Richmond, Va.

“We are confident that the Fourth Circuit will determine that farmworkers are entitled to the same rights as other North Carolina workers to freely choose for themselves whether to have union dues deducted from their paychecks,”  legal director for the ACLU of N.C. Kristi Graunke said in the press release.

NC House Democrats to file petitions to discuss gun control bills that stalled

At a press conference Thursday, four North Carolina House Democrats announced their plans to file petitions to discharge, or to directly bring two bills onto the House floor, for discussion next week.

The two bills would introduce a system to temporarily restrict access to firearms and to require a purchase permit for long guns. They were sent to the House rules committee but never heard in a judiciary committee.

Rep. Marcia Morey (D-Durham) described the discharge petition as “the only way that someone in the minority can try to get a bill out of committee, and put onto the floor and have a debate and a discussion.” No discharge petitions has been successful in the past few years, Rep. Julie von Haefen (D-Wake) said. But she maintained that legislators need to use the procedure now.

Morey and von Haefen said the measures are imperative given the rise in gun violent and recent school shootings, including one that resulted in the death of a student in Winston-Salem.

“In 2019, 511 people were killed by guns in our state,” said von Haefen.  “But that number increased significantly in 2020 when 670 people were killed by guns, a 31% increase in gun-related deaths in just one year.”

Rep. Marcia Morey, D-Durham speaks at a Sept. 9 press conference announcing her plan to discharge legislation that would promote gun control.

“There have been about 21 bills filed in the House in the Senate on gun laws, most of them to expand gun rights, to take away limitations to remove pistol permitting, that there are God-given gun rights,” Morey said. “But today we are demanding a response to the carnage, with two sensible gun safety pieces of legislation.”

Morey introduced House Bill 525, which would establish rules to temporarily restrict a person’s access to firearms through Extreme Risk Protection Orders. The bill would enable family members, a current or former spouse or partner, law enforcement officers and health care providers to file a petition to court to issue these orders, which would last for up to a year.

Morey recalled her meetings with with five families that lost their children to gun violence last week. She said, “And for the next years, not only will they grieve the loss of their children, or navigate funeral and medical bills, and they will wait and wait and wait for years for a court system to slowly grind to give them a day in court.”

Indeed, she said, it’s time for North Carolina to join more than 20 other states to enact such a “red flag law” that would help prevent harm and deaths caused by people who shouldn’t possess firearms.

Rep. von Haefen filed HB 623, which would require a permit to purchase long guns and rifles. Currently, federally

Rep. Julie von Haefen

licensed dealers are required to run background checks on potential buyers of long guns. But no state permit is required.

Becky Ceartas, executive director of North Carolinians Against Gun Violence, said at the press conference that the federal background checks have major loopholes.

“Our federal background check system, it only applies if you’re buying a gun from a federally licensed dealer,” Ceartas said. “That means if you’re a domestic violence abuser, a minor in my experience you experiencing a mental health crisis, you can go to a gun show or online and buy a gun, no questions asked.”

Von Haefen said she proposed a purchase permit because it helps protect lives. Ceartas said the state pistol permit closes the federal loophole for handguns; those wanting to purchase a handgun needs to obtain a pistol permit or concealed carry permit from the sheriffs’ offices, which perform their own background checks. A bill aimed at eliminating the state pistol purchase permit won approval at the Republican-controlled General Assembly, but was vetoed by Gov. Roy Cooper in August.

Rep. Evelyn Terry, D-Forsyth

Rep. Evelyn Terry, D-Forsyth, said the recent shooting at Mt. Tabor high school and discovery of a handgun at Parkland High School in her district sound an alarm for the threat of lax regulation on guns.

“The guns… are in the community…in the trunks of people’s cars… that are going into the hands of children who absolutely have no business getting them at all.”

Rep. Allison Dahle (D-Wake), called on her fellow gun owners to take responsibility that comes with possessing weapons. “There’s nothing wrong with asking a law abiding citizen to get a permit,“ Dahle said. ”It’s not a difficult process to go through.”

“We don’t want your gun; We’re not going to take your gun… We’re asking that you’d be responsible,” Dahle said.

Redistricting public hearings fall short in accommodating public input, advocates say

Starting this evening, lawmakers will travel to 13 locations throughout the state to host public hearings on redistricting, which will redefine the boundaries of congressional and legislative districts for up to a decade to come, including a new, 14th congressional district. However, it appears that members of the public will not be able to participate and provide comments online.

The 13 meetings will take place at these locations:

A press release from Common Cause NC protested the lack of live-streaming options.

“The public’s voice matters in how new legislative and congressional maps are drawn in North Carolina,“ Bob Phillips, executive director of Common Cause NC said in a press release. ”As the COVID-19 virus ravages our state once again, it is disappointing that lawmakers are holding a series of public hearings on redistricting without an opportunity for community members to take part virtually in these meetings from the safety of their homes.”

Common Cause NC executive director Bob Phillips

Phillips told Policy Watch that while the time and location of some of the hearings are already less than ideal, the recent spike of COVID-19 cases poses extra challenges that warrant better streaming and virtual participation options. He noted that the hearing in Mecklenburg County is scheduled at 3 pm. Raleigh and Greensboro, the second and third largest cities in the state will not have a pre-map hearing.

Phillips recalled that in 2011, legislators used satellite technologies to let participants at simultaneous hearings on different sites view the proceedings in other locations and interact with each other.

“I don’t think Zoom and live streams and things like that, really, truly existed a decade ago,” Phillips said. “But there seemed to be more hearings on both the front end and the back end and more use of the technology of the times to provide as much access and transparency as possible, in contrast to what we’re seeing today.”

The public meetings this year will likely be recorded and posted online later. Phillips said, however, “That is a poor substitute for providing real-time live stream meetings with real-time virtual participation.”

To adopt maps before the start of the December candidate filing period for the 2022 elections, lawmakers have pledged to finalize the maps in November. This gives them roughly three months since the process commenced in August. However, the first public hearing is only set to take place a month after the initial legislative meeting. Legislators are expected release draft maps around the time public hearings conclude at the end of September.

Redistricting in 2011

Jennifer Bremer, a Chapel Hill resident tallied the number of redistricting hearings in 2011. Without a delay like the one that was precipitated by the 2020 census holdup, the 2011 redistricting process took more than four months from the end of March through the end of July with more than 60 hearings. Some hearings were held at the same time as those in other locations.

2011 Redistricting timeline, courtesy of Jennifer Bremer.

According to Bremer, the state legislature held hearings in 36 counties after the release of the initial proposed state Senate and congressional plans in 2011. Then, after the state House map was released, legislators took public comments on proposed maps at three rounds of hearings, with map revisions in between.

This year, however, chairs of the redistricting committees have indicated that they will only allow public comment at a post-map hearing at the General Assembly in Raleigh, without promising additional hearings elsewhere. Phillips says it’s “completely unacceptable” to only have a hearing in Raleigh.

In 2011,  Bremer said the post-map hearings were held in counties  that were spread across the state, including Buncombe, Cumberland, Guilford, Hertford, Jackson, Mecklenburg, New Hanover, Nash, Pitt, Wake and Watauga.

Bremer said it’s imperative that legislators hold public meetings after the release of draft plans. Only then can residents reflect on the proposed maps and make concrete suggestions, she said.

How to make effective public comments

Throughout the redistricting process, members of the public can continue to submit comments to the legislative website through the public comment portal.

Bremer said it’s important to make specific comments. “In other words, like… don’t split Hickory, or we don’t like the fact that our county is divided this way versus that, as opposed to draw fair maps and don’t gerrymander… That just uses up time and accomplishes nothing,” she said.

Peter Miller, a researcher at the Brennan Center for Justice found in a study that public comments do win the attention of legislators and influence maps. This is especially true when multiple members of the public post similar comments that are specific. In a post that listed tips for submitting effective comments, he noted that “44 percent of public comments that expressed a view on how a specific location should be handled by map drawers were adopted in the final congressional maps.”

In addition, Miller also recommended: including giving executable instructions to map drawers, addressing small areas, defining communities and need for representation, using online mapping tools, summarizing main points and building neighborhood coalition.