Courts & the Law, News

‘Campaign finance watchdog’ calling for investigation into Court of Appeals Judge Phil Berger Jr.’s past report

Judge Phil Berger, Jr.

A former executive director of Democracy North Carolina is calling on the State Board of Elections and Ethics Enforcement to investigate “apparent campaign finance violations” related to Phil Berger Jr., a current Court of Appeals judge and the son of Senate President Pro Tem Phil Berger.

Bob Hall, who is retired and describes himself as a “campaign finance watchdog,” wrote a letter Thursday to State Board Executive Director Kim Westbrook Strach outlining the alleged violations. In the letter, Hall references Berger’s second quarter campaign finance report from 2016.

Hall reiterated in an email that his call for an investigation was in no way related to voting rights organization Democracy NC.

Berger Jr., through staff at his Court of Appeals chamber, told NC Policy Watch on Thursday morning that he had no comment about the allegations.

Hall alleges that two donors listed on the Berger for Judge Committee’s 2016 campaign disclosure reports did not make the contributions attributed to them. He does not name the individuals to protect their privacy, but said he will provide that information to the State Board separately. He also states in the letter that he has recorded conversations with those individuals.

Other allegations by Hall include Berger not disclosing food and beverage expenses for a fundraising event in July 2016 at the home of Olivia Oxendine, a Robeson County educator who is an appointed member of the State Board of Education.

“Court of Appeals candidate Phil Berger Jr. and his father, Senate President Pro Tem Phil Berger Sr., attended the fundraising event,” the letter states. “In 2012, the state Senate led by Phil Berger Sr. refused to approve appointments to the State Board of Education made by then Gov. Beverly Perdue, a Democrat. As a result of this action, largely controlled by Senate leader Phil Berger, the Republican governor elected in 2012, Pat McCrory, had the opportunity to make four appointments to the Board of Education in his first year, rather than just two. Olivia Oxendine was one of those four appointments.”

Hall also accuses Berger of not disclosing expenditures or in-kind contributions for a separate fundraising event held at a Greensboro restaurant in April 2016.

“Importantly, Phil Berger Jr.’s campaign was not ignorant of the requirement to disclose expenditures related to fundraising events,” the letter states. “For example, the Berger for Judge Committee disclosure reports list two payments to Caffé Luna for ‘catering’ – one recorded on April 22, 2016 for $1,533, and one on December 16, 2016 for $894.25. Caffé Luna is a popular Raleigh venue for political fundraising events; in fact, Sen. Phil Berger was a featured speaker at one on April 13, and another state legislator held a fundraiser there on April 19. It’s not clear if Sen. Berger attended either of the Caffé Luna events in 2016 that benefited his son, but nearly all the Triangle donations recorded at the time of these two events came from lobbyists, political action committees or political appointees.”

Hall also draws some conclusions about large donors that he states in the letter call for further investigation — one  is Tom Fetzer of Wilmington, a registered lobbyist and former NC Republican Party chair, and the other is from Pittsboro couple Maurice and Mary Raynor.

Fetzer made his largest donation to any single candidate in 25 years to Berger Jr. and several months after that contribution, he was appointed to a seat on the UNC Board of Governors by the state Senate led by Berger Sr., the letter states.

The Raynors were reported on Berger Jr.’s campaign finance report as owners of M&M Alpaca Farm in Chatham County, according to the letter. But they have owned many video-poker sweepstakes “parlors” across the state for years, and at the time of their contributions, one of their stores in Rockingham County was allegedly under threat of being shut down by the Eden police department.

“The sweepstakes parlor, called Starlite Eden 1, had been allowed to operate while Phil Berger Jr. served as district attorney for Rockingham County,” the letter states. “Some district attorneys across the state supported efforts by law enforcement officials to investigate sweepstakes operations for illegal activity, but DA Berger told local police to ‘hold off’ going after the parlors, according to media reports and the police.”

The parlor was eventually shut down under Berger Jr.’s successor but the Raynors made their donation to him at the time they were exploring legal options, closed the shop for a few weeks and then reopened it, according to Hall. It’s the only contribution they’ve made to a campaign for a state candidate in 25 years, the letter states.

“Considering that the Raynors’ $10,000 contribution to Phil Berger Jr. was made in June 2016, it would be more accurate for Berger’s campaign disclosure report to identify Maurice and Mary Raynor as the president and vice president of Starlites Tech Corp. or owners of sweepstake parlors, rather than simply as owners of an alpaca farm,” Hall writes.

Hall ends the letter by saying he looks forward to an investigation by the State Board.

“Complete and timely disclosure of the money involved in the public elections process is vital to a free and fair democracy of, by, and for the people,” he wrote.

Read Hall’s letter below:

Complaint Berger Jr 2018 by NC Policy Watch on Scribd

Courts & the Law, Defending Democracy, News

Four-member county boards of elections change leadership today, but why?

Four-member county boards of elections are set to change party leadership today.

Lawmakers reorganized county boards of elections at the same time they restructured the State Board of Elections and Ethics Enforcement. At the time the county boards were created, the chairperson was written in the law to be a Democrat and the vice-chair a Republican but those roles flip-flop in July.

The State Board sent out guidance on the reorganization in March and an updated Frequently Asked Questions list this month.

“Q: What is the Board Reorganization date? Do we have to reorganize?,” the document states. “A: G.S. § 163A-767 establishes a fixed date for meeting and organization ‘in the year of…appointment.’ The boards need to meet at noon on July 17, 2018 to appoint a chair and co-chair of different political parties. At this reorganization, the new Chair should be a Republican and the new Vice-Chair a Democrat.”

The change comes as many counties are still considering their one-stop early voting plans — a key decision-making process the four-member boards participate in to determine where North Carolinians can vote in the fall.

The boards in general oversee county board of elections staff and make other decisions as required by law, according to State Board spokesman Pat Gannon.

In addition to deciding on early voting plans, the four-member boards:

  • hear election protests, candidate challenges and voter registration challenges
  • approve or disapprove absentee and provisional ballots
  • canvass elections
  • oversee county board staffs, including the director
  • appoint a chair, vice chair and secretary
  • issue certificates of nomination and election in contests under county board jurisdiction
  • recommend county elections directors
  • purchase and maintain voting equipment

As of Tuesday early afternoon, 36 already counties passed early voting plans (Alamance, Alleghany, Anson, Bertie, Bladen, Burke, Caldwell, Carteret, Catawba, Chatham, Chowan, Cleveland, Cumberland, Davie, Franklin, Greene, Guilford, Haywood, Hoke, Jones, Macon, Madison, McDowell, Moore, Pamlico, Person, Richmond, Stanly, Warren, Wayne and Yadkin) — five of those counties were not unanimous decisions (Orange, Northampton, Pender, Pitt and Wake), which means the State Board will weigh in. The deadline for all counties to submit their plans to the State Board is Friday.

Gannon said the four-member boards are different from the county election offices. The offices are responsible for the day-to-day activities involved in administering elections, including voter registration and list maintenance, appointing election judges and poll workers, conducting elections, hearing election protests and candidate challenges, maintaining elections equipment and approving one-stop plans.

For more information about elections in North Carolina, visit the State Board’s website.

Courts & the Law, News

State Board: Jen Mangrum can challenge Phil Berger in midterm elections

Senate candidate Jen Mangrum is seeking to unseat Senate President Pro Tem Phil Berger.

Senate President Pro Tem Phil Berger will have a challenger on the ballot this November.

The State Board of Elections and Ethics Enforcement voted along party lines Thursday to overturn a residency challenge removing Jen Mangrum from the race against one of the state’s most influential politicians, Berger.

The Greensboro News & Record reports that Board Chair Andy Penry, Vice-Chair Joshua Malcolm, and members Valerie Johnson , Sella Anderson and Damon Circosta all voted in favor of the motion to overturn the challenge. Circosta is the unaffiliated member of the Board and the others are registered Democrats.

Secretary Ken Raymond and members Stacey Eggers, John Lewis and Jay Hemphill voted against it, the newspaper reported. They are the Republican members of the Board.

You can read more about the original residency challenge here. The News & Record reported on the Thursday meeting of the full state Board.

Penry said that he held concern as to if multi-county board’s finding used substantial evidence in their findings of record filed after the May 24 hearing.

“The facts are not in dispute, we know the facts are not in dispute,” said Penry, just prior to the board vote on his motion. “And here they all are – they are laid out and my view is that what we have here is unsubstantial evidence to support the conclusion that they made.”

Read the full article here.

Courts & the Law, Defending Democracy, News

League of Women Voters asks federal court to reopen partisan gerrymandering case, make final judgement by September

The League of Women Voters of North Carolina (LWV) is urging a federal court to move swiftly in reopening the state’s partisan gerrymandering case so that a remedy can be implemented before redistricting in 2020. Legislative defendants disagree and think the case should be dismissed.

Today is the deadline for parties to the partisan gerrymandering cases — League of Women Voters v. Rucho and Common Cause v. Rucho — to weigh in about how the U.S. Supreme Court’s recent decision in a Wisconsin case affects the merits of theirs.

A three-judge panel for the U.S. District Court for the middle district of North Carolina had struck down the state’s 2016 congressional map as an unconstitutional partisan gerrymander. The Supreme Court recently vacated that decision and remanded it back to the panel for further consideration in light of the decision in Gill v. Whitford — the Wisconsin case.

The brief filed on behalf of LWC states that the Gill decision has no impact on the federal court’s holdings that invalidated the 2016 congressional map.

“Nor does it undermine the Court’s conclusion that the 2016 plan constitutes unlawful vote dilution under the Equal Protection Clause,” the document states.

The record in the case, though, is not adequate to establish standing to challenge the plan on vote dilution grounds because it does not show where packing and cracking in North Carolina could have been avoided.

That could change if the court allows LWV plaintiffs to admit into evidence additional information about the district maps that were previously generated by one of their experts. The information would offer no new analysis, but would identify individual plaintiffs and/or LWV members who were placed in cracked or packed districts by the 2016 plan but who could have been assigned to uncracked or unpacked districts by a fair map, according to the brief.

The brief asks the court to make a final judgement in the case by September.

Common Cause North Carolina, the plaintiffs in the second case (both cases were tried and decided together), also wrote in a brief that Gill had no impact on their case. They stated, however, that the established record was sufficient in their case to prove vote dilution.

“Our plaintiffs clearly have standing and have suffered real harm by the legislature’s extreme partisan gerrymandering, as the district court unanimously ruled in its landmark decision from January,” said Bob Phillips, executive director of the organization. “This case is key to protecting the constitutional right of citizens in North Carolina and across the nation to have a voice in choosing their representatives.”

Legislative defendants in the case wrote in a separate brief that they believe all the claims are nonjusticiable and that the Supreme Court’s lack of action in the case requires it to be dismissed.

“The decision in Gill clarifies beyond any doubt that plaintiffs cannot challenge the alleged statewide effect of a redistricting plan on the plaintiffs’ partisan preferences and that plaintiffs cannot establish standing through evidence of alleged statewide deficiencies.,” their brief states.

They state that most of the plaintiffs in both partisan gerrymandering cases live in districts that continue to elect their candidates of choice, so they have not established standing in the case.

If the court allows new evidence in the case, attorneys for the legislative defendants state they will need to depose plaintiffs and new experts about the information and then they will offer their own expert testimony.

“Among other evidence to be offered by the legislative defendants, the evidence will show that there is no precedent for either a packing or cracking theory where a district is based upon whole counties and whole voter tabulation districts, such as districts in the 2016 Plan,” the court document states.

The state defendants and the Board of Elections offered no position on how Gill affects the North Carolina cases.

Read the full court documents below.

LWV Partisan Gm Brief by NC Policy Watch on Scribd

Common Cause Partisan Gm Brief by NC Policy Watch on Scribd

NCGA Partisan Gm Brief by NC Policy Watch on Scribd

Courts & the Law, Defending Democracy, News

Thursday: Board of Elections to hear appeal from Berger challenger

The state Board of Elections and Ethics Enforcement could decide Thursday if Jen Mangrum was rightfully disqualified from her attempt to unseat Senate President Pro Tem Phil Berger (R-Rockingham).

As previously reported by NC Policy Watch’s Billy Ball, Mangrum’s residency in Berger’s district was challenged by Republicans and a panel of election officials from Berger’s Senate District 30 voted on party lines to oust her.

Mangrum, a UNC-Greensboro professor and former elementary school teacher, appealed the decision and now it’s scheduled for a hearing before the full State Board on Thursday.

The State Board will also take up vacancy appointments to the county boards of elections and the establishment of a special filing period for a Superior Court district 15A in Alamance County. The vacancy was created after Judge Jim Roberson announced he would retire June 30.

The meeting will be held at 10 a.m. Thursday in a board room at 430 N. Salisbury St. in Raleigh. It is open to the public or they can listen in to the proceedings by calling 914-614-3221 (code: 689-691-678).

See the full agenda below.

Meeting Notice 2018-07-12 Revised by NC Policy Watch on Scribd