NC Legislature Keeping Courts Busy
By Nelda Holder –
The North Carolina General Assembly will officially reassemble on April 25, 2016, but February and March will be full of legislative focus on several fronts, not the least of which will be taking place in various courtrooms.
In the Statehouse, various oversight committees will be meeting throughout February. Then the schedule thins while legislators, voters, and candidates apply their energies to the state’s primary election on March 15.
That’s two months before the once-traditional May date, supposedly positioning the state more favorably in the game of presidential politics. North Carolina now joins a large bloc of states selecting presidential favorites through primaries or caucuses in March, including Florida, Missouri, Ohio, and Illinois, where voting also takes place on March 15.
The primary will also winnow candidates running for their party’s nomination in U.S. Senate, U.S. House, gubernatorial, Council of State, legislative, and local races.
The Ghost of 2013
Meanwhile, as the 2016 political scene gets lively, the ghost of 2013 has been haunting state and federal courtroom halls. Perhaps the most hotly contested piece of legislation – and one which plays an important role in the primary by requiring, for the first time, a photo ID in order to vote – is the 2013 act known as “VIVA,” the Voter Information Verification Act (State Law 2013-381).
VIVA is being challenged in federal court in Winston-Salem, where final arguments regarding the voter ID provision had just been heard at press time. Arguments on other portions of the law took place last summer. Attorneys must file proposed findings of fact by February 24; it is not known when the judge will issue a decision. The legal challenge was brought by the North Carolina NAACP, the U.S. Department of Justice, the League of Women Voters of NC, and other organizations and individuals.
The Ghost of 2011
The VIVA fight comes on the heels of lawsuits regarding redistricting in the state, charging racial gerrymandering in violation of the Equal Protection Clause of the 14th Amendment. In a case involving two of the state’s 13 congressional districts, a three-judge federal panel ruled on February 5 that the 1st and 12th districts’ boundaries must be redrawn within two weeks. A quick appeal is expected, but the effect on the March 15 primary is unknown at press time.
In an earlier redistricting suit, the NC Supreme Court, directed by the U.S. Supreme Court to reconsider the case, voted in December (in a 4-3 split along party lines) to uphold a decision by a three-judge panel that had ruled in favor of the legislative mapmakers. The U.S. Supreme Court had remanded the case after ruling in a similar gerrymandering case in Alabama, which the court found unconstitutional.
The Specter of 2016
The office of the Attorney General is required by law to provide a legislative report twice yearly regarding any lawsuit in which the constitutionality of a North Carolina law has been challenged. The October report in 2015 listed 12 court challenges (plus one amicus brief), six of which involved voting rights and redistricting, including the above.
Of the remaining six constitutional challenges, the NC Supreme Court ruled 6-1 in January that legislators had violated the NC Constitution in creating the Coal Ash Management Commission and two other commissions, usurping the functions of the executive branch.
Other cases on the list involve mandated county commissioner districts for Wake County; a suit by the NC Association of Educators regarding dues check-off options; and three cases involving several public advocacy and animal rights organizations.
One of the three cases is garnering national attention as another “ag-gag” situation, modeled after laws that have now been struck down in Idaho and are being challenged in Wyoming and Utah. Bringing this suit are PETA (People for Ethical Treatment of Animals), the Center for Food Safety, Animal Legal Defense Fund, Farm Sanctuary, Food & Water Watch, and the Government Accountability Project.
Law charged as “anti-sunshine”
“Ag-gag” laws are considered to be aimed against whistleblowers in the agricultural industry. The North Carolina law in question is being widely called the “Anti-Sunshine Law” because it has extended beyond the agricultural industry to include any entry into “nonpublic areas of another’s premises” for reasons other than employment or doing business with the employer. It makes acts of recording images or sound subject to damages ($5,000 per day in civil penalties).
The NC lawsuit, which will be heard in the U.S. District Court, Middle District, in Greensboro, names as defendants both the state’s attorney general as well as the chancellor of the University Of North Carolina-Chapel Hill in seeking overturn the state law. Chancellor Carol Folt was named, according to legal counsel, because of an ongoing case involving the university that could be affected by the new lawsuit.
Because of its national import, this suit has already brought on the attention of national media, including a February 1 editorial in The New York Times titled “No More Exposés in North Carolina.” The piece points out that the NC law, which took effect on January 1, will not only silence whistleblowers – including activists or journalists – in slaughterhouses or on farms, but, since it extends to all workplaces in the state, could prevent the undercover reporting of abuses of elderly patients or in children’s day care facilities and veteran’s facilities.
Passed by the Legislature as House Bill 405, the law was vetoed by Gov. Pat McCrory for just such concerns, but the veto was overridden last June. Expect to hear a lot more about this controversial bill.
Nelda Holder is the author of The Thirteenth Juror – Ferguson: A Personal Look at the Grand Jury Transcripts.
