Courts & the Law, Defending Democracy, News

Hofeller files: Lawmakers deny mapmaking misconduct in latest court filing

GOP legislative leaders are denying “inflammatory allegations” in their latest court filing in a state partisan gerrymandering case that they had a voting map mostly completed before beginning a public redistricting process to remedy racial gerrymandering.

The motion was filed Monday to ask a three-judge panel for direction after the plaintiffs in Common Cause v. Lewis filed a motion alleging that lawmakers lied to a federal court to ask for more time to draw the 2011 North Carolina legislative maps.

“One might expect that, with such a bald allegation of misconduct by elected leaders, plaintiffs would have some strong support for it, some smoking gun, or admission,” states the motion filed by the legislative defendants. “But, in fact, they have nothing of the sort. They present no email or other correspondence between Dr. Thomas Hofeller, the legislature’s map-drawing consultant, and any legislator indicating that any legislator knew of Dr. Hofeller’s map-drawing activities as of June 2017.”

The plaintiff’s cite Hofeller’s files — which were turned over to them after his death by his daughter — but they do not include the specific evidence to which they referred.

The legislative defendants state that they believe the plaintiffs in the state case put their false allegations into a court filing to score political points. They ask the court to order the plaintiffs to be divested of the Hofeller files, assess the degree of harm present in the case and possibly disqualify their attorneys.

“It is the Court’s role to take charge of this proceeding and the lawyers practicing before it,” the document states. “The Legislative Defendants therefore agree that direction is appropriate. Plaintiffs are using this proceeding as a platform for baseless political invective. And they are in possession of documents belonging to others and containing express privilege designations through apparently unethical means.”

There has not yet been a hearing scheduled in the case, but the three-judge panel has been asked for guidance from both sides. Read the full motion from the legislative defendants below.



Response to Motion for Direction Common Cause v Lewis June 6 2019 (Text)

Courts & the Law, Defending Democracy, News

Brennan Center gives glimpse of possible SCOTUS partisan gerrymandering outcomes

As court watchers and voting rights organizations alike eagerly await a partisan gerrymandering decision from the U.S. Supreme Court, the Brennan Center for Justice is offering a preview of what could happen.

Justices heard arguments in March addressing three challenges to congressional maps — two to the 2016 GOP-drawn map in North Carolina and one to a Democratic-drawn map in Maryland. It’s expected the high court will release an opinion in the next two weeks. A decision could have far-reaching impacts for map-making processes across the nation.

The Brennan Center has advocated in its court filings regarding the cases for justices to rule that extreme partisan gerrymandering is unconstitutional, set out a clear legal standard for determining when a map is unconstitutional, and strike down North Carolina and Maryland’s redistricting plans.

Tom Wolf, counsel with the Brennan Center’s Democracy Program, said though that’s not the only way the cases could turn out — there are many potential outcomes.

But that is not the only way these cases could turn out. In fact, there are many potential outcomes. Here are five of the more likely ones and what they could mean for the future of fair maps, per Wolf:

Scenario 1: A majority of the court endorses one of the legal standards that plaintiffs have offered and strikes down at least one map.

In this scenario, the court would rule, first, that one of the legal standards that the plaintiffs, on behalf of voters, used to challenge their state’s map is the right one and, second, that at least one of the maps at issue is unconstitutional. This would be the fastest route to relief for voters: any map that the court strikes down will be sent off to the legislature to be redrawn, with the resulting map potentially in place well ahead of the next election — the 2020 primaries. Any map the court doesn’t strike could be sent back down to the trial court for more work. That case would still have a chance for more Supreme Court review before 2020. But the time window would be narrow, requiring the case to move significantly faster than is normal.

Scenario 2: A majority of the court endorses a legal standard closely tied to the facts of one of the two cases and strikes down that state’s map.

In this scenario, the court would announce a new legal standard that is closely tied to the egregious facts of one of the cases. For instance, the justices could rule in the North Carolina case that a constitutional violation occurs when (a) the mapmakers expressly intended to create and entrench a seat advantage that was statistically highly unlikely to achieve accidentally, and (b) succeeded in doing so. Under this scenario, the case that matches these facts would end with a win for voters and a new map drawn in time for 2020. The court could send the other case back down for more fact-development work in the trial court, again with a narrow window for Supreme Court review in the fall.

Scenario 3: A majority of the court announces a legal standard that we haven’t yet seen and sends both cases back down for more work in the trial courts.

In this scenario, the court would announce a legal standard that departs drastically from the standards that are already in play, perhaps making relevant certain legal issues and facts that the courts and the challengers hadn’t previously considered. Both cases would go back down to the trial courts for more fact development and legal briefing in light of this new standard, with a narrow opportunity for the justices to weigh in again next term.

Scenario 4: A majority of the court neither agrees on a legal standard, nor decides to foreclose federal courts’ consideration of future partisan gerrymandering claims.

In this scenario, the court would essentially maintain the position it has held since it issued its 2004 opinion Vieth v. Jubelirer. There would be neither enough votes to set a legal standard, nor enough to end federal partisan gerrymandering litigation altogether. The court would dismiss both the North Carolina and Maryland cases. This ruling would represent another punt on the major constitutional issue and potentially delay any further litigation until after the next round of mapping is completed in 2021.

Scenario 5: A majority of the court declares partisan gerrymandering claims can’t be heard in federal courts.

In this scenario, the court would rule that federal courts are not capable of deciding partisan gerrymandering claims and thus should not hear them — in legal parlance, declaring these claims “non-justiciable.” The court would undo the North Carolina and Maryland voters’ victories in the trial courts and terminate their cases. This ruling would result in the federal courts being shut completely to these kinds of claims. The court came close to a ruling of this kind in Vieth, with four justices, led by Justice [Antonin] Scalia, contending that partisan gerrymandering claims were non-justiciable.

Bonus: Michigan, Ohio, and Wisconsin

North Carolina and Maryland aren’t the only partisan gerrymandering cases in the federal courts right now. There are also challenges in Michigan and Ohio — which both resulted in wins for voters after trials — as well as Wisconsin — which is set for trial in July. The Supreme Court’s opinions in North Carolina and Maryland will be the new law of the land and will govern all three of the remaining cases.

What happens to those cases will depend on the court’s ruling. If the court sets a legal standard for partisan gerrymandering cases, the Justices could well send Michigan and Ohio back to the trial courts for more proceedings under that standard. And the standard would shape the Wisconsin case by determining what the plaintiffs would have to show at trial to win. If the court closes its doors to gerrymandering claims, all three of these cases would be dismissed and the voters’ recent victories in Michigan and Ohio undone.

Courts & the Law, Defending Democracy, News

NC Sheriffs’ Association changes stance on anti-immigration bill to support harsher version

The North Carolina Sheriffs’ Association has backed down from its opposition of House Bill 370, an anti-immigration measure drummed up by Republican legislators who are using the Trump administration’s rhetoric to try and force law enforcement into working with U.S. Immigration and Customs Enforcement (ICE).

A Senate Rules committee heard an updated version of HB 370 yesterday but did not vote on the measure. It was referred to the Senate Judiciary committee, and if it gets through there, it will be re-referred to Senate Rules.

Changes to the bill were made after some lawmakers agreed to work with the Sheriffs’ Association and they crafted an alternative to the initial proposal, which would have punished law enforcement that didn’t honor ICE detainer requests with a hefty fine.

An ICE detainer is a request for local law enforcement to hold individuals they believe are not lawful citizens in jail or prison for up to 48 hours until the federal agency can take custody and begin deportation proceedings. The individuals targeted by detainer requests are typically otherwise eligible for release from jail or prison.

The detainer requests are not judicial orders signed by any court official, and they are not arrest warrants that require any kind of finding of probable cause. Because they are requests, local law enforcement can choose whether to enforce them or not, and most urban areas across the state have chosen to only work with ICE as much as the law requires (which means not volunteering to honor those requests or any others from the federal agency).

The Sheriffs’ Association initially opposed HB 370, in part, because it infringed on the constitutional right of sheriffs to make law enforcement decisions for the communities who elected them.

A memo about the new version of the measure states that it “is designed to protect the 4th Amendment due process rights of the person in custody while providing maximum public safety for the community.”

The new version of HB 370 extends the time a person can be held when an ICE detainer is in place from 48 hours to 96. It also removes some liability from sheriffs and law enforcement officials across the state who honor ICE detainers and instead makes judicial officials in charge of whether a person will be ordered to be held in custody. Though the way the law is written, there is no room for discretion — those officials have to order someone to be held in custody if their identity matches the ICE detainer request.

Instead of facing a fine, the new version of the measure would allow for law enforcement officials to be removed from office by a superior court judge if they fail to comply with HB 370.

The Sheriffs’ Association memo doesn’t address that portion of the bill. It does state though that the 96-hour time period in the bill reflects the realities of law enforcement operations. It also states that its formal position on the new version of the bill is that it “provides an appropriate and careful balance under the Constitution for the rights of the accused and for the public safety of our communities.”

Not all sheriffs agree with that position. Several remain opposed to the bill and remain concerned about the public safety implications of forcing law enforcement to work with ICE, and in some cases, do their jobs for them.

A couple sheriffs who oppose the bill spoke out at yesterday’s Senate hearing. Others have shown their disapproval through other avenues.

This week Guilford County Sheriff Danny Rogers withdrew his support for the Association’s proposal. He said a legal review of the policy left his department with constitutional concerns.

The move won Rogers praise from immigrant groups and advocates. It also got him plaudits from an unexpected source: BJ Barnes, the long-time Guilford sheriff he defeated in November.

The two men have had few kind words for each other since election day, sparring in the media and making cross-accusations on social media.

But in a Wednesday Facebook post, Barnes, once one of the most popular Republican sheriffs in the state, explained why he too opposes both the proposed bills and the Sheriffs’ Association’s alternative proposal.

“Before anyone starts thinking I’ve gone soft on illegal immigrants who have entered this country illegally and stayed, that IS NOT the case,” he wrote. “What I am and what the attorneys are is VERY STRONG on the Constitution, specifically the Fourth Amendment. A few of you in prior post have said the Constitution does not apply to those here illegally, that is not the case. It is applicable to everyone on American soil, no matter how they got here.

“Now the legislation proposed is the same as the rulings put out by ICE that says the Sheriffs office who holds prisoners longer than law allows without proper judicial paperwork, ie warrant will be immune from civil liability meaning you the taxpayer gets sued. It has already happened across the country and others have lost millions. They, being legislators or ICE, cannot protect a county from a lawsuit if they break the law.”

Barnes went on to disparage congressional Democrats for not helping resolve immigration issues on a federal level. He also — in his signature sly, combative style — congratulated Rogers on taking his advice.

But the olive branch was the first since Rogers was one of a wave of black, Democratic sheriffs to sweep seven of the state’s largest counties in the last election, displacing some of the state’s most prominent white Republican sheriffs. Rogers was one of five sheriffs in that sweep to become his county’s first ever black sheriff.

It was that sweep — and those sheriffs subsequent unwillingness to voluntarily work with ICE — that precipitated the initial HB 370 proposal.

The ACLU of North Carolina remains opposed to the new version of the bill. It pointed out in a recent news release that it is stripped of limited protections for witnesses and crime victims.

“This is still an extreme anti-immigrant bill that will tear apart families, spread fear across communities, and harm public safety,” said Stefania Arteaga, ACLU of NC Statewide Immigrants’ Rights Organizer. “North Carolina’s towns and counties shouldn’t be forced to spend their limited resources on helping the Trump administration’s deportation force carry out its anti-immigrant agenda. Legislators should reject this bill, and if it reaches his desk, Governor [Roy] Cooper should stand up for local law enforcement and all community members by issuing a swift veto.”

In addition to the ACLU, numerous other immigrant, faith and civil rights groups urged lawmakers to reject HB 370.

In a letter, they wrote that North Carolina has become an epicenter for immigration raids and enforcement. Since the Trump Administration took office, it has experienced a 460 percent surge in ICE arrests, leading to thousands of detentions and deportations, according to information from the Migration Policy Institute.

“Our local officials should not be collaborating with such a morally wrong and rogue agency,” the letter states. “This is why HB 370 would be so devastating if it became law. The bill would enlist the sheriffs of every county into Trump’s deportation force. It turns any police interaction into an immigration status check and cause of deportation.”

And the new version of the bill, the letter adds, is only more harsh.

“With sheriff deputies forced to work for ICE, HB 370 would dramatically increase detentions and deportations, causing long-term damage to North Carolina families and communities,” the letter states.

Joe Killian of NC Policy Watch contributed to this report.

Commentary, Defending Democracy, News

The week’s Top Stories on Policy Watch

1. Hofeller files: Lawmakers lied to federal court in 2017, preventing NC from getting special election

The 2011 North Carolina legislative maps are among the largest racial gerrymanders ever encountered by a federal court, and the state could have held a special election under new voting districts, but GOP lawmakers lied about needing more time to draw them, according to documents from deceased mapmaker Tom Hofeller.

It turns out the maps had been drawn all along and the “public” process the legislature put on at the time was a sham.

“In July 2017, legislative defendants convinced the federal district court in [North Carolina v.] Covington not to order special elections under new remedial maps in 2017, based on legislative defendants’ repeated statements that they had not yet started drawing new districts at all and needed sufficient time to develop criteria, draft the plans, and receive public input,” states a court motion filed Thursday in Wake County Superior Court. “The Hofeller files reveal that Dr. Hofeller had in fact already substantially completed drawing the 2017 plans in June 2017 before legislative defendants stated the process had even begun and a month and a half before the adopted criteria were even introduced and adopted.” [Read more…]

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2. “Gerrymander” is much too polite a word for what Trump and the GOP are trying to do

For some time now, it has seemed that the widespread and growing use of the words “gerrymander” and “gerrymandering” was a good thing for our state and nation. A decade ago, these words were insider terms used only by campaign consultants and politics wonks. In recent years, however, as the public has finally started to grasp the reality of how electoral districts have come to be drawn and manipulated, “gerrymander” and “gerrymandering” have, increasingly, entered the general lexicon.

Unfortunately, while it’s certainly positive that lots of Americans now understand what gerrymandering is and that it’s to be combated, there’s a downside to the current widespread use of the term: it’s much too polite a word to describe what the Trump administration and its Republican Party allies are trying to do to our democracy.

Think about it for a moment. The word “gerrymander” – which traces back to the machinations of a 19th Century Massachusetts politician named Elbridge Gerry who concocted a Boston-area district that supposedly resembled a salamander – is a quaint, whimsical and almost comical term. It conjures up images of gamesmanship and “good ol’ boy” politicians nudging and winking at each other as they maneuver for incremental and temporary advantages over their rivals – rivals who would no doubt employ similar tactics if and when they got the opportunity. [Read more…]

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3. NC officials dismiss hundreds of thousands of old court cases as part of massive data ‘clean-up’


Many cases have been on the books without resolution for decades

The North Carolina Administrative Office of the Courts (AOC) has been quietly facilitating the dismissals of hundreds of thousands of criminal charges and infractions across the state for the past two years as part of a data clean-up effort.

Each of the cases dismissed had been pending for years – some for decades – without prosecution, preventing thousands of people from getting a driver’s license and sometimes resulting in orders of arrests, often of individuals already living in poverty.

The end result of the mass dismissals is judicial efficiency, increased public safety and a human impact that can’t be measured. There have been more than 700,000 total cases dismissed thus far by 50 counties as part of the effort, called the Data Integrity Initiative. The AOC has not released information on how many charges in each of the jurisdictions was dismissed.[Read more…]

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4. Advocates hope changes in Durham are a bellwether for bail reform in NC

Serena Sebring and Kayla Hartsfield were arrested last month after chaining themselves to the gates outside the Durham County Detention Center.

The two women, activists with Southerners On New Ground (SONG), were trying to bring attention to a cash bail system they say has utterly failed. Studies show the current system disproportionately jails minorities, the poor and those accused of non-violent crimes while failing to effectively assure that defendants make their court dates in higher numbers than those who are offered alternatives to cash bail.

“We have a lot to learn from other cities and states that have just decided, ‘We’re not going to do this system of ransom that money bail has become’,” Sebring said. “They’ve replaced it with a wide variety of things like ‘cite and release’ programs and other ways of supporting people in making that first court appearance that are more effective.” [Read more…]

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5. Ten new charter schools win approval, two on hold as WCPSS raises concerns

Concerns raised by Wake County Public School System (WCPSS) has led the State Board of Education to table two of 12 charter schools that sought state approval Thursday.

The board’s approval of the other 10 applications paved the way for them to open in 2020.

But applications submitted for Wake Preparatory Academy and North Raleigh Charter Academy were referred back to the state Charter School Advisory Board (CSAB), which had recommended approval of all 12 applications.

CSAB is expected to review the WCPSS concerns when it meets Monday. [Read more...]

Bonus read: State Rep. Craig Horn vows to fight for online preschool during budget negotiations

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6. Governor’s veto of “born-alive” bill is sustained despite passionate pleas to mix religion and policy

On Wednesday, the state House of Representatives voted to sustain Governor Roy Cooper’s veto of Senate Bill 359, the so-called “Born-Alive Abortion Survivors Protection Act.”

Senator Joyce Krawiec (R-Davie), the primary sponsor of the bill, as well as House Speaker Tim Moore (R-Cleveland), repeatedly stated that the bill was “not about abortion.”

“Today’s bill we are discussing is when a child is born alive,” said Speaker Moore at a press conference he held before the vote, “and what the standard of care is for that child at that time.” [Read more…] ===

7. A eulogy: For the abortion bill whose supporters dared not speak its name

Sometime in the latter hours of debate over an abortion bill that North Carolina Republicans insisted was not about abortion – even as the words “abortion” and “abortion victims” were uttered some fourteen-thousand times Wednesday – Speaker Tim Moore descended from his perch at the forefront of the state House chamber to debate.

It’s not unheard of for the Speaker, who presides over the House, to leave his post and enter the fray, but even Moore acknowledged this may be the first time he’s parried Democrats directly over abortion, an issue, he gently, paternalistically, reminded us is fraught with emotions. [Read more…]

8. Listen to our latest guest interviews with Policy Watch director Rob Schofield

9. Weekly Editorial cartoon:

By John Cole

Commentary, Courts & the Law, Defending Democracy, Education, Higher Ed, Legislature, News

The week’s Top Stories on NC Policy Watch

1. Proposed legislation would dramatically weaken state hog farm oversight

A sentence here, a paragraph there. A strike-through, a repeal, a new section.

Individually, the Farm Act and the House and Senate budgets chip away at the incremental yet significant progress the state has made toward regulating industrialized livestock operations.

But taken in total, a half-dozen provisions create a safe house where these operations, particularly swine farms, can clandestinely conduct their business.

“It’s a coordinated and multi-pronged attack,” on laws protecting the environment and public health, said Will Hendrick, attorney for the Waterkeeper Alliance. [Read more…]

Bonus read: The Farm Act, state budget are “erecting a fortress for the hog industry”

2. New app will allow North Carolina students to share anonymous tips about school threats

Middle-and high-school students across North Carolina will have an opportunity to download a new app next school year that allows them to anonymously report threats to school safety.

The “Say Something” reporting system will be offered to tens of thousands of students via a partnership between the N.C. Department of Public Instruction and Sandy Hook Promise, a national nonprofit based in Newtown, Connecticut that’s led by people who lost loved ones in the tragic 2012 Sandy Hook school shooting that left 28 people dead.

“Students play a critical role in helping to keep schools safe,” State Superintendent Mark Johnson said during a press conference Thursday. “They may see and hear concerns that adults need to know about but may be reluctant to report it.” [Read more…]

3. Teachers would get 3.5 percent pay raise under proposed N.C. Senate budget

Teachers would get an average 3.5 percent pay raise over the next two years under a biennium spending plan released Tuesday by state Republican leaders.

The plan calls for spending $23.9 billion during the 2019-20 fiscal year, and it increases spending on public education by $1.3 billion over the next two years.

Senate leaders told reporters the pay increase would raise the average teacher salary to $54,500 per year over the biennium.[Read more…]

4. Senate budget writers to their “Trump country” constituents: “Drop dead”

In case you missed it, there was new confirmation this week that the people being disproportionately harmed by the refusal of North Carolina Republican senators to include Medicaid expansion in the budget bill they plan to adopt today are — wait for it — their own constituents.

It’s been common knowledge for a long time that lower-income rural communities are among the areas that suffer most from having high rates of uninsured residents, but a recent news story from our neighboring state of Virginia really brings this fact home.

This is from a Tuesday story in the Virginia Mercury entitled “Trump Country sees majority of new enrollees under Va.’s Medicaid expansion”:[Read more…]

Bonus video: Senate ignores Medicaid expansion in budget; Berger says it ‘disincentivizes folks to go to work’ (video)

5. Five basic truths to remember this week about the state budget

It’s one of the great and maddening ironies of the state lawmaking process in North Carolina that the single most important piece of legislation each year is perhaps the most poorly reported and one of the least well-understood.

Every year, as the fiscal year winds down toward its June 30 conclusion, state lawmakers birth a new state budget bill that runs to hundreds of pages and includes all sorts of fundamental decisions about state funding priorities and tax policy, not to mention scores of so-called “special provisions” (i.e. law changes unrelated to the budget that may or may not have been debated previously as the subject of another bill).[Read more…]

6. Hofeller files: GOP mapmaker helped develop Trump’s citizenship Census question

The master mapmaker behind North Carolina’s most contentious and allegedly gerrymandered voting districts apparently also played a role in developing the citizenship question proposed for the 2020 Census by the Trump administration.

Thomas Hofeller’s daughter, Stephanie Hofeller Lizon recently turned over several of his hard drives and digital files to voting rights group Common Cause as part of discovery in their North Carolina state partisan gerrymandering case Common Cause v. Lewis. The news released Thursday about Hofeller’s involvement in the 2020 Census question is the first bit of data released publicly from the “Hofeller files.” [Read more…]

Bonus Read: ACLU notifies US Supreme Court of new evidence in citizenship question case

7. Not so open: Critics say UNC Board of Governors excludes the public from its “public” meetings

Hoping to hear some discussion of the future of the “Silent Sam” Confederate monument, Lindsay Ayling and a few other UNC-Chapel Hill students attempted to attend last week’s meeting of the UNC Board of Governors.

Attempted, as it turns out, was the operative word.

Before the meeting began, while most of the seats in the board room were still empty, Ayling and two other students were told there was no room for them. All the chairs in the room – even the ones that appeared to be empty – were reserved in advance, they were told by campus police.[Read more…]


8. State budget, new scientific tests shine a light on NC’s growing drinking water pollution problem

PFAS contamination found in both Jones and Orange counties

Maysville, which sits on the rim of the Croatan National Forest in Jones County, is home to 1,000 people — about half of whom rely on the town’s sole drinking water well.

And that well, according to a brief sentence in the both the House and Senate versions of the state budget, is contaminated.

But the budget doesn’t say contaminated with what, only that Maysville needs $500,000 to construct a new public supply. [Read more…]

9. Weekly Editorial Cartoon: