Defending Democracy, News

Board of Elections meets today to decide on voter system certification

The North Carolina Board of Elections will meet later today to consider adding stricter requirements to the voter certification program before deciding which systems to certify.

Voting rights advocates and advocacy groups, along with hundreds of voters have spent weeks urging the State Board to adopt the stricter requirement: “An electronically assisted marking device or other ballot marking equipment shall produce human readable marks on a paper ballot. A voter must be able to identify his or her intent as evidence by the mark on the ballot.”

Only voting systems certified by the State Board may be used in North Carolina elections. The certification of new voting systems would empower the 100 county boards of elections to choose equipment that best serves their voters in 2020 and beyond.

Currently, Election Systems & Software (ES&S) is the only certified voting systems vendor in North Carolina. Its products have been used in all state elections in recent years. They include the DS200 and M100 precinct tabulators, which read and tabulate paper ballots, as well as the iVotronic, a touch-screen, direct-record-electronic (DRE) machine used on Election Day in about 20 counties.

The real-time DRE technology is what’s being phased out in favor of machines that result in paper ballots for everyone. DRE technology has been reported to be vulnerable to election hacking.

The State Board had already postponed the approval of new voting systems in mid-June and amended its certification program to require vendors seeking certification to disclose information about company ownership.

The vendors responded with their ownership information, and the U.S. Department of Homeland Security evaluated it for any potential national security concerns related to foreign ownership. It did not raise any red flags, according to the State Board.

The meeting will be at 1 p.m. today on the 3rd floor of the Dobbs Building, 430 N. Salisbury St., in Raleigh. Members of the public may attend in person or listen to proceedings by dialing 631-992-3221 (code 146-862-677).

The State Board will hear public comment from up to 20 members of the public, and they can speak for up to two minutes each. Those wishing to speak at the meeting may sign up there.

It will be the first meeting chaired by Damon Circosta, who was appointed to the helm by Gov. Roy Cooper after the previous Chairman Bob Cordle resigned over telling an inappropriate joke at an elections conference. Cordle had voted against adding the stricter requirement to the voter certification process.

Common Cause NC is one of the advocacy groups urging State Board members to adopt the new requirement, as well as Democracy NC.

“With the pivotal 2020 election approaching and North Carolina likely a battleground state, it’s crucial that the people of North Carolina have complete confidence in the transparency and security of our elections,” said Common Cause NC Executive Director Bob Phillips. “All voting machines used in our state should ensure that voters are able to clearly verify who they voted for and be fully assured that their ballot is accurately counted.

“We urge the State Board of Elections to put transparency, accessibility and voter confidence in the integrity of our elections at the forefront of deciding which voting machines to certify for 2020 and beyond. In our view, hand-marked paper ballots are best able to meet those goals.”

Courts & the Law, Defending Democracy, News

Democracy NC asks Board of Elections to find missing sheriffs’ campaign finance reports

Immigration policy was front and center in North Carolina sheriff’s elections this past year — and pointed to as the deciding factor in many — but races in general have become increasingly scrutinized as individuals gain a better understanding about the crucial role the law enforcement officials play in shaping county policies related to public safety and the criminal justice system.

Democracy NC has been examining campaign finance data for the 2018 sheriff candidates as part of its commitment to ensuring the democratic process is open and transparent and to help the public understand how and by whom their campaigns are funded. Researchers took a special interest in the contributions and expenditures of unopposed campaigns.

In a letter sent this week to North Carolina Board of Elections Director Karen Brinson Bell, senior researcher Sunny Frothingham identifies nine 2018 sheriffs’ races with missing campaign finance data — all of which cross a $10,000 electronic reporting threshold.

“It is our understanding, per the State Board’s Campaign Finance Manual, that candidates who ‘show a cumulative total of more than $10,000 in contributions, loans, or expenditures during an election cycle must file electronically,'” the letter states. “Further, once a committee crosses that $10,000 threshold to file electronically, ‘the reporting requirement continues until the committee certifies as inactive or closes … even if all funds have been disbursed and the campaign has ended.'”

Frothingham states in the letter that there are a range of potential explanations for why there is missing data in the nine races, but asks the State Board to promptly review its files for any missing reports and to contact the candidate committees as needed to access the data, make them available to the public and assign any penalties as appropriate.

“Whatever the cause, this information’s absence prevents the public from fully understanding who has funded key office-holders in several North Carolina counties,” the letter states.

The following candidates and campaigns are who Frothingham identified in the letter as having missing campaign finance reports: The Johnson for Sheriff Election Committee, for Sheriff Terry S. Johnson (R-Alamance County); the Committee to elect Steve Whisenant for Sheriff, for Sheriff Steve Whisenant (D-Burke County); the Committee to keep Tony Durden Sheriff, for Sheriff Tony Durden Jr. (D-Caswell County); the Committee to Elect Kent Winstead for Sheriff 2018, for Sheriff Kent Winstead (D-Franklin County); the Campaign Fund for Jerry W. Jones, for candidate Jerry W. Jones (R-Franklin County); the Committee to Elect Lowell Griffin, for Sheriff Lowell Stewart Griffin (R-Henderson County); the Bizzell for Sheriff Committee, for Sheriff Roger Steve Bizzell (R-Johnston County); the Tracy Carter for Sheriff Committee, for Sheriff Tracy Lynn Carter (R-Lee County); and the Committee to Re-elect Sheriff Hans Miller, for Sheriff Hans Miller (R-Onslow County).

Some of those races show contributions and expenditures that are way over $10,000 that are unaccounted for in the online reports. Examples include the Alamance County race, which reported $48,081 in contributions in the first quarter, the Henderson County race, which reported $41,888 in total contributions in the second quarter and the Johnston County race, which reported $50,463 in expenditures in the third quarter.

The most extreme example, though, is in Burke County, where $124,316 in total contributions was reported by the end of the third quarter — $94,200 of those contributions were made prior to the only report available through the State Board.

The races in Alamance and Burke counties were both unopposed in the primary and general elections in 2018. Frothingham said in a phone interview Thursday that Burke County especially raised a red flag with a “shocking” amount of money not accounted for in reports.

“That just raises a lot of questions for us on what’s going on there,” she said.

It also raises some questions about the State Board’s resources, she added. Democracy NC did not file a formal complaint regarding the missing data, but Frothingham said they are wondering why so many gaps still exist this far after the elections. She added that the organization is happy to serve in a watchdog role, pushing for more transparency, but the missing data also shows the need for the State Board to devote more resources to investigating campaign finance.

As of Thursday, afternoon, the State Board had not formally responded to the letter.

“The State Board has received the letter, and campaign finance staff are reviewing it and will respond to the organization as quickly as possible,” said spokesman Pat Gannon. “We will forward you the response as soon as it is sent to the organization.”

Frothingham said she hopes Democracy NC will eventually be able to review all the campaign finance data to get a better sense of funding for sheriffs’ races. Read the full letter below.

Democracy NC Letter to SBE 8 20 19 (Text)

Courts & the Law, Defending Democracy, News

Report: NC’s ‘modern poll tax’ disenfranchises residents with felony records

North Carolina still uses a modern-day poll tax when it comes to allowing residents with felony convictions to vote, according to a new report from the Civil Rights Clinic at Georgetown Law School and the Campaign Legal Center.

“Nearly six million individuals are denied the right to vote in the United States due to a past conviction, and, for many of those individuals, the ability to vote is contingent upon their ability to pay an increasing number of fines, fees, court costs, and restitution,” the report states.

Can’t Pay, Can’t Vote shows that all but two states have laws in place that disenfranchise residents who are convicted of certain crimes. The majority of states condition rights restoration, either explicitly or implicitly, on the payment of legal financial obligations, including in North Carolina.

The state requires payment of fines and fees as a prerequisite for voting rights restoration by requiring completion of parole and or probation — which also costs a separate fee. The Sentencing Project estimated in 2016 that 51,845 North Carolinians who were not incarcerated were disenfranchised because of their felony record.

Court fines and fees in North Carolina have skyrocketed over the past couple decades, and it can take individuals years to pay off their debt. It can also lead to an extension of probation and or parole and a delay in the restoration of their voting rights.

“These policies impose a modern day poll tax on individuals with past convictions: but for their inability to pay, otherwise eligible individuals
are denied the right to vote,” the report states.

To ensure legal debt does not disenfranchise American citizens, the report recommends states adopt policies that either eliminate felony disenfranchisement entirely or restore the right to vote upon release from incarceration. Read the full report below.

CLC CPCV Report Final 0 (Text)

Defending Democracy, News

Guilford County on the hook for legal fees in redistricting lawsuit

Redistricting and gerrymandering are getting plenty of attention these days at the state level — but a more minor partisan redistricting fight from 2015 could end up costing Guilford County $600,000.

As the News & Record in Greensboro reported this week:

The legal fees stem from a federal lawsuit the residents and city of Greensboro filed against the county that challenged the constitutionality of a 2015 state law championed by former Sen. Trudy Wade. Under that law, the council would have been reduced from nine to seven members and the mayor would have only been able to vote in the case of a tie, council member terms would have increased and voting districts would have been altered.

They sued the Guilford County Board of Elections under the belief that the state was protected from the lawsuit but that the county was acting as a branch of the state responsible for conducting municipal elections and enforcing the law.

That left the county as a silent defendant in a federal trial.

U.S. District Judge Catherine Eagles ruled in 2017 that the changes to Greensboro City Council were unconstitutional.

The eight residents filed a motion asking for the county to pay back their legal feels, but in January 2018, Eagles ruled against them.

She said the county board was an innocent and non-responsible party, that it would be unjust to make the county pay the fees and that the residents should have sued the state.

The residents who sued are Lewis A. Brandon III, Joyce Johnson, the Rev. Nelson Johnson, Richard Alan Koritz, Sandra Self Koritz, Charli Mae Sykes, Maurice Warren II and Georgeanna Butler Womack.

They took Eagles’ decision to the federal appeals court and argued that there was an established precedent that a party that enforces an unconstitutional law, even if it did not enact or define the law, is still legally responsible to pay the legal fees, court documents said.

The move by Wade to redistrict heavily Democratic Greensboro was unpopular in Guilford County and divisive even within the Republican party, with junior Rep. Jon Hardister (R-Guilford) initially opposing Wade’s move (but later supporting a revised redistricting plan under political pressure).

The episode was held up by political experts as one of a number instances of an over-reaching GOP legislature intervening in more progressive local government decisions.

For those keeping score on the major players in this strange case:

Melvin “Skip” Alston, a Democratic Guilford County Commissioner who was then supporting Republican Trudy Wade’s bid to redistrict the city from Raleigh, came into conflict with fellow Democrats and the NAACP over the plan. After a failed Democratic primary bid against N.C. Sen. Gladys Robinson, Alston is now back on the board of commissioners.

Jon Hardister, then a young Republican legislator in conflict with the more senior Wade, is now House Majority Whip.

Wade herself was narrowly defeated by  Sen. Michael Garrett (D-NC) in 2018. She’s now planning a comeback.

Anita Earls, then the lawyer from the Southern Coalition for Social Justice who represented citizens in the redistricting case, is now an Associate Justice of the Supreme Court of North Carolina.

Courts & the Law, Defending Democracy, News

Governor, Attorney General urge court to outlaw partisan gerrymandering

Gov. Roy Cooper and Attorney General Josh Stein believe GOP lawmakers have used their power over redistricting to insulate the legislature from the votes of many North Carolinians, according to a brief they filed jointly Wednesday with the Wake County Superior Court.

Cooper and Stein, both Democrats, wrote that partisan gerrymandering violates the constitution and the state courts are fully equipped to handle the problem. They filed their amicus brief in Common Cause v. Lewis not long after a bipartisan group of former governors filed theirs, also encouraging the court to throw out the unfair practice.

“From the Atlantic to the mountains, partisan mapmakers have drawn district lines block by block, precinct by precinct, with one goal in mind: stopping voters from voting one political party out of power,” states the brief from Cooper and Stein. “Instead of voters choosing their representatives, representatives are entrenching themselves in power by choosing their voters.”

Partisan gerrymandering, they said, clashes with the constitutional foundation of protecting the people’s right to govern themselves. It also denies voters their right to free elections, denies voters equal protection and punishes voters for their political speech and association, according to the brief.

Cooper and Stein also said in their brief that North Carolina case law yields a test to measure partisan gerrymandering — something no one else proposed during the trial, which led to criticism from Republicans.

“Under that test, a court can find an unconstitutional partisan gerrymander when a districting plan reflects a prohibited intent: an intent to influence the outcome of elections by discriminating against certain voters based on their party affiliation or voting history,” the document states. “This test for political gerrymandering corresponds with the practice’s key features: intentional manipulation of the electoral process and intentional discrimination against certain voters to thwart the people’s right to govern themselves.”

Post-trial briefs in Common Cause were due yesterday. It will likely be weeks or upward of a month before the court issues its decision on partisan gerrymandering.

Read the full amicus from Cooper and Stein below.

Governor AG Motion Notice and Brief 8 7 19 (002) (Text)