Press Release: Voters File Federal Court Challenge to Voter Intimidation Efforts in Virginia

FOR IMMEDIATE RELEASE

April 12, 2018

Contact:

Dustin Chicurel-Bayard, dustin@scsj.org, 919.323.4051

Mackenzie Long, mlong@wearerally.com, 916.524.3197

 

Voters File Federal Court Challenge to Voter Intimidation Efforts in Virginia

Voter intimidation violates Ku Klux Klan Act, created in 1871 to protect voters
from being harassed when attempting to register or vote

 

ALEXANDRIA, VA – Voters subjected to intimidation efforts and false accusations of illegal voting in Virginia filed a federal lawsuit today, citing violations of the Ku Klux Klan Act and the Voting Rights Act, as well as state defamation laws. The suit was filed in Virginia’s Eastern District federal court. Plaintiffs include the Richmond Council for the League of United Latin American Citizens, as well as four individual voters who were recklessly accused of committing election-related crimes in reports published by the Public Interest Legal Foundation (PILF). The defendants in the case are PILF and J. Christian Adams, the organization’s President and General Counsel.

The Southern Coalition for Social Justice and Protect Democracy represent plaintiffs in the case, along with the law firm of Emery Celli Brinkerhoff and Abady LLP and pro bono attorneys.

“The law guarantees that all eligible Americans may participate in elections free from intimidation or libel,” said Allison Riggs, Senior Voting Rights Attorney at the Southern Coalition for Social Justice. “It’s troubling that there’s a growing pattern of voter intimidation across the country that targets everyday, private Americans with tactics that bully them and discourage them from registering to vote and casting a ballot for the candidate of their choice.  Such bullying damages the foundation of our democracy and represents the kind of voter intimidation that civil rights laws are designed to eradicate.”

Plaintiffs’ claims relate to two reports released by PILF: Alien Invasion in Virginia and Alien Invasion II. The first report was published in September 2016 and accuses voters of committing multiple felonies, from illegally registering to vote, to casting an ineligible ballot. The follow-up report, accusing even more voters, was released in May 2017.

“Defendants were wildly reckless in the statements they made about our clients.  They should have known that the people they were accusing of felonies were, in fact, eligible voters,” said Andrew G. Celli, Jr. and Alanna Kaufman of the law firm of Emery Celli Brinckerhoff & Abady LLP.  “Our clients have committed no crime.  Their names have been smeared and their personal contact information spread widely. This is a modern, covert, and insidious effort to intimidate voters.  It must be remedied.”

The lawsuit asserts that defendants’ conduct  “violates both the Voting Rights Act, see 52 U.S.C. § 10307, and the Ku Klux Klan Act, see 42 U.S.C. § 1985(3), because it intimidates constitutionally eligible voters, like Plaintiffs, into not exercising their right to vote.” (p. 5, LULAC of Richmond v. Public Interest Legal Foundation)

“Regardless of whether you are a Republican or a Democrat, the importance of protecting Americans’ right to vote free of intimidation should be something that all Americans can agree on,” said Cameron Kistler of Protect Democracy.  “Our democracy depends on it.”

The complaint in LULAC of Richmond v. Public Interest Legal Foundation can be found at  https://www.southerncoalition.org/wp-content/uploads/2017/01/LULAC-of-Richmond-v.-PILF.pdf

 

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The Southern Coalition for Social Justice is a non-partisan legal organization that partners with communities of color and economically disadvantaged communities in the south to defend and advance their political, social and economic rights.

 

Protect Democracy is a non-partisan organization dedicated to preventing our democracy from declining into a more authoritarian form of government.

 

Emery Celli Brinckerhoff & Abady LLP is a litigation boutique that focuses on civil rights, commercial, criminal, and ethics matters.

Voting Rights Advocates Seek New Districts in Wake County for the 2018 Election

RALEIGH, N.C. — The Southern Coalition for Social Justice filed a redistricting challenge in Wake County Superior Court today arguing that the 2017 changes to four Wake County State House Districts violate the state constitution’s prohibition against mid-decade redistricting; asking the court to prevent the illegally altered Wake County districts in the legislature’s 2017 plan from going into effect; and asking the court to ensure that any remedial plans apply the lines originally drawn for House Districts 36, 37, 40, and 41, contained in the 2011 adopted map, for the upcoming 2018 elections.

The lawsuit was filed on behalf of North Carolina NAACP, the League of Women Voters of North Carolina, Democracy North Carolina, North Carolina A. Philip Randolph Institute, and four individual plaintiff-voters from Wake County.

The focal point of the lawsuit is the legislature’s altering of state House District lines in Wake County when it engaged in a court-ordered redistricting in 2017 to cure two racially gerrymandered districts in the county.

When lawmakers used this opportunity to change the lines for House Districts 36, 37, 40, and 41(none of which were named in the court order), they went beyond what the federal court directed and altered the lines of districts that did not need to be redrawn to remedy the racial gerrymandering. Doing so violated the mid-decade redistricting prohibition found in Article II, § 5 of the North Carolina Constitution. (See http://bit.ly/NCarolinaConstitution, p. 6).

The complaint asks that the four state House Districts in Wake County be returned to their 2011 boundaries in time for 2018 state legislative elections.

The lawsuit was filed nine days after a three-judge panel in the same court decreed that the legislature’s handling of Wake County’s districts should be addressed in a new lawsuit.

Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice and lead attorney in the case, issued the following statement after the lawsuit was filed:

“Voters in North Carolina have a state constitutional right to have their legislative districts changed only once a decade. This is an important protection in state law–one that many states don’t have–and its clear purpose is to prevent the ills of gerrymandering and political gamesmanship present here. When tasked with fixing racially gerrymandered districts in 2017, the legislature made no secret of using politically-motivated and illegal changes throughout the county, violating the North Carolina Constitution in the process. Swapping one constitutional violation for another is not acceptable, and we expect the state courts to vigorously protect the state constitutional rights of our clients.”

Janet Hoy, co-President of the League of Women Voters of North Carolina, offered the following statement about the challenge:

“North Carolinians have not been able to vote in constitutional state legislative districts this decade. Lawmakers have dodged their obligations to enact fair districts time and time again. That will not deter us from continuing to push fair districts for voters that comply with the state and federal constitutions.”

Marian Lewin, President of the League of Women Voters of Wake County, issued the following statement after the lawsuit was filed:

“It’s a shame that lawsuits like this are necessary. We shouldn’t have to go to courts to have fair districts. But until lawmakers listen to the voters and pass redistricting plans that don’t discriminate against voters or violate the law, we are going to need strong women – like the individual plaintiffs from Wake County in this case – to continue to stand up and demand fair voting districts.”

A PDF of the lawsuit can be found at http://bit.ly/NCNAACPvLewisComplaint

A PDF of the Motion for Preliminary Injunction can be found at http://bit.ly/NCNAACPvLewisPI

Plaintiffs Quick to Seek Relief in State Court after U.S. Supreme Court Action

RALEIGH, N.C. – Plaintiffs in a state court redistricting challenge have asked a three-judge panel in Wake County Superior Court to order new districts into effect that comply with the North Carolina Constitution.  The motion comes less than 24 hours after the U.S. Supreme Court ordered that districts drawn by a Special Master that remedy racially gerrymanders be included in the state’s districting plan but temporarily blocked the Special Master’s recommended House districts in Wake and Mecklenburg Counties that were intended to resolve state constitutional violations.

 

In December, plaintiffs in Dickson v. Rucho asked the three-judge panel in Wake County Superior Court to retain jurisdiction in the case until it was clear that the remedy enacted at the federal level in Covington v. North Carolina also fixed any state constitutional violations.  The order by the U.S. Supreme Court on Tuesday leaves the door open for the state court to take up this matter.

 

The Southern Coalition for Social Justice represents the N.C. NAACP, the League of Women Voters of North Carolina, Democracy North Carolina, the N.C. A. Philip Randolph Institute, and more than 30 individual plaintiffs in Dickson v. Rucho.

 

Today’s filing can be found at http://bit.ly/DicksonEmRelief

 

 

Excerpts from today’s motion:

 

“The stay entered yesterday by the United States Supreme Court does not deprive this state court of the authority or duty to interpret the state constitution and to ensure that Joint Plaintiffs are afforded full constitutional relief.”  (p. 5)

 

 

“…this Court can and must rule on state constitutional issues.  This Court must ensure that the remedial plan does not embed other violations of the state constitution in the legislature’s attempted remedy of federal constitutional violations.  This Court is the only court that can now provide for elections under constitutional districts for the first time this decade.”  (p. 7)

 

 

“It is not sufficient that the General Assembly simply enact new districts if these new districts also do not correct the constitutional flaws and comply with state and federal law.  This Court can and must intervene if deficiencies are identified and left unaddressed. The North Carolina Supreme Court upheld this exact kind of intervention in Stephenson v. Bartlett…” (p. 8)

 

 

“Thus, because the Special Master’s and Covington plaintiffs’ proposed maps in these counties remedy the racial gerrymandering violation without affecting House Districts 36, 37, 40, 41 and 105, it is clear that the enacted Wake and Mecklenburg County House district configurations violate the state constitutional prohibition on mid-decade redistricting and cannot be enacted or approved by this Court.”  (p. 13)

 

 

“For all the foregoing reasons, Joint Plaintiffs respectfully request that this Court:

 

  1. Issue a ruling that these consolidated cases are not moot and that judgment is entered in favor of Joint Plaintiffs;
  2. Declare that the 2017 Enacted House Districts 36, 37, 40, 41, and 105 violate the state constitutional prohibition on mid-decade redistricting;
  3. Enjoin Defendants from conducting elections under the 2017 enacted House plan’s configurations of the Wake and Mecklenburg County districts;
  4. Order that the configurations of Wake and Mecklenburg County House districts designed by the Special Master in Covington, which do not violate the state constitutional prohibition on mid-decade redistricting, be ordered into effect for the 2018 election cycle; and
  5. Order that any citizen residing in a House district modified by the Court’s order as of the closing day of the filing period for the 2018 election be qualified to serve as a Representative if elected to that office, notwithstanding the requirements of Section 7 of Article II of the North Carolina Constitution.”  (p. 14-15)

U.S. Supreme Court Orders into Effect Fixes for Racially Gerrymandered Districts for 2018 Election

Puts hold on some of the Special Master’s districts related to state constitutional violations

WASHINGTON, D.C. – This evening the U.S. Supreme Court refused to block a district court’s order that remedied racially gerrymandered districts that were first enacted in the state’s 2011 redistricting plan and would have been perpetuated by the legislature’s 2017 plan. The Supreme Court did stay revisions to a small number of districts that violate the state constitution, however.

The districts redrawn by the Special Master to correct racial gerrymandering concerns will go into effect this election cycle. The state court will likely determine the future of the districts in Wake and Mecklenburg Counties, which were ordered redrawn to comply with the state’s prohibition on mid-decade redistricting.

Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice who represents plaintiffs in the case, issued the following statement after the decision was announced:

“Finally, after years of litigation, North Carolinians will be able to elect their state legislators from districts that do not discriminate against voters based on their race. This decision represents a major victory for all North Carolinians who value fair elections and democratic principles.”

“To date, the legislature has done all that it can to obstruct, delay and undermine this order, which wastes time and taxpayer money. But now we’ll finally have districts that do not segregate voters on the basis of race. And despite this long and arduous journey, there are courageous people, like the plaintiffs in this case, who have not hesitated to stand up against every effort to abuse our democracy and unlawfully divide voters based on race. The Southern Coalition for Social Justice is very proud and honored to represent them.”

“We are confident that the legislature’s gross abuse of its power will ultimately either be shot down on full appeal or addressed by the state court. We look forward to presenting our case to the U.S. Supreme Court on those merits to make sure that the final redistricting plan fully complies with North Carolina’s constitution.”

The Southern Coalition for Social Justice also represents plaintiffs in a state redistricting challenge, Dickson v. Rucho, which is currently before the Wake County Superior Court. That court could now take up the question of whether districts in Wake and Mecklenburg County need to be altered in order to avoid violating the state constitution.

The Southern Coalition for Social Justice, along with the Poyner Spruill law firm, represents the plaintiffs in the lawsuit.

Background about this case:

On June 5, 2017, the U.S. Supreme Court summarily affirmed a lower court’s decision in Covington v. North Carolina that 28 of North Carolina’s state legislative districts are racial gerrymanders. The decision was issued “per curiam,” meaning by a unanimous decision of the Court. The ruling came two weeks after the U.S. Supreme Court found two of the state’s congressional districts were also racial gerrymanders.

On July 31, 2017, North Carolina’s Middle District Court ordered the North Carolina General Assembly to redraw legislative maps by September 1, 2017, in order to remedy the unconstitutional racial gerrymanders. The legislature adopted new maps on August 30, 2017.

Plaintiffs filed objections to the newly drawn district plans and a hearing was held in front of a three-judge panel in the Middle District of North Carolina on October 12, 2017.

On October 26, 2017, the federal panel announced its intention to appoint Dr. Nathaniel Persily to the position of “Special Master” to review the newly adopted redistricting plan and make recommendations to ensure compliance with state and federal law in a few areas of the map where the Court believed the remedial plan was inadequate or otherwise illegal. Dr. Persily’s appointment became official on November 1, 2017.

Dr. Persily issued draft recommended changes to the state’s redistricting plan on November 13, 2017, and solicited feedback from the plaintiffs and defendants. Both submitted comments.

Meeting the deadline set by the three-judge panel, Dr. Persily submitted his final set of recommendations to the district court on December 1, 2017.

The three-judge panel heard arguments from the plaintiffs and defendants regarding the Special Master’s plan on January 5, 2018.

On January 19, 2018, the three-judge panel ordered that the Special Master’s recommendations be incorporated into the state’s state legislative redistricting plan.

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Court Orders Special Master’s Recommended Districts Incorporated into State Legislative Redistricting Plan to Correct Constitutional Flaws

Court-ordered maps are now law

GREENSBORO, N.C. – A panel of three federal court judges has issued a unanimous order that incorporates the recommendations of the court-appointed Special Master, Dr. Nathan Persily, into North Carolina’s state legislative districts.  The Dr. Persily was asked to alter nine state legislative districts after the Court identified that the 2017 legislatively-enacted plans that were supposed to remedy the racial gerrymandering identified in the 2011 plans failed to adequately remedy the constitutional flaws or otherwise violated state law.  The districts as ordered by the court are now the official state legislative districts of the state.

“We appreciate the input and guidance of the Special Master and the Court to fully eliminate the unconstitutional use of race to segregate voters in North Carolina state legislative districts,” said Allison Riggs, senior voting rights attorney at the Southern Coalition for Social Justice. “North Carolinians across this state fought for fair districts. We hope that legislators respect the reasoned opinion of this court that this kind of race discrimination has no place in our democracy.”

This same three-judge panel found in 2016 that twenty-eight state legislative districts to be unconstitutional racial gerrymanders.

The Southern Coalition for Social Justice, along with the Poyner Spruill law firm, represents the plaintiffs in the lawsuit.

A copy of the court order can be found at http://bit.ly/CovingtonOrder

Background about this case:

On June 5, 2017, the U.S. Supreme Court summarily affirmed a lower court’s decision in Covington v. North Carolina that 28 of North Carolina’s state legislative districts are racial gerrymanders.  The decision was issued “per curiam,” meaning by a unanimous decision of the Court. The ruling came two weeks after the U.S. Supreme Court found two of the state’s congressional districts were also racial gerrymanders.

On July 31, 2017, The federal court for North Carolina’s Middle District ordered the General Assembly to redraw legislative maps by September 1, 2017, in order to remedy the unconstitutional racial gerrymanders.  The legislature adopted new maps on August 30, 2017.

Plaintiffs filed objections to the second enacted district plans and a hearing was held before the panel of three judges on October 12, 2017.

On October 26, 2017, the Court announced its intention to appoint Dr. Nathaniel Persily to the position of “Special Master” to review the newly adopted redistricting plan and recommend adjustments to ensure the map’s compliance with state and federal law.  Dr. Persily’s appointment became official on November 1, 2017.

Dr. Persily issued a draft recommending changes to the state’s redistricting plan on November 13, 2017, and he solicited feedback from the plaintiffs and defendants.  Both parties submitted comments.

Meeting the deadline set by the three-judge panel, Dr. Persily submitted his final set of recommendations to North Carolina’s Middle District Court on December 1, 2017.

The three-judge panel heard arguments from the plaintiffs and defendants regarding the Special Master’s plan on January 5, 2018.

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Supreme Court Grants North Carolina’s Application to Delay Redrawing of Electoral Maps, Putting Fair Elections in North Carolina in Jeopardy For 2018 Election

WASHINGTON, D.C. – Today, the Supreme Court said North Carolina does not have to redraw its congressional voting maps by January 29, as a federal district court ordered on January 9 when it struck down the 2016 map as an unconstitutional partisan gerrymander.

Campaign Legal Center (CLC) and the Southern Coalition for Social Justice (SCSJ) represent the League of Women Voters of North Carolina, in this legal challenge to state’s 2016 maps. North Carolina’s maps have been in dispute since 2012, and the Supreme Court invalidated the state’s 2012 and 2014 maps as a racial gerrymander. In 2016, North Carolina voters went to the polls with the current map, which the district court has now also ruled unconstitutional.

“North Carolina voters deserve to have a fair map before the 2018 election, or they risk a fourth consecutive election under an unconstitutional map that does not reflect their preferences,” said Ruth Greenwood, senior legal counsel, voting rights and redistricting at CLC. “A single election under an unconstitutional map is one too many; four are intolerable. For that reason, the Supreme Court must move quickly to hear this case this term.”

“Voters and even most elected officials agree that partisan gerrymandering is violating the constitutional rights of Americans all over the country,” said Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice.  “While we are disappointed that the stay was granted, North Carolinians deserve to participate in fair elections in 2018.  We are optimistic that the U.S. Supreme Court will, before the end of this term in June, recognize the harm to our democracy created by partisan gerrymandering and find such egregious efforts to diminish voters’ power unconstitutional. We still believe the day is coming soon for the General Assembly to be held to account for this madness.  The law and the facts of this case make that clear.”

The Supreme Court is currently considering a case challenging Wisconsin’s state assembly maps as an unconstitutional partisan gerrymander. CLC and co-counsel represent 11 Democratic voters in the state in the landmark case, Gill v. Whitford. The federal district court in North Carolina applied the same tests for measuring partisan symmetry as applied in the Wisconsin case, indicating that there is in a fact a way to consistently measure what constitutes an unconstitutional partisan gerrymander. CLC has combined forces with other groups and legal teams as these cases advance together through the courts.

“It’s clear that partisan gerrymandering continues to worsen decade by decade, and the result is voters are becoming voiceless in the political process. That is not democracy,” said Paul Smith, vice president of litigation and strategy at CLC, who argued Whitford before the Supreme Court in October. “Lawmakers will most likely never reform the system so long as they can get away with drawing maps that keep them in power. The Supreme Court is our last resort and has the opportunity this term to provide guidance to federal courts and state legislators to understand when a map crosses the line.”

Read more about the case League of Women Voters of North Carolina v. Rucho.

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Filed: Request for U.S. Supreme Court to allow congressional redistricting to move forward

On Wednesday, January 17, the Southern Coalition for Social Justice filed plaintiffs’ response to the emergency stay application to the U.S. Supreme Court, on behalf of the League of Women Voters of NC.  The response we just filed with the court can be found at http://bit.ly/LWVOpposition

Feel free to read the brief in full, but here are excerpts that highlight why the U.S. Supreme Court should allow the redistricting process to move forward and deny the request to stay the lower court’s decision.

 

Excerpts from Plaintiff’s Response in Opposition to Emergency Stay Application:

p. 1:

In the oral argument in Gill v. Whitford, Justice Kennedy raised the hypothetical of a state law that “says all districts shall be designed as closely as possible to conform with traditional principles, but the overriding concern is to increase [seats] for party X.” Oral Argument Tr. at 19, Gill v. Whitford, No. 16-1161 (U.S. Oct. 3, 2017). Counsel for the legislative amici (who also represents the Appellants here) agreed that such overt partisan discrimination would be unconstitutional. “[T]hat could be your instance of a problem that can be actually solved by the Constitution.” Id. at 26.

Justice Kennedy’s hypothetical is this case.

p. 5:

Third, Appellants’ motion should be denied because, if remedial proceedings are stayed, North Carolina’s voters will likely be condemned to a fourth consecutive election under an unconstitutional congressional map. In 2012 and 2014, the districts eventually invalidated on racial gerrymandering grounds in Cooper v. Harris, 137 S. Ct. 1455 (2017), were used. In 2016, North Carolina’s voters went to the polls in an election in which, thanks to partisan gerrymandering, their preferences were not reflected in the makeup of their congressional delegation. And in 2018, this injury will be inflicted anew if a stay is granted.

 

p. 5 – 6:

Moreover, in that event, the merits briefing should be expedited so as to allow a decision this Spring, in time for a new plan to be used in the 2018 election. A single election under an unconstitutional map is one too many; four are intolerable.

p. 24:

While Appellants have not made a persuasive claim of irreparable harm, the voters of North Carolina will be irreparably injured if a stay is granted. When considering a stay request, the Court must “balance the equities.”

 

Analysis of N.C. Judicial Redistricting Proposal Finds Racial and Partisan Biases

DURHAM, N.C. – A white paper released today by the Southern Coalition for Social Justice documents some of the racial and partisan biases infecting the most recent judicial redistricting plan presented by a state legislative committee.  Draft judicial districts unveiled in the December meeting of the Senate Select Committee on Judicial Reform and Redistricting covered many of the same geographic areas as legislative districts found to be unconstitutional racial gerrymanders in some places and are likely to lead to an enormously disproportionate number of Republican judges being elected throughout the state.

“If enacted, the most recent judicial redistricting proposal would create layers upon layers of unconstitutionality in our judicial system,” said Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice and author of the white paper. “Huge variation in the number of residents per judges across our state, with a consistent pattern of too many people per judge in our urban areas will likely result in people of color disproportionately having less access to our justice system.”

The full judicial redistricting analysis can be found at http://bit.ly/JudicialRedistricting

The analysis also highlights strong evidence of racial and partisan gerrymandering.  Many of the districts in the proposal look strikingly similar to districts unanimously invalidated or under continued scrutiny as racial gerrymanders from federal courts.  Specifically, districts in Cumberland and Guilford counties appear to pack African-American residents into districts with fewer resources.  The result is unfair lack of access to judicial resources for those communities amounting to second-class justice.

“The most recent judicial redistricting plan represents a gross political gerrymander, designed to ensure that Republican judges will be elected in a disproportionate number of districts statewide. This is even more concerning given the recent decision by a federal court that found North Carolina’s congressional district plan to be unconstitutional partisan gerrymanders,” added Riggs.  “Taken together, these constitutional flaws will almost certainly create second-class justice for people of color and the people who choose to associate with the political party not in power.  Neither is an appropriate element in structuring an independent and fair judiciary.”

According to the analysis, Republican judges would be expected to win 70 – 72% of Superior Court races, 69.4 – 71 % under the most recent plan put forth in the legislative committee.

The report also highlights population deviations in the judicial redistricting plan that dilute the voting strength of some North Carolinians while advantaging others, as well as analysis of the disproportionate pairing of judges who are African-American and/or registered Democrats.

“While it’s true that the legislature has been working on judicial redistricting for months, albeit in a completely non-transparent manner, the current plan is something that the public has only seen for three weeks over the holidays.  The impacts of shifting court resources and apportioning voters per judges is something that changes with each update or version of the redistricting proposal,” added Riggs.  “North Carolinians need time to figure out what each change means for important legal services in the community – such as drug courts, guardian ad litem programs, and so much more.  Anyone acting in good faith should know that and should want meaningful input from affected judges and voters.  We need a more thoughtful and inclusive process.”

“The one thing that’s clear from the most recent plan, though, is that it for Democrats and North Carolinians of color a system in which they will receive second-class justice.  That is unacceptable,” concluded Riggs.

The full judicial redistricting analysis can be found at http://bit.ly/JudicialRedistricting

 

 

 

 

Federal Courts Strikes Down North Carolina Congressional Plan as Unconstitutional Partisan Gerrymander

GREENSBORO, N.C.  – A federal three-judge panel for North Carolina’s Middle District has struck down North Carolina’s 2016 congressional plan as an unconstitutional partisan gerrymander.  That 2016 plan was developed after a federal court invalidated two congressional districts as unconstitutional racial gerrymanders.  When the legislature purported to “remedy” that racial gerrymandered plan with an unabashed and admitted partisan gerrymander, the League of Women Voters of North Carolina and several voters from across the state filed suit.

Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice, offered the following statement after the opinion was released:

“A bipartisan three-judge federal panel agreed with us today that partisan gerrymandering is an affront to our Equal Protection Clause.  They recognized the egregious nature of what the North Carolina General Assembly did in 2016, purportedly to remedy another unconstitutional congressional redistricting plan.”  

“We’re enormously gratified on behalf of our clients and all voters in North Carolina that no one will have to endure another congressional election under an unconstitutional map.  The court was clear in demanding a real remedy before the 2018 elections, and we expect the General Assembly to respect that order.”

Ruth Greenwood, senior legal counsel, voting rights and redistricting at Campaign Legal Center (CLC) issued the following quote after the opinion was released:

“The court handed voters a major victory today by reinforcing the core principle that voters should choose their representatives, not the other way around.  North Carolina should take this opportunity to draw a fair map that does not discriminate against voters. And marginalized voters in other states should be encouraged that the courts have adopted a standard for measuring partisan symmetry that can be used to set limits on the practice of gerrymandering nationwide.”

The court’s order can be found at http://bit.ly/NCPartisanGerrymanderingDecision

 

Per the ruling, the North Carolina General Assembly has until January 29 to enact a remedial plan; the federal court plans to employ a special master to draw an alternative remedial plan, and the remedial plan should be enacted before the 2018 congressional elections.

Regarding the 2018 Electionp. 187

Having concluded that the 2016 Plan violates the Equal Protection Clause, the First Amendment, and Article I of the Constitution, we now must determine the appropriate remedy. Absent unusual circumstances, “such as where an impending election is imminent and a State’s election machinery is already in progress,” courts should take “appropriate action to insure that no further elections are conducted under the invalid plan.” Reynolds, 377 U.S. at 585. As the 2018 general election remains many months away and the 2018 election cycle has not yet formally begun, we find no such circumstances exist. Accordingly, we enjoin Defendants from conducting any further elections using the 2016 Plan.

Regarding the remedial planp. 189-190

No later than 5 p.m. on January 29, 2018, the State shall file with the Court any enacted proposed remedial plan, along with: 1. transcripts of all committee hearings and floor debates related to the proposed remedial plan; Case 1:16-cv-01026-WO-JEP Document 118 Filed 01/09/18 Page 189 of 205 190 2. the “stat pack” for the proposed remedial plan; 3. a description of the process the General Assembly, and any constituent committees or members thereof, followed in drawing and enacting the proposed remedial plan, including, without limitation, the identity of all participants involved in the process; 4. any alternative plans considered by the General Assembly, any constituent committee responsible for drawing the remedial plan, or the leadership of the General Assembly or any such committee; and 5. the criteria the General Assembly, any constituent committee responsible for drawing the remedial plan, and the leadership of the General Assembly or any such committee applied in drawing the proposed remedial plan, including, without limitation, any criteria related to partisanship, the use of political data, or the protection of incumbents. No later than 5 p.m. on February 5, 2018, Plaintiffs and other interested parties may file objections to any enacted proposed remedial plan and submit an alternative remedial plan. No later than 5 p.m. on February 12, 2018, Defendants may file responses to any such objections.

Regarding the Special Masterp. 191

To that end, we intend to appoint in short order a Special Master pursuant to Federal Rule of Civil Procedure 53 to assist the Court in drawing an alternative remedial plan. Rodriguez v. Pataki, 207 F. Supp. 2d 123, 125 (S.D.N.Y. 2002) (“[T]he ‘eleventh hour’ is upon us, if indeed it has not already passed. It is therefore necessary for this Court to prepare for the possibility that this Court will be required to adopt an appropriate redistricting plan.”). Case 1:16-cv-01026-WO-JEP Document 118 Filed 01/09/18 Page 190 of 205 191 Accordingly, we direct the parties to confer and file no later than January 16, 2018, a list of three qualified and mutually acceptable candidates to serve as Special Master. In the event the parties fail to agree as to a list of candidates, the Court may identify a special master without input from the parties.

Other notable excerpts:

From p. 25:

We further conclude that the 2016 Plan violates the Equal Protection Clause because the General Assembly enacted the plan with the intent of discriminating against voters who favored non-Republican candidates, the plan has had and likely will continue to have that effect, and no legitimate state interest justifies the 2016 Plan’s discriminatory partisan effect. We also conclude that the 2016 Plan violates the First Amendment by unjustifiably discriminating against voters based on their previous political expression and affiliation. Finally, we hold that the 2016 Plan violates Article I by exceeding the scope of the General Assembly’s delegated authority to enact congressional election regulations and interfering with the right of “the People” to choose their Representatives.

From p. 46:

Partisan gerrymandering runs contrary to both the structure of the republican form of government embodied in the Constitution and fundamental individual rights preserved by the Bill of Rights. As detailed more fully below, partisan gerrymandering of congressional districts constitutes a structural violation because it insulates Representatives from having to respond to the popular will, and instead renders them responsive to state legislatures or political factions thereof.

From p. 49-50:

Partisan gerrymandering also runs afoul of rights that “are individual and personal in nature,” Reynolds, 377 U.S. at 561, because it subverts the foundational constitutional principle that the State govern “impartially”—that “the State should treat its voters as standing in the same position, regardless of their political beliefs or party affiliation.” Davis, 478 U.S. at 166 (Powell, J., concurring in part and dissenting in part); see also infra Part III. And partisan gerrymandering infringes on core political speech and associational rights by “burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.” Vieth, 541 U.S. at 314 (Kennedy, J., concurring in the judgment); see also infra Part IV. That partisan gerrymandering encroaches on these individual rights by undermining the right to vote—the principle vehicle through which the public secures other rights and prevents government overreach—magnifies the constitutional harm. As the Supreme Court explained in Wesberry, “[o]ur Constitution leaves no room for classification of people in a way that unnecessarily abridges [the right to vote]” because “[o]ther rights, even the most basic, are illusory if the right to vote is undermined.” 376 U.S. at 17–18. To that end, the Supreme Court long has held that “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.” United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

A partisan gerrymander that is intended to and likely has the effect of entrenching a political party in power undermines the ability of voters to effect change when they see legislative action as infringing on their rights. And as James Madison warned, a legislature that is itself insulated by virtue of an invidious gerrymander can enact additional legislation to restrict voting rights and thereby further cement its unjustified control of the organs of both state and federal government.

MIKE MORONES / THE FREE LANCE–STAR

Virginia NAACP argues that election administration error harmed black voters

RICHMOND, Va. – The Virginia State Conference NAACP submitted an amicus brief today with the U.S. Fourth Circuit Court of Appeals in support of an emergency appeal filed in the House District 28 election case, arguing that a failure to call for a new election would harm voters of color.  Hundreds of voters in Virginia’s House District 28 were assigned to the incorrect House District in the 2017 election.  Of the 348 registered voters improperly assigned to state House of Delegate districts, 147 voted in the 2017 general election.  That is enough to change the outcome of the race between Josh Cole and Robert Thomas, a race Thomas won by 71 votes.  The problem–voters being assigned to the wrong district–had been identified multiple times starting at least two years ago and election administrators failed to correct the error.

“Voters were clearly disenfranchised on a scale that is large enough to have affected the outcome of an election,” said Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice who filed the amicus brief on behalf of the Virginia State Conference NAACP.  “Virginia law provides them no administrative remedy, so the plaintiffs in this case took the only option available to them–seeking relief from a federal court.  If democracy is to function properly, election administrators must correct problems like these when those problems are brought to their attention.”

According to the amicus brief, Virginia election officials have been aware of voters being misassigned since 2015.  The problem was again brought to the attention of election officials in March 2016, March 2017, and November 2017.  The voters who were assigned to the wrong district and thus given the wrong ballot were, in at least two places, living on streets or clusters of homes that are nowhere near the edges of a district.  This indicates that routine clerical errors are not likely.

“This well-known error has a disproportionate impact on people of color,” said Jesse Frierson, Political Action Committee Chair and member of VSC NAACP Executive Committee.  “Many voters knew they were given a wrong ballot.  Some even pointed to a map at their voting place showing election officials where they lived.  They were not only ignored, they were denied their right to vote with a provisional ballot.”

Kenneth Lecky, a Virginia voter, filed an appeal in Fourth Circuit U.S. Court of Appeals requesting a preliminary injunction be filed to prevent the election results from being certified.  The amicus brief filed by NAACP supports that request and offers evidence on how a failure to fix this problem by calling for a new election in that district will harm voters of color.

“Taking away or diluting someone’s right to vote is never acceptable,” concluded Frierson. “We need the court to step in to fix this injustice and help make sure it won’t happen again.”

The amicus brief filed on behalf of the Virginia State Conference of the NAACP can be found at http://bit.ly/LeckyAmicus