Legislative Leaders Decline to Appeal Ruling of Unconstitutional Redistricting in Wake County State House Districts

RALEIGH, N.C. – On February 15, 2019, legislative defendants filed a notice withdrawing their appeal of a Superior Court ruling that found the 2017 redistricting of four Wake County House districts to be unconstitutional.  In November 2018, a three-judge panel found that the redistricting changes violated the North Carolina Constitution’s prohibition on mid-decade redistricting.  The court’s order requires that legislators return the district lines to their previous configuration during this long legislative session.

 

The Southern Coalition for Social Justice represents plaintiffs in the case which include the North Carolina NAACP, the League of Women Voters of North Carolina, Democracy North Carolina, and the North Carolina A. Philip Randolph Institute and four individual Wake County voters.

 

Allison Riggs, Senior Voting Rights Attorney for the Southern Coalition for Social Justice, issued the following statement after legislative defendants announced their intention to drop their appeal November’s decision:

 

“We appreciate the defendants’ decision drop their appeal. The public is better served by correcting constitutional infirmities than by a prolonged legal defense of patently illegal maps. It is still deeply troubling that the last election of the decade is the first and only one in which Wake County voters will have fully constitutional State House districts.  Voters deserve districts that do not discriminate against them based on their race, are not manipulated for partisan purposes, and do not violate their state constitutional rights.  We will continue to advocate for fair and legal redistricting and we will litigate on behalf of voters where necessary to hold legislators accountable.”

Racial Equity Report Cards Continue to Show Disparities in Achievement and Discipline

This year’s report cards include teacher diversity statistics for the first time

Durham, N.C. — The 2019 Annual Racial Equity Report Cards released by the Youth Justice Project of the Southern Coalition for Social Justice reveal significant racial disproportionality across the state and in most individual school districts. The report cards use public data on academic achievement, school personnel, school discipline, and juvenile court involvement to provide a snapshot of a community’s school-to-prison pipeline, including any racial disproportionalities that exist in the pipeline. There is a Report Card for each of the state’s 115 school districts and one for the state as a whole.

“The racial disparities that persist in our schools are a tough pill to swallow, especially on the eve of a holiday celebrating the legacy of Martin Luther King Jr.. However, we hope the Racial Equity Report Cards can serve as a launching point for community education and discussion,” said Peggy Nicholson, Director of the Youth Justice Project. “They are not meant as an attack on the critically important public institutions that serve our youth, but rather, as a call-to-action for students, parents, advocates, policymakers, and institutional stakeholders to collectively examine the causes of racial inequity in their community and develop solutions that will help young people, especially youth of color, avoid and escape the school-to-prison pipeline.”

Highlights from this year’s report cards include:

Teacher Diversity

This is the third year the organization has released the analyses, but it is the first year the cards have included statistics on teacher diversity. A diverse school staff representative of the student body is one important way to help equalize opportunities for students of color. A recent study revealed that low-income Black students in North Carolina who had at least one Black teacher in elementary school were significantly more likely to graduate high school and consider attending college. Despite this, North Carolina’s teaching force remains disproportionately White. In 2017-18, 79% of the state’s teachers were White, even though only 48% of the state’s student population was White. White teachers are overrepresented in every NC school district when compared to the demographics of students.

According to a 2018 study by the National Bureau of Economic Research, Black students who had just one Black teacher by third grade were 13 percent more likely to enroll in college – and those who had two were 32 percent more likely to enroll in college.

Discipline

Throughout the state during the 2016-17 school year, Black students were 4.3 times more likely than White students to receive a short-term suspension. In seventeen school districts, Black students had an even higher risk (over 4.3 times more likely) of being suspended than their White classmates. While direct comparisons between districts are not always appropriate because of the variations in size and demographics of the district, the findings are nonetheless noteworthy.

In Charlotte-Mecklenburg County Schools, Black students were 7.5 times more likely than White students to receive a short-term suspension.

Lack of Data

“While the limited data we have is certainly troubling, the fact that there is still so much we don’t know raises even more concern,” said Nicholson. “There are many common sense metrics that educators and families deserve access to and that would help in assessing the true extent of this crisis; however, the state does not track and report them. For example, there is no statewide data collection or reporting on interactions between students and school police, even though this is a primary driver of the school-to-prison pipeline.”

At a minimum, the Youth Justice Project would like to see the state, through the Department of Public Instruction, begin tracking and publicly report the following data points:

  • Use of in-school suspension at the school and district level;
  • Out-of-school suspensions disaggregated by offense, grade, and length;
  • Assignments to alternative programs and schools; and,
  • School-based arrests and use of force incidents.

To view Charlotte-Mecklenburg School District’s racial equity report card, visit: http://youthjusticenc.org/wp-content/uploads/2016/08/2018-RERC-Charlotte-Mecklenburg.pdf

A complete list of Racial Equity Report Cards can be viewed on the Youth Justice Project’s website: http://youthjusticenc.org/our-work/racial-equity-report-cards/


The National Bureau of Economic Research study can be viewed here: http://ftp.iza.org/dp10630.pdf

U.S. Supreme Court Will Hear North Carolina and Maryland Partisan Gerrymandering Challenges

Justices have an opportunity this term to ensure fair maps nationwide by striking down Republican and Democratic redistricting plans

 

WASHINGTON – The U.S. Supreme Court announced it will hear arguments in March 2019 in a challenge to North Carolina’s 2016 congressional map, which is one of the most egregious partisan gerrymanders in American history. It will also hear the Maryland challenge, in which Democrats discriminated against Republicans for their party affiliation in its 2011 maps, in March as well. Together, the cases have the potential to reshape future redistricting nationwide by limiting politicians’ ability to discriminate against voters who favor a minority party when those politicians draw electoral districts.

 

The Southern Coalition for Social Justice (SCSJ), Campaign Legal Center (CLC) and University of Chicago Professor Nicholas Stephanopoulos represent the League of Women Voters of North Carolina and 12 individual North Carolina plaintiffs in the case, League of Women Voters of North Carolina v. Rucho.  The Supreme Court will simultaneously hear a companion case, Common Cause v. Rucho, and it will hear the Maryland case, Benisek v. Lamone, this term.

 

“In North Carolina, Republican legislative leaders bragged that they were drawing a plan that advantaged Republicans to the maximum extent possible and discriminated against Democrats.  This kind of outrageous behavior most certainly crosses the line of constitutionality, and if the Supreme Court does not intervene, our democracy will pay the price,” said Allison Riggs, senior voting rights attorney for the SCSJ.

If the Supreme Court rules that the state’s maps are unconstitutional, this victory could curtail the undemocratic practice of partisan gerrymandering nationwide. Last term, CLC’s Paul Smith argued Gill v. Whitford, a challenge to Wisconsin’s gerrymandered Assembly maps. The Supreme Court sent both the North Carolina and Wisconsin cases back to district court with clear instructions.

 

“Voters nationwide are ready for a ruling from the Supreme Court that finally declares that they come first, not self-interested politicians,” said Paul Smith, vice president at CLC. “A supermajority of Americans – across ideological lines – want the Supreme Court to place limits on partisan gerrymandering. By striking down North Carolina and Maryland’s maps, the Supreme Court can send a message to the rest of the country that extreme partisan gerrymandering is unconstitutional, no matter which party does it. If the Supreme Court fails to set limits on this undemocratic practice, we will see a festival of copycat gerrymandering in 2020 the likes of which the country has never seen before.”

“Partisan gerrymandering in North Carolina has become so pervasive that the outcome of many elections is decided before a single vote is cast,” said Janet Hoy, co-president of the League of Women Voters of North Carolina. “We have full hope that the U.S. Supreme Court will rein in this undemocratic practice so that voters can have the fair elections they deserve and know that their vote matters.”

“The congressional districts across North Carolina are nothing less than a successful attempt to rig the system,” said Aaron Sarver, a plaintiff from Asheville, North Carolina. “If members of Congress can tell their Republican colleagues in Raleigh exactly which voters they want to ‘represent’ then we’re getting pretty close to telling people it’s not worth bothering to show up to vote because the election was decided the day the maps were drawn.”

With the case now to be decided this term, North Carolina voters could have fair and legal maps drawn in time to be used in the 2020 elections.

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

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Anita Earls

Statement Regarding the Investiture of Anita Earls to the North Carolina Supreme Court

RALEIGH, N.C. – Anita Earls was sworn in today as the 100th Justice to sit on the North Carolina Supreme Court in an investiture ceremony this afternoon in Raleigh, North Carolina.  Earls, founding Executive Director of the Southern Coalition for Social Justice, was elected to the seat in November.

Kareem Crayton, Interim Executive Director of the Southern Coalition for Social Justice, issued the following statement upon Anita Earls’ investiture:

“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.  Thousands of people across this region are better off today because of the work she has led.  We at SCSJ remain grateful to her for all she has done and will carry on this work as she commences a different chapter in her storied pursuit of justice.  On behalf of SCSJ’s Board, staff and community partners, we heartily congratulate Justice Earls on this remarkable achievement and wish her all the best as she assumes office to work on behalf of all the people of North Carolina.”

Before founding the Southern Coalition for Social Justice, Anita Earls served as a deputy assistant attorney general for civil rights at the U.S. Justice Department during the Clinton administration, a member of the North Carolina State Board of Elections, and professor of law at the University of North Carolina at Chapel Hill, Duke University, and the University of Maryland.

Anita Earls graduated from Williams College and earned her law degree from Yale.

 

 

 

 

 

Statements from SCSJ Regarding Passage of the FIRST STEP Act in Congress

WASHINGTON, D.C. – The U.S. House of Representatives approved the FIRST STEP Act (S. 756) today, one day after the U.S. Senate passed the legislation on a broad bipartisan vote.


The FIRST STEP Act, an acronym that stands for Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, includes provisions that will, among things:

  • ban solitary confinement for juveniles in federal prisons;
  • increase recidivism reduction programs;
  • reduce and restrict enhanced sentencing for prior drug felonies;
  • prohibit, subject to specified conditions, the use of restraints on women in federal facilities who are pregnant or in postpartum recovery;
  • require federal prisons to make tampons and sanitary napkins available free of charge;
  • require that incarcerated individuals be placed in a facility within 500 miles of their residence, helping maintain family connections;
  • require prerelease planning procedures to help people leaving prison to obtain identification, including a Social Security card, driver’s license or other official photo identification, and a birth certificate.

After the passage of the bill, Kareem Crayton, Interim Executive Director of the Southern Coalition for Social Justice, issued the following statement:

“The FIRST STEP Act is appropriately named and should be seen as just that – a first step.  There is more that can be done to shape our criminal justice system to make it more equitable and free from discrimination.  This act deserves to become law and we urge Congress to continue to make changes to our criminal justice system that recognize the value of all of our country’s citizens. We applaud the bi-partisan leadership by the bill’s sponsors, who have shepherded this key legislation in Congress.  

Ricky Watson, co-director of the Youth Justice Project at the Southern Coalition for Social Justice, issued the following statement:

“The FIRST STEP Act should serve as a framework for a better way to treat children across the country in every state prison and local jail, not just children in federal custody. It is painfully clear that solitary confinement causes trauma that only makes it harder for children to reintegrate back into society once they are released. Ultimately, we still need more compassion, thoughtfulness, and community-based alternatives for incarcerated children. Hopefully, this can be achieved with this act and even more meaningful legislation in the near future.

Angaza Laughinghouse, criminal justice staff attorney at the Southern Coalition for Social Justice, issued the following statement:

“There are over 47,000 people throughout the South incarcerated in public and private facilities.  These are real people with families who deserve to be treated with respect and dignity. It is imperative that we continue to find ways to reduce the disproportionate rates of incarceration for people of color in this country.  We are optimistic that this act will be a building block to more significant criminal justice reforms in the future.”

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New North Carolina Voter ID Law Immediately Challenged by Voters

Six voters challenging the state’s new photo ID requirements filed a lawsuit minutes after the regulations became law.  The complaint was filed in Wake County Superior Court along with a motion requesting a preliminary injunction, asking the court to halt the implementation of the law until the case can be heard in court.  State lawmakers overrode Governor Cooper’s veto of S 824, Implementation of Voter ID Constitutional Amendment, on the afternoon of Wednesday, December 19, 2018, as part of a lame-duck legislative session in which several members who lost re-election voted in favor of the override.

The full complaint and the motion for preliminary injunction can be at https://www.southerncoalition.org/voterid/

“The North Carolina Constitution provides numerous and inviolable protections for the fundamental right to vote of all its citizens,” Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice.  “Just because the North Carolina Constitution now authorizes, with exceptions, the presentation of a picture ID when voting does not mean those other longstanding protections can be ignored or violated.”

According to the lawsuit, the new law violates multiple provisions of the North Carolina Constitution by:

  • purposefully discriminating against and disproportionately impacting African-American and American-Indian qualified voters, in violation of the Equal Protection Clause in Article 1, § 19;
  • unduly burdening the fundamental right to vote, in violation of the Equal Protection Clause in Article 1, § 19;
  • creating separate classes of voters, treated different with respect to their access to the fundamental right to vote, in violation of the Equal Protection Clause in Article 1, § 19;
  • imposing a cost on voting, in violation of the Free Elections Clause in Article I, § 10;
  • imposing a property requirement for voting, in violation of the Property Qualifications Clause in Article I, § 11; and,
  • impeding voters’ ability to engage in political expression and speech by casting a ballot, in violation of their Right of Assembly and Petition and Freedom of Speech as afforded by Article I, §§ 12 and 14.

“It is the legislature’s duty to balance competing demands in the State Constitution.  It has failed miserably in its exercise of balancing the new ID constitutional amendment, which explicitly allows for exceptions, with the numerous other state constitutional demands that have been interpreted to aggressively protect the right to vote, ” stated Allison Riggs.  “Any legislative scheme that requires voters to present ID when voting must have fail-safe measures to ensure that not one single eligible voter is disenfranchised.  Our State Constitution demands it.  This legislation does not do that.  It simply replicates a scheme that we know disenfranchised approximately 1,400 voters in the March 2016 primaries.”

The Southern Coalition for Social Justice is representing plaintiffs in the case, along with pro-bono counsel from the New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison.  The Southern Coalition for Social Justice also represented plaintiffs who successfully challenged the state’s 2013 monster voter suppression law and was ultimately struck down by the U.S Court of Appeals for the Fourth Circuit.

Youth Justice Project: Federal Commission on School Safety Recommends Scrapping Anti-Discrimination Guidance Implemented During Obama Administration

WASHINGTON, D.C. – The U.S. Department of Education’s (DOE) Federal Commission on School Safety has released its final report, which includes a recommendation that the DOE and U.S. Department of Justice (DOJ) rescind guidance issued in 2014 aimed at ensuring educational agencies comply with federal obligations to administer student discipline without discriminating based on race, color, or national origin.  The guidance:

  • offers direction to school districts on the best ways to avoid discriminatory discipline practices;
  • explains the Office for Civil Rights’ Title VI and DOJ’s Title IV and Title VI investigative process, including the existing legal framework, evidence considered, and the types of remedies sought if violations are found;
  • provides hypothetical examples of school discipline policies/practices that may violate civil rights laws; and
  • equips school officials with an array of tools to support positive student behavior – thereby providing a range of options to prevent and address misconduct – that will both promote safety and avoid the use of discipline policies that are discriminatory or inappropriate.

Without the regulations on the books, schools would still not be allowed to discriminate against students based on race, color, or national origin; however, rescinding the guidance would remove valuable information schools use to comply with federal law. Students of color and students with disabilities are the groups most likely to experience the negative consequences of discriminatory discipline practices. In 2016-17, Black students in North Carolina were over four times as likely to receive a short-term suspension as their White peers.

“We know that students of color and students with disabilities face well-documented and continuing disproportionate levels of school exclusion through suspensions, expulsions, and informal removals,” said Peggy Nicholson, co-director of the Youth Justice Project at the Southern Coalition for Social Justice. “Withdrawing the federal guidance as a resource would set schools up to fail students and fall back into practices that discriminate against students based on their race.”

The Youth Justice Project has filed several Title VI complaints with the U.S. Department of Education’s Office for Civil Rights (OCR) over the past few years alleging systemic discrimination against students of color in school discipline practices.  A complaint filed in Wake County (NC) in 2010 was recently resolved after the district and OCR entered a resolution agreement that requires the school system to make significant changes to its discipline policies and practices. A complaint filed in Lee County (FL) was settled earlier this year after the district agreed to revise its discipline practices and policies to address racial disproportionality.

“There is simply no good reason to scrap guidance that can help schools avoid discriminating against students.  There are outstanding complaints across the country that demonstrate the need for addressing racially discriminatory discipline in schools,” said Nicholson.

The Commission’s report included various other recommendations relating to school safety (click for Commission’s website). Some of these recommendations, such as urging states to provide resources to help schools create positive school climates and increasing mental health supports, are evidence-based and likely to improve overall safety. However, other recommendations in the report may actually worsen school safety and have unintended negative impacts on students, including the suggestion that school districts consider arming school staff and pour their limited resources into expensive physical security measures.

The Commission’s membership includes DOE Secretary Betsy DeVos, Secretary of Health and Human Services Alex Azar, and Secretary of Homeland Security Kirstjen Nielsen. Former U.S. Attorney General Jeff Sessions was the fourth member of the Commission until he resigned from his office.

“Rescinding the school discipline guidance would send multiple messages.  For schools that want help in ending discriminatory practices, rescission would tell them to look somewhere else and that they are on their own.  For students, taking away this guidance would send the message that the federal government may not be there to help if they are discriminated against.  This would be a big loss for students, families, and schools across the country,” said Ricky Watson, co-director of the Youth Justice Project.  “We have to ask who is helped by rolling back these guidelines, and the obvious answer is no one.  This doesn’t help kids.  This doesn’t help schools.  This doesn’t help our communities.  We need community groups and advocacy groups to step up now more than ever to be the advocates that these children need.”

The 2014 guidance for complying with non-discrimination laws can be found at http://bit.ly/2014Guidance

The Commision’s final report can be found at https://www2.ed.gov/documents/school-safety/school-safety-report.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

 

 

House Districts in Wake County Found Unconstitutional

Districts ordered to be redrawn in the next regular legislative session for use in 2020

 

 

RALEIGH – A three-judge state court panel today issued a unanimous ruling declaring four state House Districts in Wake County to be unconstitutional.  The panel agreed that the unnecessary redrawing of state House Districts 36, 37, 40, and 41 violated the North Carolina Constitution’s prohibition on mid-decade redistricting. The order instructs the legislature to remedy the unconstitutional districts in their next regular session for use in the 2020 general election.

 

The Southern Coalition for Social Justice represented plaintiffs in NC NAACP v. Lewis.  Plaintiffs included NC NAACP,  League of Women Voters of NC, Democracy NC, A. Philip Randolph Institute of NC, and four individual Wake County voters.

 

The three-judge panels’ order can be found at http://bit.ly/NAACPvLewisOrder

 

Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice and attorney for the plaintiffs in the case, issued the following statement after the court’s ruling:

 

“Once again, a court has rebuked the North Carolina General Assembly, finding the legislature’s repeated acts of political gamesmanship in the redistricting process to be unconstitutional. For almost this entire decade, legislative leaders have done everything they can to avoid fair elections and accountability to the voters.  This decision brings us closer to the day that, for the first time this decade, the voice of the voters and not politicians’ illegal manipulations will determine the outcome of elections.”

 

 

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Video Series Highlights Voters Who Could be Impacted by Voter ID Requirements

 

DURHAM, N.C. – Five videos released today by the Southern Coalition for Social Justice are the first installment of a campaign that’s aimed at educating voters about who may be disenfranchised if a state constitutional amendment requiring photo identification to vote is approved in this November’s election.  The “What’s at Stake” video series highlights the stories of North Carolinians who faced hurdles during the 2016 primary election when photo ID was required.  Some were either turned away for lack of the ID or forced to cast a provisional ballot that was never counted. Others would be unable to vote in future elections if state-issued photo identification is required.

 

The videos showing what’s at stake are available at scsj.org/videos

 

“We know that at well over 1,000 people were denied their right to vote in the 2016 primary because of the photo ID requirement,” said Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice. “Since the legislature has not yet made it known which ID’s they will permit in future elections, voters are being asked to give lawmakers a blank check on determining who would be allowed to vote in future elections and who would be disenfranchised. North Carolinians deserve better than that.”

 

The Southern Coalition for Social Justice represented plaintiffs who successfully challenged the voter suppression law passed by the General Assembly in 2013 that included a photo ID requirement.  The organization’s campaign to educate voters about the constitutional amendment on this year’s ballot includes personal stories from:

 

  • Daniel Smith, a Concord resident whose vote was not counted in 2016 because he only had a temporary license when voting in the 2016 primary while he was waiting for his renewed license to be mailed to him;

 

  • Jabari Holmes, a 42-year-old from Wendell who has severe cerebral palsy who has had difficulty obtaining a photo ID and would not be allowed to vote in future elections if photo ID is required;

 

  • Mina Ezikpe, who registered to vote while a student at Duke University and was turned away from the polls without casting a ballot in 2016 for lacking North Carolina issued identification;

 

  • Paul Kearney, a Warrenton resident forced to cast a provisional ballot that was not counted in the 2016 primary for not having his identification with him despite knowing everyone who was working in the polling place that day; and,

 

  • Jaden Peay, an out-of-state sophomore at North Carolina Central University who volunteers to register other students to vote but only has his South Carolina driver’s license and school identification card, making it unlikely that he would be able to vote in future elections.

 

The Southern Coalition will add more stories to the project between now and Election Day.  The videos will be shown at community meetings and town hall discussions about the amendments and will be promoted through sponsored social media posts to inform targeted groups of voters.

 

“Regardless of the rules put in place to implement a photo identification requirement, the result is going to be that some eligible voters are going to be denied their right to participate in our democracy,” added Allison Riggs. “We hope that sharing these stories will help voters see this proposal for what it really is, the newest chapter in a long line of voter suppression efforts.”

 

The videos and individual stories can be found at scsj.org/videos.

Civil Rights Organizations Urge U.S. Attorney General Jeff Session to Withdraw Subpoenas for Massive Amount of Voter Records and Information

DURHAM, N.C. – A coalition of national, regional, and state-based civil rights organizations has sent a letter to U.S. Attorney General Jeff Sessions urging the withdrawal of recently issued subpoenas in North Carolina that sought millions of voter records in the state.  The letter makes it clear that the subpoenas:

  • Target people of color, immigrants, and low-income communities in the state in a manner that would intimidate most reasonable people;
  • Should not be used as part of a fishing expedition;
  • Seek voter information that must remain protected according to well-established law; and,
  • Have already interfered with the regular preparation for upcoming elections.

“It’s clear that these subpoenas are a fishing expedition that aims to intimidate voters of color in North Carolina,” stated Kareem Crayton, Interim Executive Director of the Southern Coalition for Social Justice. “Americans should have the peace of mind to know that when they cast their ballot, it is not going to examined by government officials in a way that discloses personally identifying information and how they voted.  This effort not only undermines the privacy interests of voters, it also eliminates a crucial element of every free and fair election — the secrecy of the ballot.”

 

Organizations that signed onto the letter include:

  • Southern Coalition for Social Justice
  • Democracy North Carolina
  • North Carolina State Conference of the NAACP
  • North Carolina Justice Center
  • Common Cause North Carolina
  • NAACP Legal Defense & Educational Fund, Inc.
  • LatinoJustice PRLDEF
  • NALEO Educational Fund
  • Demos
  • American Civil Liberties Union (ACLU)

 

Noteworthy excerpts from the letter:

  • “We are deeply concerned that these excessive discovery demands are intended to amplify the incredibly few examples of voting irregularities that actually exist within the voting process and to falsely manufacture a perception that massive voting fraud has occurred in this State. We believe that any such ‘evidence’ is intended to be used as a basis for justifying future voter suppression efforts.” (1)
  • “The extremely broad and unprecedented subpoenas extend far beyond the scope of any legitimate law enforcement objective and threaten voters’ constitutional right to cast a ballot free from fear and intimidation as well as their expectation that their personally identifiable information and their voting preferences will remain private in accordance with the law.” (1)
  • “Indeed, neither an informally negotiated revision of these subpoenas nor formal legal action by the State of North Carolina in fighting the subpoenas would be adequate to address the lasting damage your actions would pose to a free and fair election in this state.” (1)
  • “Given the State’s recent voting rights history and the lived experiences of voters of color, these voters will surely find the fact that the ICE Subpoenas target their region, while offering no explanation for doing so, to be both ominous and intimidating.” (2)
  • “Nothing about the language that an individual speaks or uses to fill out forms creates any reason to believe that a crime has been committed, voting related or otherwise, and any suggestion to the contrary is discriminatory and intimidating.” (2)
  • “The ICE Subpoenas would not only revive the threat of government-sanctioned voter intimidation, but they would ironically destroy what has been an essential protection against election fraud. For these reasons, subpoenaing the voting records of millions of North Carolinians is unreasonable and oppressive, and the demand for cast ballots must be withdrawn in its entirety.” (3)

 

The full text of the letter is available below and can be viewed as a PDF at http://bit.ly/LetterToDOJ

Full text of the letter:

September 26, 2018,

 

Attorney General Jeff Sessions

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

 

Deputy and Acting Director Ron Vitiello

Immigration and Customs Enforcement

500 12th St., SW

Washington, D.C. 20536

Dear Attorney General Sessions and Director Vitiello,

On behalf of the undersigned organizations, we write to strongly request that your agencies immediately cease efforts to subpoena millions of North Carolina voter records in what we believe is an unjustified and likely unlawful fishing expedition. We are deeply concerned that these excessive discovery demands are intended to amplify the incredibly few examples of voting irregularities that actually exist within the voting process and to falsely manufacture a perception that massive voting fraud has occurred in this State. We believe that any such “evidence” is intended to be used as a basis for justifying future voter suppression efforts.

 

In North Carolina recently, representatives of your agencies, only weeks before a major election, issued at least 46 subpoenas seeking millions of state voters’ records. We strongly urge you to immediately withdraw the federal subpoenas which were issued on August 31, 2018, by Assistant U.S. Attorney Sebastian Kielmanovich for the Eastern District of North Carolina and directed to the North Carolina State Board of Elections and Ethics Enforcement, the County Boards of Elections in all 44 counties in the North Carolina’s Eastern District, and the North Carolina Division of Motor Vehicles on behalf of Immigration and Customs Enforcement (hereinafter, “ICE Subpoenas”). The extremely broad and unprecedented subpoenas extend far beyond the scope of any legitimate law enforcement objective and threaten voters’ constitutional right to cast a ballot free from fear and intimidation as well as their expectation that their personally identifiable information (hereinafter, “PII”) and their voting preferences will remain private in accordance with the law. Further, given the massive redactions necessary to avoid complete disregard for voters’ rights and the law, responding to these ICE Subpoenas would interfere with the duties of North Carolina’s election officials at any point in any election cycle. The requested ICE Subpoenas will seriously hinder North Carolina election officials’ ability to provide free and fair elections and follow through with the state’s mandate to enhance election security against foreign interference. The apparent concession by the U.S. Attorney’s Office, which extended the deadline for responses to the subpoenas until January, does not resolve the underlying issue with the legality or propriety of the subpoenas.  Indeed, neither an informally negotiated revision of these subpoenas nor formal legal action by the State of North Carolina in fighting the subpoenas would be adequate to address the lasting damage your actions would pose to a free and fair election in this state.

 

The ICE Subpoenas became public knowledge on September 4 after an email was sent to all members of the local boards and redacted subpoena language was posted on Twitter. The subpoenas, which were directed to 44 of North Carolina’s eastern counties, seek “all poll books, e-poll books, voting records, and/or voter authorization documents, executed official ballots that were submitted to, filed by, received by, and/or maintained by” the local board of elections “from August 30, 2013 to August 30, 2018.” The subpoenas directed to the State Board of Elections and NC DMV demand documents including all voter registration, early voting, provisional voting, and absentee ballot request forms over an even longer period—from January 1, 2010 through August 30, 2018. These blanket demands for information on individual voters would have required state election officials to compile more than 15 million voting records, within 60 days before a statewide election. Delaying the compliance deadline for these subpoenas until after the November 2018 election does not ease the burden on North Carolina election officials to redact all of the PII that they would be required to redact under state law, nor does it ensure that the redaction of this data that would not connect the individual voters to their official executed ballots, a problem that would exist with every early voting ballot, absentee ballot, or provisional ballot cast in the state.

 

The Subpoenas Target People of Color, Immigrants and Low Income Communities

 

The Eastern District of North Carolina, the jurisdiction of the federal judiciary system at issue here, is comprised of 44 counties. While the region includes only 39% of North Carolina’s voters, nearly 70% of North Carolina’s Native American voters and 46% of its Black voters live in this district. Additionally, of these 44 counties, the majority experience a poverty rate between 15 and 30%, making it the most concentrated region of low-income communities in the state. The region’s communities of color have experienced a long history of voter intimidation and disenfranchisement, including the ninety-year period during which official voting discrimination and physical violence prevented any person of color from being elected as a part of North Carolina’s congressional delegation. Given the State’s recent voting rights history and the lived experiences of voters of color, these voters will surely find the fact that the ICE Subpoenas target their region, while offering no explanation for doing so, to be both ominous and intimidating.

The subpoena directed toward the North Carolina DMV is even more concerning in this regard.  It specifically seeks information on individuals who filled out forms at the DMV in a language other than English.  Nothing about the language that an individual speaks or uses to fill out forms creates any reason to believe that a crime has been committed, voting related or otherwise, and any suggestion to the contrary is discriminatory and intimidating.

 

The Subpoenas Seek Voter Information that Must Remain Protected

 

The ill-considered ICE Subpoenas seek millions of cast ballots, along with absentee and provisional voter documents that would allow ICE to penetrate the sacrosanct veil of ballot secrecy and reveal many voters’ individual choices in past elections. In a September 6, 2018 letter to the General Counsel of the North Carolina State Board of Elections and Ethics Enforcement, Assistant U.S. Attorney Keilmanovich tellingly admitted that the obtaining the records of votes cast was “not relevant to our inquiry.” He nonetheless continued to demand that the documents be produced, with redactions. In other words, the purported compromise position following the initial outrageous demand was for state officials to devote time and resources to making millions of redactions in service to an ICE demand for information that it never had the authority to make and, apparently, never wanted in the first place.  It is the duty of your office and you, as chief law enforcement officer of the Federal Government, to ensure that subordinate agents are not acting beyond the scope of their authority or in a manner that would interfere with the administration of elections and have an intimidating effect on voters.

 

To be clear, ballot secrecy—the right of citizens to cast a secret ballot, without fear of retaliation—came about because of a “persistent battle against two evils: voter intimidation and election fraud.”Burson v. Freeman, 504 U.S. 191, 206 (1992). The ICE Subpoenas would not only revive the threat of government-sanctioned voter intimidation, but they would ironically destroy what has been an essential protection against election fraud. For these reasons, subpoenaing the voting records of millions of North Carolinians is unreasonable and oppressive, and the demand for cast ballots must be withdrawn in its entirety.

 

The Subpoenas Have Already Interfered with Upcoming Elections

 

As stated above, the amount and types of data demanded by the ICE Subpoenas is unprecedented and massive. The Subpoenas demand detailed information about voting records that include millions of cast ballots that would provide sufficient information to allow ICE to identify not only the choices made on each ballot, but the identity of the specific individual who cast it.  This fact alone should chill any member of a democratic society.

 

North Carolina election officials have already explained, in public meeting, that these incredibly sweeping subpoenas have required an overwhelming amount of their time during a period when their heightened attention is normally required to ensure that the upcoming election is conducted smoothly and securely.  Indeed, because of recent state legislative decisions relating to the content and form of the November ballots that have delayed their development and production, elections officials are already working on a significantly truncated calendar as they seek to manage the fast approaching statewide election. These subpoenas are not only unnecessary and unjustified, but they also have already harmed preparations for the upcoming election and voters’ confidence in it.  As a result of these Subpoenas, thousands of North Carolinians have expressed their concern about having their private voting records and PII turned over to the federal government without reason.  They have not only called upon the State Board of Elections to reject these requests, but are also demanding that U.S. Attorney Robert Higdon withdraw the originally issued subpoenas.

 

In the name of public confidence in the legitimacy of your agencies and the U.S. Constitution’s commitment to protect against voter intimidation and election interference, we strongly request that you quickly and fully repudiate the actions of the U.S. Attorney for the Eastern District of North Carolina, taken on behalf of ICE, and  that these unprecedented subpoenas be withdrawn immediately.

 

The U.S. Attorney Should Not Use Grand Jury Proceedings as Fishing Expeditions

 

The aforementioned background and peculiar timing of this action strongly suggest that it is a cynical ploy to seek support for the same specious voter fraud narrative that was used to justify the creation of the defunct Pence-Kobach Commission. To many observers, there seems to be more than a passing similarity between the discredited agenda of the disbanded Commission and the unprecedented and broad interest of the U.S. Attorney for the Eastern District of North Carolina into the content of state voting records

 

The review of the requested millions of documents in search of perhaps a handful of individual technical violations of voting laws would also undoubtedly entail a massive commitment of federal resources that might otherwise be used to investigate and prosecute crimes that actually pose a threat to the people of North Carolina. Neither your office nor the U.S. Attorney’s Office has made any showing in the public record to justify the scope of these subpoenas, which seek information on millions of voters, nor does it justify the need for an indiscriminate investigation of every vote cast during the designated time period. In the North Carolina State Board of Elections’ Post-2016 Election Audit Report, the board rejected the proposition that participation by ineligible voters was rampant in North Carolina; instead it concluded that in the very few instances where voting irregularities occur, “[m]ost incidents are isolated and uncoordinated, and detecting technical violations does not always prove purposefully unlawful conduct.”  Your agencies have a duty and a responsibility to properly use the power of the federal grand jury system, and to not abuse that power in the process.

 

We the undersigned request that the U.S. Attorney’s Office and ICE immediately instruct their agents to withdraw these subpoenas.

 

If you have any questions, please feel free to contact Allison Riggs atallisonriggs@southerncoalition.org or 919-323-3909.

 

Sincerely,

 

The Southern Coalition for Social Justice

Democracy North Carolina

North Carolina State Conference of the NAACP

North Carolina Justice Center

Common Cause North Carolina

NAACP Legal Defense and Education Fund

LatinoJustice PRLDEF

NALEO Education Fund

Demos

American Civil Liberties Union (ACLU)

 

Cc: Robert J. Higdon, Jr., U.S. Attorney for the E.D.N.C