Commentary, Defending Democracy, News

Republicans try a double “Hail Mary” in state gerrymandering case

Not that it comes as much of a surprise, but North Carolina Republican leaders have resorted to filing another “Hail Mary” delaying motion in the anti-gerrymandering case of Common Cause v. Lewis. As you may recall, Common Cause v. Lewis is the state court action which challenges the constitutionality of state legislative maps under the state constitution that Republicans admittedly gerrymandered for partisan purposes. It is different from the cases of League of Women Voters of North Carolina v. Rucho and Rucho v. Common Cause described here earlier today, which deal with the state’s gerrymandered congressional map.

Being a case that deals exclusively with state matters, Common Cause v. Lewis was, appropriately, filed in state court. This fact, however, scares the you-know-what out of Republicans due to their concern that state court judges — most notably the state Supreme Court — may well prove receptive to the argument that partisan gerrymandering of the kind that has been inflicted on North Carolina voters is unconstitutional. State judges in Pennsylvania recently took such a position in a similar case.

Faced with the prospect of losing their gerrymandered state legislative maps in state court, Republican defendants in the case have been flailing wildly to avoid or at least delay such an outcome. Recently, they sought to remove the matter to federal court, but that effort was quickly swatted down by Judge Louise Flanagan, who sent the matter back to state court. Now, however, Republicans are trying another absurd delaying tactic.

Yesterday, GOP lawyer Phil Strach (the husband of state elections board executive director Kim Strach) filed a motion in federal court seeking an additional delay on the grounds that the the court’s remand order is subject to an automatic 30 day stay. In their response filed earlier today, lawyers for the plaintiffs described the GOP motion as “baseless” and a “transparent effort to pile delay upon delay.” This is from the plaintiffs’ brief:

Undeterred by this Court’s rejection of their baseless removal, Legislative Defendants have now filed an equally baseless motion seeking to bar the clerk of this Court from mailing a certified copy of the Court’s remand order to the state court for 30 days. But, as Legislative Defendants would have learned had they called to ask, the clerk’s office already mailed the certified remand order before Legislative Defendants filed the instant motion. As Legislative Defendants themselves acknowledge, this means the state court has already regained jurisdiction over this case and can proceed immediately, and Legislative Defendants’ motion is thus moot. Beyond that, the 30-day automatic stay under Rule 62(a) does not apply here for multiple other reasons, including that this case is exempt from Rule 62(a)’s automatic stay because Plaintiffs seek injunctive relief, and Rule 62(a) does not apply to remand orders in any event.

Legislative Defendants’ motion is nothing more than a transparent effort to pile delay on delay. Plaintiffs respectfully request that the Court deny the motion immediately and award such further relief as the Court deems necessary to deter any further gamesmanship by Legislative Defendants to stall state-court proceedings in this case.

The ruling on the motion will, of course, come down to the federal court’s interpretation and application of some rather esoteric rules of civil procedure, but at its core, what this dispute is really about is a desperate GOP attempt to delay the case at all costs in the hope that they can run out the clock on the state court challenge and preserve their gerrymandered maps for another election in 2020.

Let’s hope the federal court quickly sees the scheme for what it is.

Commentary, Courts & the Law, Defending Democracy

Editorial: Reject Mark Harris’ plea to seat him

Rev. Mark Harris

North Carolina’s chaotic 9th District fiasco took another turn Thursday, with Republican candidate Mark Harris asking a court to step in and seal his victory over Democrat Dan McCready, despite mounting evidence that something went badly awry during the election.

Given the blooming investigation into possible election fraud, it’s a bad faith effort that could only damage the public’s good faith in our election process, a point highlighted in a sterling editorial Thursday evening from The Fayetteville Observer.

But with the already apparent resistance to seating Harris in the Democratic-controlled U.S. House of Representatives, which has the power to rebuff him in his quest for a seat, the crisis for 9th District voters seems far from finished.

Check out the editorial below:

Mark Harris’ desperate struggle to claim a tarnished election victory in the 9th Congressional District moved to Wake County Superior Court Thursday as his campaign asked a judge to order the state elections director to certify his victory. That’s a bad idea that could turn out to be a far-reaching miscarriage of justice. While the official vote count gives Harris a 905-vote lead over Democrat Dan McCready, affidavits and other evidence already made public cast doubts on the legitimacy of that victory. Tampering with absentee ballots almost certainly occurred and until several investigations are completed, we won’t know if Harris actually has enough votes to win. Certifying his victory at this point is a risky decision based on guesses and wishful thinking.

It’s unclear when any informed decisions will be made about the elections, since constitutional questions about the elections board led the courts to dissolve it. A hearing on the 9th District race had been scheduled for next week but has been indefinitely postponed until a new board is seated at the end of this month. Harris argues that “Time is of the essence” and that district residents shouldn’t be deprived of representation. But Sen. Thom Tillis has already stepped forward and told residents to contact his office for any assistance they may need with federal issues. That removes any need to rush.

Meanwhile, Republicans appear to forget (conveniently, we expect) that in 2014, when former 12th District Congressman Mel Watt resigned to take a position in the Obama administration, Republican Gov. Pat McCrory and fellow party leaders chose to leave the post vacant until the next election. Residents of the 12th went 10 months without a congressman and the GOP saw no problem with that. After all, they said, there were saving taxpayers $1 million by not holding a special election.

And now it’s life-and-death to have a certified congressman from the 9th, whether or not he really won?

Even if a Superior Court judge orders Harris seated, two other things are likely to delay his journey to Washington:

• Any decision to seat him would almost certainly be appealed to a higher court.

• And the new Democratic leaders of the House of Representatives, who were sworn in on Thursday, have already said they’ll refuse to seat Harris until the investigations are completed. Those leaders have constitutional authority to order a new election — complete with a primary — anyway. If the evidence continues to point to widespread fraud, that’s what they’re likely to do, if the state doesn’t get there first.

Let’s take the time to get this right.


Courts & the Law, Defending Democracy, News

Anita Earls sworn in as new Supreme Court justice in standing room only ceremony

Anita Earls was sworn in Thursday as a new justice on the state Supreme Court. Here she chats with individuals at a reception in her honor at the old state capitol. (Photo by Melissa Boughton)

The newest state Supreme Court Justice Anita Earls had a swearing in ceremony Thursday afternoon that drew a crowd of North Carolina’s biggest movers and shakers in both the legal and legislative world.

Earls wore a classic black skirt suit with an airy white blouse and a shiny gold and silver floral broach pinned onto the middle of her collar. She had the state Supreme Court seal pinned to her lapel. Her big smile was shining; her happiness oozed, and the hugs she gave the people in the room were genuine — it was not the state many are used to seeing her in, particularly in the courtroom. As an attorney, Earls was always the epitome of buttoned up and professional, remaining cool, calm and collected even during what could be perceived as intimidating moments.

Her ceremony attendance list was a long one; more than 300 people RSVP’d to the event, and there were at least three run-off rooms for the crowds that could’t make it to the main Supreme Court courtroom. Attendees included John Edwards, Attorney General Josh Stein, former Chief Justices Henry Frye and Sarah Parker, Gov. Roy Cooper, Patricia Timmons-Goodson, Federal Judge James Wynn, former Justices Bob Edmunds and Bob Orr and many, many legislators.

Per tradition, Barbara Jackson, who lost the race in the midterm to Earls, did not attend the event.

Earls was described by colleagues and friends at the event as esteemed, incredibly hard working and wholly devoted to equal access to justice, and they put their full faith in her. Her election tips the Supreme Court to a 5-2 Democratic majority.

She has a prestigious background with varied experience and is known prominently for her civil rights work. She also founded the Southern Coalition for Social Justice (SCSJ), of which Kareem Crayton is now the interim director.

“There simply would not be an SCSJ without the vision, energy, and commitment of Anita Earls to build an organization that has become a key force in effort to make the South a more equal, just and inclusive place for its citizens,” he said after her ceremony. “Thousands of people across this region are better off today because of the work she has led.”

Crayton said they remain grateful for all that Earls has done, and he congratulated her on a “remarkable achievement.”

Earls, who is the 100th Supreme Court justice, vowed to pull through on her promises to the state. She also spoke about why the job is so important to her.

“Growing up in the time and place that I did, as a young girl, I believed it was my responsibility to bring together my family, my community and my country across the racial lines that divided us” she said during her remarks. “Indeed, I saw that my life, my very survival depended on it.”

She feared her family would be torn apart, and believed she had to bring everyone together to show shared humanity and guarantee equal opportunities for all.

“Now I understand so many years later that bringing us together across all the lines that threaten to divide us: race, gender, ideology, wealth, among others, I understand that no one person can do it alone. It will take changes in our culture. It is influenced by the millions of choices that we all make every day. And it will take all of our countries, public and private institutions, to affect that healing, to bring us together for the common good, to lift us up instead of tearing each other apart. And it requires a system of justice that adheres to the rule of law, a system of laws and institutions to enforce them — they genuinely and with intellectual honesty aspires to equal justice. A system in which no one is above the law, and justice does not depend on gender, wealth, status, political party, race, creed or color. The cases that come before this court impact individual people’s lives in profound ways and have wide-ranging effects on the future of this state. I pledge to give every case full and fair consideration. My personal commitment is to serve justice with a strong heart.”

Below are some of the photos from her event:

Now-Justice Anita Earls talks with her husband during a swearing in ceremony Thursday. (Photo by Melissa Boughton

A Supreme Court justice claps on Anita Earls at her swearing in ceremony Thursday (Photo by Melissa Boughton)

Gov. Roy Cooper sat next to Anita Earls on Thursday at her swearing in ceremony. (Photo by Melissa Boughton)

Former state Supreme Court Chief Justices Sarah Parker and Henry Frye chat after Justice Anita Earls’ swearing in ceremony. (Photo by Melissa Boughton)

State Supreme Court Justice Anita Earls chats with former presidential candidate John Edwards at a reception in her honor. (Photo by Melissa Boughton)

Jane Pinsky takes a photo of new Justice Anita Earls at a reception at the old state capitol. (Photo by Melissa Boughton)

New Justice Anita Earls talks with new Durham District Attorney Satana Deberry. (Photo by Melissa Boughton)

Defending Democracy, News

New Congress to be sworn in today…without Mark Harris

Rev. Mark Harris

When the new Congress convenes today in Washington, throngs of beaming freshmen lawmakers will pour into the U.S. Capitol for an official swearing-in ceremony, followed by swanky receptions to celebrate their arrival.

North Carolina’s Mark Harris won’t be among them.

The Republican candidate is at the center of a heated fight back home, in which state authorities are investigating claims of election fraud surrounding the 9th District seat he thought he’d clinched. Harris holds a narrow lead over Democrat Dan McCready in unofficial results in the disputed race that has roiled North Carolina politics and could result in a fresh election that could drag out for months.

“Mark will not be in Washington this week,” his campaign manager, Jason Williams, told Policy Watch yesterday. “We are hopeful that we can get this resolved as soon as possible so the 9th district can be represented in Congress.”

Harris’ campaign last night announced that it will file a petition today asking a court to “immediately” certify the results, arguing that the state elections board hasn’t disclosed any information to suggest that the votes under investigation “are sufficient in number to change the outcome of the 9th Congressional District election.”

Harris was also slated to be interviewed by state investigators today, staff at the State Board of Elections told WRAL.

It’s not the week Harris had planned.

In November, McCready quickly conceded the close race to his Republican opponent, and Harris traveled to Washington for new-member orientation later that month. He had even picked out office space, grimacing as he drew an unlucky No. 76 out of 85 in the lottery for new members, Bloomberg reported.

But the elections board refused to certify the results during an investigation into allegations that voter fraud boosted Harris’ campaign. The matter is further complicated by uncertainty surrounding the state elections board, which was dissolved in late December in response to a court order. A new board is slated to be seated on Jan. 31.

Dan McCready

McCready withdrew his concession amid the probe, and appears ready to fight for the seat. He posted a video to his Twitter account on New Year’s Day accusing Harris of failing to cooperate with the board’s investigation. “My New Year’s resolution: Let’s bring democracy back to North Carolina,” McCready said.

Amid the uncertainty in the Tar Heel State, House Democratic leadership made it clear that Harris wouldn’t be joining their ranks when the new Congress was sworn in.

“Given the now well-documented election fraud that took place in NC-09, Democrats would object to any attempt by Mr. Harris to be seated on January 3,” incoming House Majority Leader Steny Hoyer of Maryland said last week in a statement.

“In this instance, the integrity of our democratic process outweighs concerns about the seat being vacant at the start of the new Congress.”

Rep. G. K. Butterfield, a Democrat who represents North Carolina’s 1st Congressional District, told Policy Watch yesterday that North Carolina’s lawmakers are watching the race “very closely.” He lamented the fact that the elections board was dissolved before it could settle the dispute. Read more

Courts & the Law, Defending Democracy, News

The State Board of Elections, Ethics has dissolved; there could be a temporary new one but discord continues

The nine-member State Board of Elections and Ethics Enforcement has officially dissolved on account of being unconstitutionally structured, and what happens next is as good a guess as any.

There is controversy about whether the State Board ceases to exist in absence of a current constitutional structure or if it reverts back to its prior five-member structure per the 2015 law. Rep. David Lewis (R-Harnett) and other Republicans maintain the earlier scenario and Gov. Roy Cooper has already started preparing for the latter.

“Governor Cooper this morning sent a letter to the two major party chairs requesting nominations for the State Board of Elections by close of business today,” said spokesman Ford Porter in an email. “These members will serve until a new board is convened on Jan. 31 per [House Bill] 1029.”

Lawmakers voted yesterday to override Cooper’s veto of HB 1029, which restructures the State Board, and it will take effect Jan. 31. In the meantime, Cooper and GOP legislative leaders asked the three-judge panel that ruled the current State Board structure unconstitutional to stay its decision for a fifth time until HB 1029 was in place.

The panel declined to do so and they took the parties to task for disregarding their order.

“The day after the final extension of the Stay was entered, the State Chairman of the Board of Elections and Ethics Enforcement published a discovery and hearing schedule which completely and totally disregarded the timetable established by the extension of the Stay, indicating a complete disregard for an Order of this Court,” states the denial issued Thursday. “The parties have not given even a cursory explanation as to why the hearing was continued from Dec. 28 until Jan. 11, let alone one demonstrating compelling reasons and substantial and reasonable justification, for not only the additional time needed, but the total disregard of the previous Order of the Court in extending the stay.”

The panel is referring to the now former State Board’s timetable for investigating alleged absentee ballot fraud in the 9th congressional district, because that has been the backdrop of all the extensions of time for the nine members to keep working.

State Board spokesman Pat Gannon said Friday that in the State Board’s absence after noon, all members of the agency would continue to work on the 9th congressional district investigation and perform other election administration functions as necessary. The Board is what dissolved, not the agency.

The current State Board before it dissolved was asked to consider an emergency petition by the Mark Harris for Congress Committee to certify his race, despite the ongoing investigation into absentee ballot fraud.

“The citizens of the 9th District have an expectation to be represented when Congress convenes on Jan. 3,” the petition states. “The State Board should not deprive the citizens of the 9th District of their right to representation.”

There would have had to have been five members of the State Board to call an emergency meeting to consider the petition, but only two did, according to a letter from former State Board Chairman Josh Malcolm to Harris’ attorney.

The letter indicates the investigation is ongoing but it also sheds some light on Harris’ lack of cooperation with the former State Board. It states that Harris has been under a subpoena since Dec. 1 but has only produced 398 pages of documents after indication that he possessed about 140,000 additional documents. The letter reinforces the request that Harris comply fully with the subpoena.

It also states that staff at the State Board agency made several attempts to schedule an interview with Harris that have been unsuccessful thus far.

“The main goal of the State Board staff has been and continues to be a thorough and transparent investigation into elections irregularities, so that State Board members have as much evidence as possible in front of them when they consider whether to certify the 9th congressional district contest or order a new election,” the letter states. “The faith of voters in our election system depends on that.”

Editor’s note: This is a breaking news story and will be updated throughout the day.