This training will give citizens the tools and skills they need to monitor traffic checkpoints in the Triangle for evidence of racial profiling. Location: 103 Bingham Hall – UNC Chapel Hill Date: 2009-03-21
You can now take the Create the Change Community Survey online by clicking here!
Orange County’s reputation as a welcoming place for immigrants, documented or undocumented, may be dented by the sheriff department’s participation in the federal “Secure Communities” program.
At issue is whether Secure Communities significantly differs from the controversial federal 287(g) program.
The Orange County Board of Commissioners last night asked Sheriff Lindy Pendergrass to explain the county’s participation, beginning this month, in Secure Communities. The pilot federal project grants the U.S. Department of Homeland Security and the Federal Bureau of Investigation automatic access to the personal information of people arrested in Orange County.
The Commission heard Pendergrass’ report, but took no action.
The program is intended to help federal authorities locate illegal immigrants who have also been charged with crimes unrelated to immigration, including traffic violations, Pendergrass said.
“The system is simply that, when you fingerprint someone, it goes through the system, and we get a correct identification of the individual,” Pendergrass said, referring to the DHS and FBI databases. “The system does go through the right side of Homeland Security, but we do not—and they do not tell us—if someone we have fingerprinted is someone who is an alien.”
Pendergrass insisted the program did not violate Orange County’s 2007 resolution opposing participation in the federal 287(g) program, which marshals local law enforcement agencies to arrest and detain undocumented immigrants.
“I never know if somebody is wanted by immigration, because they don’t tell me, and we have no way of knowing,” he said. “We’re not like Alamance County, and other counties, where they enter into an agreement—and they hold in the jail illegal aliens.”
Instead, Pendergrass said, “If they call us and tell us, ‘You have Joe Blow, and he’s an alien,’ that’s their business, and we don’t get involved. If he’s there on charges, he has to have all his charges resolved in Orange before immigration can touch him. It’s just a simple thing people have misunderstood.”
Orange County Attorney Geoff Gledhill said at the meeting that he did not think Pendergrass’ participation in the program violates the county resolution, but noted that Secure Communities relates to “certain provisions of section 287(g).”
However, the difference between the two programs is slim, said Marty Rosenbluth, staff attorney at the Southern Coalition for Justice. He told the Commissioners that Secure Communities “doesn’t just violate the spirit and intent of this resolution, but it also violates the color of the law.”
“The effect of joining Secure Communities is to give ICE unfettered access to immigration information about members of the Orange County community,” he wrote in a letter to the board. “Once ICE has matched the fingerprints of a detainee in Orange County jail, it is up to ICE, not the sheriff, to decide whether or not ICE will take action against the person,” the letter went on. According to ICE, once a person is identified through the Secure Communities program, “[r]esponses may include such actions as: placing the alien immediately in ICE custody to avoid release; conducting personal interviews to gather additional information from the alien; placing detainers; and issuing charging documents.”
Immigration and Customs Enforcement is a division of the Department of Homeland Security.
While Pendergrass distinguished Orange County’s immigration program from 287(g) participating counties such as Alamance, Wake and Mecklenburg, he said that soon, all of North Carolina would be reporting fingerprinting data to federal immigration authorities.
“By the end of the year, and maybe the first few months of 2010, the whole system in the state of North Carolina will be just like ours,” he said.
Matt Saldaña, msaldana (at) indyweek (dot) com
Quietly but surely, rural communities on the edges of Hampton Roads are gearing up for what could be a fateful fight.
In Surry County, one woman is compiling lists of historic and prehistoric sites; another is analyzing demographic data.
Residents of Gates County, N.C., are sketching their family trees, gathering old photographs and accumulating property deeds and land records.
And Tony Clark and Roland Evans are putting the finishing touches on an 18-minute documentary about life in Virginia’s Southampton, Sussex and Surry counties.
The efforts have a common goal: build a case against the Navy’s plan to construct a jet landing strip in the midst of a rural community.
The outlying landing field, or OLF, primarily would serve fighter pilots based at Oceana Naval Air Station in Virginia Beach.
A year ago, after abandoning plans to build a practice landing strip in Washington County, N.C., the Navy announced it would study five new potential sites for the controversial $200 million project.
This summer, the Navy will release its preliminary environmental analysis of the sites – three in Virginia; two in northeastern North Carolina – and might designate one or more of the locations as front-runners.
But opponents aren’t waiting until then. Emboldened by Washington County’s success in heading off the Navy, they are embarking on public relations campaigns, undertaking their own studies of possible impacts and putting politicians on notice about their opposition of the landing strip.
Navy brass and Virginia officials who want to protect Oceana’s status as the East Coast’s master jet base are frustrated by the early and intense opposition.
Dialogue has ground to a halt. Distrust abounds. Both sides say they’re open to real conversation but accuse the other of being evasive or sticking to a familiar script.
Rear Adm. David Anderson, vice commander of the Navy’s Fleet Forces Command, heads the Navy’s effort to have a landing field operational by 2013.
Not wanting to repeat the service’s mistakes last time, Anderson pledged last year that the Navy would be more flexible about acquiring the 3,000-acre “core” of the field. He announced that residents living in the highest noise zones could stay in their homes if they desired. He said the Navy would work with local governments to spur economic development compatible with the field.
None of that has seemed to sway the landowners and residents of the affected communities.
Opponents not only question the Navy’s need for the landing field, but some doubt the future of Oceana itself and assert that its days are numbered.
That galls Anderson, a fighter pilot by training.
“It’s a credibility issue,” he said. “And I hate to say it, but there are certain areas right now where, because I’m wearing a uniform, people do not believe me. In 31 years of being in the Navy, I never thought I would see that.”
Pilots of F/A-18 Hornets and Super Hornet s now prepare for nighttime carrier landings at Oceana and Fentress Auxiliary Landing Field in Chesapeake, both of which have been encircled by suburban development. The Navy contends that it needs an additional landing strip, in a more rural setting, to relieve the pressure on Oceana and Fentress, especially during summer and when multiple aircraft carriers are preparing to deploy.
Anderson cites as an example the Norfolk-based squadron that trains E2C Hawkeye pilots. Five times a year, the squadron heads to Jacksonville, Fla., for its field carrier landing practice because Fentress is too busy. The cost to the Navy: $1.8 million.
Opponents claim that unchecked development around Oceana and Fentress created the problem and accuse the Navy of trying to export jet noise to the countryside in order to spare the ears of city residents. They cite the 2005 findings of a federally appointed base closing commission that criticized “encroachment” around Oceana.
If Oceana is in jeopardy, or if its limitations mean it won’t be able to host the next-generation fighter jet, they argue, the Navy shouldn’t spend up to $200 million on a landing field that could soon become obsolete.
The debate isn’t about encroachment, Anderson says, and even if Oceana and Fentress were surrounded by desert, the service would need an outlying landing field. The Navy “is out of capacity to train pilots” on the East Coast, he said.
“That’s the urgency that we’re dealing with right now,” Anderson said. For the future, we don’t see that going away, but if it does, if it changes, we’re willing to try to structure this now so that it’s advantageous for the county and the military down the road.”
One possibility he mentioned: build a facility that in 50 or 60 years could become a county airport.
Some of those Anderson is trying to persuade already are familiar with the sound of Navy jets in training.
Cyndi Raiford, a certified therapeutic riding instructor, used to work at Equi-kids, a program that teaches physically and mentally disabled clients to ride horses at a facility that is a few hundred yards from Oceana.
Ten years ago, Raiford and her husband bought 65 acres in Southampton County. They lease some of the land to Graz’n Acres, a therapeutic riding program that serves 75 children with autism or other disabilities. Raiford serves as its executive director.
The property is within a few miles of the Navy’s Dory site.
Raiford doesn’t think supersonic jets, horses and autistic children are a good mix. Many autistic youths suffer from auditory defensiveness, Raiford said. Even the hum of fluorescent lights in the barn can bother them.
“All of our students have difficulty concentrating and staying on task. You add noise to the mix, and it makes it that much harder,” Raiford said.
At Equi-kids, her lessons would come to a halt when Navy jets passed overhead.
“It’s really going to compromise our ability out here to the point where the center would probably have to consider relocating, if that site goes through,” Raiford said. “I guess what people really need to understand is there are such limited services for people with disabilities, especially locally. There aren’t that many opportunities for most of these students.”
Raiford’s story is one of several highlighted in a new video produced by Virginians Against the Outlying Landing Field. Another excerpt features a Surry County family that farms land passed down for more than 100 years.
A rough cut of the film was shown in early February at a series of community meetings in Surry, Sussex and Southampton counties.
Tony Clark, chairman of the group, has bigger aspirations for the film.
“From ‘Oprah’ to ’60 Minutes,’ they’re all going to get a copy,” Clark told about 150 people at Surry High School for an opposition meeting.
Anita Earls represents Citizens Against OLF, a group fighting to keep the landing field out of Gates County. She’s also executive director of the Southern Coalition for Social Justice.
Under her direction, residents are compiling information about their long-standing connection to the land, whether through farming or fishing or hunting, as well as the ties that bind them together.
The effort involves everything from gathering census data to analyzing the community’s social networks, which could be disrupted if families move away from the field.
“To what extent are people reliant on next-door neighbors to take them to the doctor?” Earls asked. “It’s not a given. It’s not something that exists everywhere, or to the same degree in all places.”
A group of 10 students from the environmental law and policy clinic at Duke University’s law school is assessing potential environmental impacts of a landing field in Gates County. The students are compiling a “shadow environmental impact statement” to compare with the document the Navy plans to publish this summer.
Environmental issues – specifically, the impact jet maneuvers would have on waterfowl at a nearby national wildlife refuge – helped doom the Washington County site. Opponents successfully sued the Navy for breaching the National Environmental Policy Act, or NEPA.
Earls thinks another bit of federal law could prove more important this round: Title 6 of the Civil Rights Act of 1964, which says federal money can’t be used to disproportionately impact a minority community in a negative way.
“Particularly in Gates County, that may be a real issue,” Earls said. “In some ways, that has more teeth than NEPA.”
Anderson knows he can’t personally answer every criticism from community members. But he insists he’s committed to dialogue with residents who might be directly affected by a landing field.
The admiral said one woman whose home is within the high-noise contours of a Virginia site contacted the Navy last summer to learn more about the possible impact.
He arranged for a group of eight of her neighbors and family members to spend the day at Oceana. She talked to pilots, watched them practice in a simulator and saw jet-landing practice up close at Fentress.
The Navy then drove her about two miles away for an idea of what the noise level would be at her home.
She later sent a note, he said, thanking him for his hospitality. She said she understood that the Navy does need a landing field – but she still didn’t want it in her community.
To Anderson, that was progress. She wasn’t saying that the Navy didn’t need the field, or was wasting money, or had ulterior motives.
“It was ‘No, I understand now, and I do believe you, but still, everything said and done, I’d prefer not to have it in my backyard,’ ” Anderson said. “And that’s about the best I think we can hope for.”
Kate Wiltrout, (757) 446-2629, firstname.lastname@example.org
An amazing 70% of Black Americans lack basic access to
broadband internet. This digital divide means that Black folks are
disproportionately excluded from opportunities to build knowledge,
wealth, and community in the 21st century.
On Saturday March 7th, our allies in the InternetforEveryone.org
initiative are convening a special town hall meeting in Durham. The
goal is to hold the Obama administration to their pledge to create true
broadband in every community in America. Your discussions will shape a
national plan to achieve a more open, affordable and fast Internet for
This event is free, but only 250 people can participate. Click here to reserve your seat today:
WHAT: InternetforEveryone.org town hall meeting
WHEN: Saturday, March 7, 2009, 11:00 a.m. to 4:00p.m.
WHERE: Durham Marriott Convention Center Grand Ballroom
201 Foster Street Durham, N.C. 27701
The new leadership in Washington needs to know that universal access
to a fast, affordable and open Internet is essential to our survival as
a nation. It’s urgent that we begin this conversation right now.
Only 30% of African-American homes have subscribed to high-speed
internet, compared with 55% of White households. Millions of Americans
still stand on the wrong side of the digital divide. And the damages —
economic, social and political — are hurting us all. Getting everyone
connected would translate into greater participation in our democracy,
millions of new jobs and hundreds of billions of dollars in increased
economic activity for the United States.
We need your help and commitment to get this conversation started.
This weekend’s town hall meeting will include roundtable and group
discussions and inspiring speakers. As a member of ColorOfChange.org,
you bring a critical understanding of the power of the internet to
improve the lives of Black folks and our allies. We encourage you to
attend to make sure that our concerns are represented in this important
Click here to RSVP: http://www.colorofchange.org/freepress-nc
The Great Human Race is a fundraiser for all Triangle area nonprofits. Hosted by the Volunteer Center of Durham, the race is in two parts: a 5K competitive run/walk and a 5K non-competitive walk for nonprofits and their supporters.
For more information visit http://www.greathumanrace.org.
Sidberry Family, New Hanover County File No. 03 SP 0726
Two of 19 Sidberry heirs filed a partition action relating to
property that had been in their family since 1871. The property
consisted of 8.8 acres in Wilmington, New Hanover County near Market
Street. It was described as “virtually undeveloped land in an area that
has been developed for both commercial and residential purposes” in the
pleadings. A 1911 will devised the property to the Sidberry and the
Wallace children. However, the Wallace children have not been heard of
since 1911. Nevertheless, through the partition action the property was
sold for $495,000 and $254,652.47 was placed in a trust account with
the clerk of court for the unknown heirs of the Wallace children.
Before the remaining funds were distributed among the Sidberry heirs,
who have been taking care of the property for the last 90 years,
$21,546 was given to the attorneys, $3,000 to the commissioner, and
$49,500 for real estate commission. The Sidberrys originally sought to
clarify that one of them could place a trailer on the property. Today
they believe they have been dispossessed of their rightful inheritance
and have retained counsel to seek to recover the amount placed in trust
for the unknown heirs.
Partitions come in two forms, partition in-kind or a partition sale. A partition in-kind physically divides the property among owners. The law in most states provides that this method of partition is preferred. North Carolina’s statutes, for example, states that the court shall order the sale of property only where it finds by preponderance of the evidence that an actual physical partition cannot be made without substantial injury to any interested party. N.C.G.S. 46-22(a) (emphasis added). Substantial injury is further defined as, “the fair market value of each share in an in-kind partition would be materially less than the share of each cotenant in the money equivalent …obtained from the sale of the whole, and if an in-kind division would result in material impairment of the cotenant’s rights.” N.C.G.S. 46-22(b). In practice, however, partition in-kind appears less favored by judges.
The quicker partition sale, which sends the property to the auction block, allows ownership to vest in the highest bidder. Partition sales are thought to be one of the primary causes of involuntary black land loss in recent times. The reason is that those who can afford to purchase property on the open market are more often developers with deep pockets instead of cash poor families. Individuals purchasing heirs’ property off the auction block can pay more cash for the property; but, it is those whose heritage is tied to the lands who attach the deepest value. Partition sales separate families from their heritage and their homes. If heirs’ property is purchased by an outside party for development, those tenants living on the land are displaced. At this point, heirs’ property intersects with issues of fair and affordable housing. Families, generally having limited income, may find themselves without a home and in need of affordable housing.
Partition sales can have devastating effects on heirs’ property and fair housing. It is important, therefore, that heirs’ property be identified. If those persons with an ownership interest can be identified, educated, and guided through the problems associated with heirs’ property, their heritage may be secured and ramifications effecting fair housing avoided. For these reasons the Southern Coalition for Social Justice, beginning in June 2008, conducted research to determine the extent to which heirs’ property, partition sales, and black land loss is occurring in Orange County, North Carolina.
Freeman Beach, LLC v. Freeman Heirs, New Hanover County File No. 08 SP 1038
In the 20th century, Freeman Beach was well‐known as the beach,
across from Seabreeze, where African Americans could enjoy the ocean
front. Present‐day Freeman family members have many memories of their
ancestors fishing from the beach and enjoying the natural beauty of the
area. The City of Carolina Beach has converted 143 acres of the
ocean‐front beach to a Park known as Freeman Park.
In dispute in this action are approximately 180 acres of undeveloped
waterfront property at the northern end of Carolina Beach. The original
owner of the land was a man named Alexander Freeman. He is remembered
today as a notable free black man during slavery times and an
incredibly brilliant entrepreneur‐agriculturist. Unlike many of his
era, Alexander Freeman created a Will in 1854. Alexander’s Will left
the 185 acres he owned to his son, Robert Bruce Freeman. Upon
Alexander’s death, which is believed to be sometime around the beginning or during
the Civil War, Robert Bruce Freeman became the owner in fee simple at
the approximate age of 24. During his life, Robert Bruce Freeman took
two wives, Catherine Ann Davis and Lena Swain. In total, he fathered
possibly 19 or 20 children between the two marriages. When Robert later
died intestate in 1902, the property was divided between all of his
children and his second wife.
The partition action is filed by a developer, who claims to own
approximately 72% interest in the land through what appears to have
been a judgment on a defaulted loan in the 1940’s by some of Robert
Freeman’s heirs, and through very recent purchases of other heirs’
interests. The remaining family members are looking for a way to
preserve something of their heritage and keep some portion of the land
The clerk appointed a guardian selected by the Petitioner, to
represent the unknown heirs as well as known heirs, of Robert Bruce
287g and Secure Communites are programs of the Immigration and Customs Enforcement Agency that allows local police officers, like sheriffs’ deputies and city police officers, to enforce federal immigration law by entering into agreements with the federal agency. As part of this program, federal and local agencies can enter into agreements, known as “MOU’s”, promoted as ways to remove dangerous felons from the country. However, most of the people deported under these agreements were arrested for driving without a license or other minor offenses.
Currently there are 63 active 287(g) MOU’s in 20 states. 39 of the MOU’s are in southern states.
* North Carolina has more 287(g) counties than any other state.
* 70,000 people have been deported under this program since January 2006.
* In North Carolina, from January through September 2008, of the approximately 3,000 people placed in removal proceedings as a result of this program, 56% were charged with motor vehicle offenses, including no operators’ license and DWI.
The Policies and Politics of Local Immigration Enforcement Laws by the NC ACLU and UNC-Chapel Hill School of Law
287(g) and other ICE ACCESS Programs in 2008 by SCSJ’s Marty Rosenbluth
The widespread practice of denying voting rights to people with felony convictions in the United States disenfranchises 5.3 million citizens. Eleven states restrict voting by people even after they have completed their sentence, including prison, probation and parole, and many are barred for life. Approximately 1.5 million people are disenfranchised post-sentence. No other democratic nation disenfranchises people for life even after completion of sentence, and many impose no restrictions at all on people with felony convictions.
On March 7, 2008, The United Nations’ Committee on the Elimination of Racial Discrimination called on the U.S. to automatically restore voting rights to people with felony convictions upon completion of their criminal sentence, and raised concern that such policies have a disparate racial and ethnic impact and may be in violation of international law.
“The Committee remains concerned about the disparate impact that existing felon disenfranchisement laws have on a large number of persons belonging to racial, ethnic and national minorities, in particular African-American persons, who are disproportionately represented at every stage of the criminal justice system,” concluded the Committee in their recommendations to the U.S. Government.
These recommendations come on the heels of new research conducted by The Sentencing Project that finds 1 in 50 African-American women cannot vote, an increase of nearly 14% since 2000. This rate of disenfranchisement is nearly four times the rate for non-African-American women. Overall, an estimated 792,200 women are ineligible to vote as a result of U.S. felony disenfranchisement laws.
Currently, an estimated 1.4 million African-American men, 13%, are locked out of the ballot box, a rate seven times the national average. Given current rates of incarceration, three in ten of the next generation of black men can expect to be disenfranchised at some point in their lifetime.
To view a copy of the Committee’s recommendations, please visit: http://www2.ohchr.org/english/bodies/cerd/docs/co/CERD-C-USA-CO-6.pdf.
To learn more about U.S. felony disenfranchisement policy and its impact, see these reports by The Sentencing Project:
Felony Disenfranchisement Rates for Women
Felony Disenfranchisement Laws in the United States
SCSJ assisted an investigator from London-based legal organization, Reprieve, to research and document facts related to the case of Binyam Mohamed, a UK resident that was imprisoned at Guantanamo Bay for 5 years before being released back to the UK in February 2009.
Mohamed claims that he was flown to a secret prisons in Morocco and Afghanistan, where we was brutally tortured. Aero Contractors, the company that been implicated as the contract operators for these CIA-sponsored flights, is located in Johnston County, North Carolina.
We continue to support the efforts of NC Stop Torture Now, Reprieve, and other organizations that are working to bring to light the United States role in international kidnap and torture under its “Extraordinary Rendition” program. We believe that this program must end and applaud current efforts to shut down secret U.S. detention facilities and end the practice of torture by the United States or its proxies.
SCSJ is collaborating with Student Action with Farmworkers to host a legal intern with their “Into the Fields” program this summer. The intern will train other SAF interns on markers for human trafficking so that they are able to recognize them in their work in the field. The legal intern will also create a resource guide for partner agencies to provide them with current information about resources available to address the problem.
SAF has a tradition of creating culturally-relevant theater pieces during their summer programs that teach migrant workers about health issues, workplace safety, and their legal rights. Our legal intern will develop a popular education theater presentation on human trafficking that will be performed at farmworker camps. The goal is to make sure that farmworker communities are aware of this issue, can recognize it when it occurs, and know what steps to take to address it.
Finally, the legal intern will be in a position to have a general legal liason role. When they encounter legal issues of any nature, or when other SAF interns do, our intern will be available to investigate potential remedies and obtain appropriate legal assistance for farmworkers.
NEW RESOURCE: A new study on fresh water mussels in the Chowan River.
SCSJ is representing Citizens Against OLF (Outlying Landing Field) in Gates County.
An OLF is used for Navy pilots to practice landing in conditions similar to landing on an aircraft carrier. The Navy attempted (and failed) to place the OLF in Washington and Beaufort counties. Citizens in theses counties organized against the OLF and succeeded!
Gates County is a poor, rural, tightly-knit community near the Virginia border in eastern North Carolina. The construction of an OLF would mean the loss and destruction of centuries-old family farms. Gates County is home to incredible species diversity and many threatened species that are indigenous to North Carolina. These habitats would be permanently disrupted by the construction of an OLF.
In spite of its plans to build an OLF in a NC community, Navy representatives have stated publicly that an OLF is “not necessarily needed.”
Gates County residents are asking for help and support from citizens across North Carolina to stop the OLF from being constructed – which would dispossess and dislocate many in the community.
The Southern Coalition for Social Justice represents three African-American voters who would lose their voice in the North Carolina General Assembly if the Supreme Court rules against the State of North Carolina in Bartlett v. Strickland. This case involves the interaction between the federal Voting Rights Act and the state constitution’s whole county provision. On June 16, 2008, SCSJ filed an amicus brief on their behalf, in the U.S. Supreme Court, which highlights the history of Pender and New Hanover Counties, including intentional discrimination against black voters. Joining us on the brief were the National NAACP and the ACLU.
Pender and New Hanover Counties were originally a single county, divided into two counties as part of an explicit and intentional plan to dilute the voting strength of newly enfranchised black voters in 1875. Since the state originally created two counties to divide an effective black voting population, and now wants to allow that population to remain united in a coalitional district for legislative elections, the district should be protected by the Voting Rights Act.
The whole county provisions of the North Carolina Constitution should not be permitted to bar the state’s use of coalitional districts to provide its long-excluded minority voters with an equal opportunity to elect legislators of their choice. The whole county provisions themselves are an aspect of the State’s long history of racial discrimination impairing minority citizens’ right to vote and elect their preferred candidates to office. Without a substantial number of coalitional districts, North Carolina would soon revert to having a virtually all-white legislature.
The Supreme Court has expressly declined to rule on this issue in the past, most recently in Lulac v. Perry, the Texas Congressional redistricting case. Numerous circuit courts have addressed the issue and are split. The First Circuit has ruled that a Section 2 claim may be brought in circumstances where the black voting age population is less than 50% but still elects a candidate of choice, while the 4th, and 5th circuits have expressly ruled that Section 2 contains a bright line 50% requirement even though it is nowhere in the language of the Voting Rights Act itself. The 2nd, 9th, 10th and 11th circuits have waffled or ruled only in dicta. The New Jersey State Supreme Court has held that a less than 50% VAP district satisfies Section 2 of the Voting Rights Act.
In August 2007, the North Carolina Supreme Court ruled that a state legislative district, House District 18, which had elected a candidate of choice of black voters for many years, but was only 39.36% black in voting age population, must be redrawn because it violates the State Constitution’s whole county requirement. Pender County v. Bartlett, 649 S.E.2d 364 (NC 2007). The State argued, and the lower court had held, that the District was required in order to comply with Section 2 of the Voting Rights Act, but the NC Supreme Court ruled that Section 2 requires that a district be 50% black in order to be protected. It is not possible to draw a geographically compact district in that region of the state that is 50% black in voting age population.
Twenty Congressional districts, and many more state legislative districts, that elect candidates of choice of black voters are less than 50% black in voting age population. Many of these districts are in the South where all of the other factors necessary to demonstrate a violation of the Voting Rights Act totality of the circumstances test are present. The current rule will mean that following the 2010 census, legislatures can dismantle these less than 50% VAP districts that have elected candidates of choice of black voters without fear of being sued under Section 2 of the Voting Rights Act.
The only issue in this case is whether Section 2 of the Voting Rights Act has a 50% VAP threshold requirement. There are no issues of political gerrymandering or other claims to cloud the arguments or give the Court alternative grounds to dispose of the case. Review is being sought by the State of North Carolina, not by individual plaintiffs, and not by partisan political parties, which will put the claims in a different posture for the Court. This is a state wanting to comply with the Voting Rights Act by recognizing minority voting strength where possible. The record below is full of evidence of all the other factors relevant to a Section 2 violation, indeed, the plaintiffs conceded that all other Section 2 factors had been met, including the presence of racially polarized voting and the history of discrimination against black voters. This is the last chance for the Court to consider this issue before the 2010 round of redistricting.
Three Justices (Souter, Ginsburg, and Stevens) have recently, and powerfully, rejected the “50% Rule” that the North Carolina Supreme Court adopted in Pender County. The U.S. Supreme Court has passed on the issue five times, assuming (without deciding) that the 50% Rule misinterprets Section 2 of the Voting Rights Act (in Gingles, Growe, Voinovich, De Grandy, and LULAC). This case does not present the same factual problems as the Fort Worth district in LULAC, which was represented by an Anglo congressman who had never faced an African-American Democratic challenger, because here the incumbent is an African-American representative preferred by African-American voters and has fended off both Republican challengers in the general elections and a white Democratic challenger in the primary. In LULAC, Justice Kennedy was notably careful not to endorse the 50% Rule; and that was a case where he also sided with Latino Section 2 plaintiffs while criticizing the State of Texas for playing games by creating a literally majority-Latino but clearly ineffective “Latino” district.
Bartlett v. Strickland Amicus Brief signed onto by SCSJ
On March 17, 2008 the Supreme Court decided to hear this issue: “Whether a racial minority group that constitutes less than 50% of a proposed district’s population can state a vote dilution claim under Sectionn 2 of the Voting Rights Act, 42 U.S.C. § 1973” The issue arises in the case of Bartlett v. Strickland, decided by the North Carolina Supreme Court in August, 2007.
Kirk Rivers Case
Councilman Rivers is one of two remaining African American City Council members in Elizabeth City, NC, a community with an over 50% African American population. The challenges to his residency and council seat have been brought by Mr. Gilbert, the husband of the candidate he beat in the election. Mr. Gilbert also unsuccessfully challenged the right to vote of several African-American Elizabeth City State University students in the fall 2007 election.
Rivers has lived in the 4th Ward his entire life, and has served as their representative for the past 8 years. Last year he and his fiancee purchased a home in the 4th Ward, but after their marriage were unable to move to their new home on Hampton Drive, because of unresolved inspection issues. Until the needed repairs were completed, he stayed at his wife’s parents home outside the 4th Ward – but never redirected his mail to this address or intended it to be his permanent residence.
He was originally challenged on his eligibility to vote in the municipal elections. The consequence of him losing the residency challenge was that he would also lose his seat as a city councilman.
On March 26, 2008 the Board of Elections ruled against Mr. Rivers. As a result, the City Council declared his seat vacant and scheduled a special election to elect a replacement.
SCSJ agreed to represent Mr. Rivers, and urged the Superior Court to grant a stay of the Board of Elections order. Mr. Rivers is currently still serving as city councilman.
Rivers and his family began moving into his home on Hampton Drive in the 4th ward in early April.
Kirk and Nina participated in early voting on May 2nd, and changed their address on their voter registration at that time.
A second challenge was then filed by Mr. Gilbert, alleging that their voter registration change of address during the May primary was improper. The challengers wanted to see Mr. and Mrs. Rivers prosecuted for perjury.
Because the challenge was not filed on the day the vote was cast or 25 days prior to the election, the board of elections could only determine his residency as it related to the next election and not the primary which had already passed. At a hearing before the Board, SCSJ pro bono volunteer attorney Chris Brook represented Mr. and Mrs. Rivers and successfully demonstrated that they were property registered to vote at their new address in the 4th Ward.
The board of elections unanimously dismissed the challenge but referred the matter to the district attorney.
Breaking News 9/26/08 – Pasquotank County Board of Elections Votes 2-1 to Dismiss Challenge Against Kirk Rivers, challenger Gilbert Vows to Appeal
Breaking News 9/20/08 –
NC NAACP calls on Pasquotank Board of Elections to Stop Witch Hunt Against Rivers and Family
Rivers Complaint Dismissed, Gilbert Plans to Appeal Ruling … The Daily Advance, 9/26/08 http://www.dailyadvance.com/news/rivers-complaint-dismissed-151752.html#comments
24 Called to Testify in Sept 25 Hearing on Rivers Case… The Daily Advance, 9/16/08 http://www.dailyadvance.com/news/24-called-to-testify-in-rivers-case-135172.html
Fourth Ward City Councilman Kirk Rivers won another legal battle Wednesday in his ongoing efforts to fend off claims that he moved out of his ward…. The Daily Advance 7/9/08 http://www.dailyadvance.com/search/content/news/stories/2008/07/09/0710RiversRulingRM.htm
A judge ruled Wednesday that there was a substantial deficiency in an order declaring that Councilman Kirk Rivers had moved outside the city… The Virginia-Pilot 7/9/08 http://hamptonroads.com/2008/07/challenge-elizabeth-city-councilman-returns-local-board
Rivers elections challenges dismissed The Daily Advance, June 06, 2008
The Pasquotank County Board of Elections on Thursday dismissed two residency challenges against 4th Ward Councilman Kirk Rivers and his wife Nina…. http://southerncoalition.org/page/124789/www.dailyadvance.com
On July 23, 2008 we filed a brief on behalf of the State NAACP, together with the NAACP Legal Defense and Education Fund, in the Dean v. Leake case, urging the court to dismiss the petitioner’s appeal of the District Court’s denial of a preliminary injunction motion. In January, voters from the Republican Party of North Carolina asked a federal court to delay the elections for members of the North Carolina General Assembly because when the legislature redrew legislative district lines in 2003 they did not make corrections to the official census data based on mistakes that had been discovered, including a dorm in Chapel Hill that was counted twice in the official numbers. The Federal Court denied that request and the plaintiffs in the case have asked the Supreme Court to review the decision. Other claims in the case would force the legislature to abandon over half the districts that elect candidates of choice of black voters.
Dean v. Leake, No. 2-07-CV-51-FL, U.S. District Court, Eastern District of North Carolina
Summary: A lawsuit was filed in federal court on November 21, 2007 that seeks a preliminary injunction requiring the legislature to redraw all of North Carolina’s state house and senate districts before the 2008 elections. The case initially raises one-person, one-vote claims on behalf of 13 individual plaintiffs. However, the plaintiffs also claim that any district that is less than 50% black in voting age population but nonetheless elects a black candidate is a racial gerrymander and must be eliminated. In addition, several majority-minority districts are targeted for redrawing because they allegedly cross county lines without justification. House District 24, which is 54% black in voting age population, represented by Jean Farmer-Butterfield, is challenged at paragraph 89b of the complaint. The allegation is that the legislature should draw a district that is composed primarily of Edgecombe County residents, although some would have to be in a district with Wilson County.
SCSJ represents the North Carolina Conference of Branches of the NAACP. On January 4, 2008, the Court granted the NAACP’s motion to intervene in the case as a Defendant, seeking to defend the current redistricting plan and to oppose any effort to redraw district lines before the 2008 elections.
The Southern Coalition for Social Justice is co-counsel, along with the UNC Center for Civil Rights, for the Southern Moore Alliance of Excluded Communities and the component organizations, including:
Voices for Justice
Jackson Hamlet Community Action
Midway Neighborhood Association
Waynor Road in Action
Invisible Fences: Municipal Underbounding in Southern Moore County, an August 2006 report by the UNC Center for Civil Rights