HOME



Digby's Hullabaloo
2801 Ocean Park Blvd.
Box 157
Santa Monica, Ca 90405



Facebook: Digby Parton

Twitter:
@digby56
@Gaius_Publius
@BloggersRUs (Tom Sullivan)
@spockosbrain



emails:
Digby:
thedigbyblog at gmail
Dennis:
satniteflix at gmail
Gaius:
publius.gaius at gmail
Tom:
tpostsully at gmail
Spocko:
Spockosbrain at gmail
tristero:
Richardein at me.com








Infomania

Salon
Buzzflash
Mother Jones
Raw Story
Huffington Post
Slate
Crooks and Liars
American Prospect
New Republic


Denofcinema.com: Saturday Night at the Movies by Dennis Hartley review archive

January 2003 February 2003 March 2003 April 2003 May 2003 June 2003 July 2003 August 2003 September 2003 October 2003 November 2003 December 2003 January 2004 February 2004 March 2004 April 2004 May 2004 June 2004 July 2004 August 2004 September 2004 October 2004 November 2004 December 2004 January 2005 February 2005 March 2005 April 2005 May 2005 June 2005 July 2005 August 2005 September 2005 October 2005 November 2005 December 2005 January 2006 February 2006 March 2006 April 2006 May 2006 June 2006 July 2006 August 2006 September 2006 October 2006 November 2006 December 2006 January 2007 February 2007 March 2007 April 2007 May 2007 June 2007 July 2007 August 2007 September 2007 October 2007 November 2007 December 2007 January 2008 February 2008 March 2008 April 2008 May 2008 June 2008 July 2008 August 2008 September 2008 October 2008 November 2008 December 2008 January 2009 February 2009 March 2009 April 2009 May 2009 June 2009 July 2009 August 2009 September 2009 October 2009 November 2009 December 2009 January 2010 February 2010 March 2010 April 2010 May 2010 June 2010 July 2010 August 2010 September 2010 October 2010 November 2010 December 2010 January 2011 February 2011 March 2011 April 2011 May 2011 June 2011 July 2011 August 2011 September 2011 October 2011 November 2011 December 2011 January 2012 February 2012 March 2012 April 2012 May 2012 June 2012 July 2012 August 2012 September 2012 October 2012 November 2012 December 2012 January 2013 February 2013 March 2013 April 2013 May 2013 June 2013 July 2013 August 2013 September 2013 October 2013 November 2013 December 2013 January 2014 February 2014 March 2014 April 2014 May 2014 June 2014 July 2014 August 2014 September 2014 October 2014 November 2014 December 2014 January 2015 February 2015 March 2015 April 2015 May 2015 June 2015 July 2015 August 2015 September 2015 October 2015 November 2015 December 2015 January 2016 February 2016 March 2016 April 2016 May 2016 June 2016 July 2016 August 2016 September 2016 October 2016 November 2016 December 2016 January 2017 February 2017 March 2017 April 2017 May 2017 June 2017 July 2017 August 2017 September 2017 October 2017 November 2017 December 2017 January 2018 February 2018 March 2018 April 2018 May 2018 June 2018 July 2018 August 2018 September 2018 October 2018 November 2018 December 2018 January 2019 February 2019 March 2019 April 2019 May 2019 June 2019 July 2019


 

This page is powered by Blogger. Isn't yours?

Hullabaloo


Thursday, January 03, 2019

 

North Carolina: State of Confusion

by Tom Sullivan


Moral Monday Protesters, Raleigh, NC. Movement is over five years old. Photo by twbuckner via Flickr/Creative Commons.

Rep. Nancy Pelosi takes up her gavel as House Speaker once again at noon (presumably). On her plate, a pair of bills to ending the government shutdown and end the partial government shutdown without funding the border wall the president wants. Somewhere down the list: what to do about North Carolina's unresolved 9th Congressional District race.

The results of a race in which Republican Mark Harris led Democrat Dan McCready by 905 votes after vote-counting remains uncertified by the State Board of Elections. As of now, and by court order, there is no board to certify them until a new one assembles on January 31. Central are allegations that election fraud engineered by a Harris employee accused (not yet formally) of illegally "harvesting" absentee ballots from voters, destroying some, completing others, and selectively returning those supporting Harris to county elections officials.

With the State Board charged with investigating that dissolved (in another court dispute), the outcome remains in "no man's land," says WSOC-TV reporter Joe Bruno. The evidentiary hearing originally scheduled for January 11 is cancelled. Incoming U.S. House majority leader, Steny Hoyer, said over the weekend the House would not seat Harris when it opens Thursday.

After investigating the fraud allegations, a reconstituted state elections board might call for a new election and primary. Outgoing Republican 9th District Congressman Robert Pittenger, defeated by Harris in the GOP primary last year, announced he would not compete again. In the meantime, state staff gathers evidence.

The Washington Post reports Harris plans to sue to have a court declare him the victor.

But with the House, not the state, the final arbiter of its own elections, now what?

Michael Stern writes at Point of Order, a blog on congressional legal issues, that the House must first formally declare the seat vacant. But for now, it has examined no evidence the election was so tainted that it is impossible to determine which candidate won and a new election is necessary:

So what then should the House do? It could choose to seat Harris without prejudice to its ultimate determination of the election outcome. Normally this is what the House does when one candidate is certified as the winner but there appears to be a serious challenge to the certified election results. Even then, the House sometimes declines to seat anyone. I am not aware of any precedent for what the House should do when the state authorities have not certified anyone as the winner, but it seems logical that no one would be seated in that situation. On the other hand, that intensifies the need for a speedy resolution of the matter.

The House could also choose to wait upon the outcome of the state election investigation. There are both pragmatic and constitutional considerations against such an approach, however. The former include the fact that it would significantly extend the period in which the people of the district would be unrepresented, particularly because the process in North Carolina appears to be bogged down with its own problems. The latter include the question whether it is proper for state election authorities or courts to make the types of difficult factual and legal decisions inherent in a fraud case (as opposed to the administrative nature of a recount). See Kristen R. Lisk, The Resolution of Contested Elections in the U.S. House of Representatives: Why State Courts Should Not Help with the House Work, 83 N.Y.U. L. Rev. 1213, 1217-18 (2008) (arguing for “exclusive congressional jurisdiction over all election contests seeking more than administrative recounts, because these contests involve substantive claims that require decision makers to engage directly with election results and make difficult policy decisions.”).

There is a separate and even more serious question whether state officials have the authority to order a new election on the grounds that the original election was tainted by fraud. A new election is fundamentally different than recounts or other post-election remedies. Under federal law, North Carolina was required to conduct its congressional elections for the 116th Congress on the first Monday in November 2018. See 2 U.S.C. 7. If a vacancy then happens in North Carolina’s representation, the governor must then issue a writ of election to fill the vacancy, but I am not aware of any authority for the proposition that the governor or other state officials can declare a vacancy because they believe the initial election to be defective in some way.
Could things be worse for North Carolina Republicans? You knew they could.

Within weeks, the U.S. Supreme Court could rule in the matter of League of Women Voters of North Carolina v. Rucho and Rucho v. Common Cause. At issue is whether to let stand an August ruling by a three-judge district court panel that found North Carolina’s 2016 congressional redistricting plan a product of "invidious partisanship" and an unconstitutional political gerrymander. It was the second ruling against the NCGOP-drawn 2011 maps. The Supreme Court has been reluctant to address whether partisan gerrymandering is unconstitutional and must decide whether to hear arguments in its current session. Justices met behind closed doors to review the case in early December. Whatever action the high court takes, North Carolina Republicans have succeeded in imposing districts twice ruled unconstitutional for almost an entire ten-year redistricting cycle. Leaving the district court ruling in place would mean new court-ordered districts in 2020.

The constitutionality of North Carolina's state legislative districts remains in dispute as well:
RALEIGH, N.C. (AP) — Litigation challenging North Carolina legislative districts on arguments they excessively favor Republicans to the point of violating the state constitution will remain in state court.

A federal judge Wednesday ordered the case stay in Wake County Superior Court, where Democrats and election reform advocates filed their partisan gerrymandering lawsuit in November. U.S. District Judge Louise Flanagan wrote she’d explain her reasoning later.

Last month, Republican lawmakers sought to move the lawsuit to federal court because they said the way plaintiffs wanted House and Senate maps redrawn conflict with federal laws. The plaintiffs said no such conflict exists and seek a state trial in April.
“Legislative Defendants’ notice of removal is an egregious and transparent attempt to delay and derail state court proceedings in this case of extraordinary public importance,” the plaintiffs' motion states. “There is no plausible, good-faith basis for federal subject matter jurisdiction here, and the attempted removal is procedurally defective on its face.” Flanagan appears to have agreed.

Civil rights attorney Anita Earls takes office as the newest state Supreme Court associate justice on Thursday. Earls, a Democrat, won a seat on the court in November, giving the court a 5-2 progressive lean. Hence, Republicans' attempt to move the question out of the state's hands.

Election law in North Carolina is nothing if not action-packed.