Category Archives: Courts

Fourth Circuit Court of Appeals rejects constitutional challenge to Healthcare Act

Via Think Progress:

The Fourth Circuit just handed down two opinions ordering that Virginia Attorney General Ken Cuccinelli’s challenge to the Affordable Care Act, along with another challenge to brought by Jerry Falwell’s Liberty University, both must be dismissed entirely on jurisdictional grounds. Judge Davis dissented from the Liberty University opinion to say that he would reach the merits and uphold the law. Today’s decisions are the first court of appeals decisions to dismiss a case for want of jurisdiction after a lower court reached the merits – potentially raising the possibility that one or more of the justices could agree with them and prevent this constitutional question from being decided on the merits until after 2014.

Fourth Circuit opinions homepage

ACLU files suit over Choose Life plates

The ACLU announced this morning that it has filed suit against the state over the Choose Life license plates adopted in the regular session this spring.
The organization wants the state to issue a pro-choice specialty plate. According to the release:

RALEIGH — The American Civil Liberties Union of North Carolina Legal Foundation (ACLU-NCLF) filed a lawsuit today in the federal district court for the Eastern District of North Carolina on behalf of North Carolinians seeking a specialty license plate that supports a woman’s right to reproductive freedom. During this year’s legislative session, the North Carolina General Assembly passed House Bill 289, which authorized the issuance of a “Choose Life” license plate. However, the legislature repeatedly refused to authorize a plate that supported the countervailing position in favor of reproductive freedom. Six amendments were proposed in the legislature to authorize an additional new plate that stated either, “Trust Women. Respect Choice,” or simply “Respect Choice.” The legislature rejected all six amendments. As such, the lawsuit alleges that the State is engaging in unconstitutional viewpoint discrimination in violation of the First Amendment.

“If anti-choice drivers are permitted to express their views on their license plates, people like me should be able to express our view that women deserve full reproductive freedom,” said Sue Holliday, plaintiff and certified nurse midwife.

Complaint (pdf)

Other links at the bottom of the release.

The Maps of Mid July

“Elections matter” although perhaps a little condescending is the best way to answer the questions you get when trying to explain the consequences of the newly redrawn state House and Senate districts and the process by which they were created.
Once the final tally came in on the evening of the first Tuesday after the first Monday in November 2010 this was inevitable. Elections matter and in this case they mattered greatly. As one political consultant put it to me recently, losing big ahead of a redistricting year is “like a hurricane coming ashore at high tide on a full moon.”
In any contest one side being able to set the rules of the game is an overwhelming advantage. Being able to change them midstream is even more advantageous. That’s the case here in North Carolina where the GOP led redistricting will reset the dynamics of the state’s legislative contests. At the same time there’s been a robust effort on the part of the party in power to rewrite as much of the state’s election code as they can get away with. Many of these bills are complex but their goal to reduce both the turnout and impact of votes from traditionally Democratic areas and constituencies is not. At this point, with the cards now on the table, no one could look at what is being done and declare it neutral.
That the attempt to override Gov. Bev Perdue’s veto of the Voter ID bill, the crudest of the vote suppression tools, is coming during a session dedicated to redistricting further underlines that this is a coordinate, partisan effort to consolidate and hold on to power.
The House and Senate maps released yesterday, just days ahead of the session, were full of tricks and traps for specific members of the opposition as well as a highly transparent overall effort to mitigate Democratic voter turnout.
Data from the maps show Democratic voters more tightly packed in their districts than Republicans. Totals of how each district leaned in past races is far out of line with the actual statewide results. The carving up of minority areas, the double-bunking of sitting Democratic legislators into one district and drawing specific legislators out of their districts are tried and true techniques to rig the outcome.
The courts will have their say on this and as they’ve done in the past when Democrats have similarly overreached require some reworking of the specifics, particularly in how the cities with large minority populations are sliced and diced.
Even after the courts get a hold of them and ask for a redrafting here and there the strategy and its consequences in 2012 and years later will be felt and the end result will be the same: for the next decade the state legislature will be more conservative than the state itself.
Statewide races for both state and national office won’t be greatly affected by the legislative maps (they will be affected by the some of the vote suppression efforts) so we’re likely to continue to see the state skew more for Democrats in those races, while the new districts help GOP candidates in races for U.S. Congress and the state House and Senate.
A big turnout in next year’s election could upset these dynamics, but in the non-presidential years the maps will favor the GOP. In 2016 and 2020, whether North Carolina is in play in the presidential contest and the general enthusiasm of the electorate will have a big effect on the makeup of the General Assembly. But in 2014 and 2018 the maps will set the stage for the GOP to win back what might have been lost in prior elections.
Election matter.

Let’s hear it for transparency

Updated: Strange version of a late Friday news dump but apparently the House Republicans held their strategy discussion with an open mike in the room that was broadcasting to the press room.

Mr. Binker has the audio at the end of his blog post, which features this splendid example of bipartisanship:

Stam emphasized that only Rep. Davis Lewis, a Harnett Republican and chairman of the Elections Committee, should speak to the redistricting provisions “because David can obfuscate more than anyone I know.”

Here’s the audio embed via the News & Record:

Some of the what was noted in the Under the Dome story:

House Speaker Thom Tillis reminded members not to talk about “Democrats,” but to counter individuals by name.

“This is not about Democrats, because we have Democrats voting for this budget,” he said. “Please, do not go after the Democrats. If you want to go after an individual member for saying something stupid, gut punch them. These five Democrats are going after her (Gov. Bev Perdue.) We’ll go after the governor; when we have a veto override.”

WRAL had this tidbit about redistricting strategy from the same meeting:

Stam explained that for redistricting, “The plan all along has been to submit this to the courts, rather than the Department of Justice, since this will be the first redistricting plan under the Voting Rights Act submitted to a DOJ controlled by Democrats, let alone Obama.”

(The DC Circuit Court, which is where the redistricting plan would go, is considered quite conservative.)

“Y’all need to be raising money for our outside counsel for after session adjourns,” Stam joked.

(More later, I’m sure)

In the Char-O Michael Biesecker (who should get the hat tip for this one) highlights the main reason we’ll see a rush for a constitutional amendment to “protect” marriage:

Rep. Mark Hilton, a Catawba Republican, told members of his caucus in a closed-door meeting today that groups supporting a constitutional gay-marriage ban need a vote this year so they can organize their get-out-the-vote campaigns.

WRAL livestreaming judiciary hearing

Lots going on, including comments on Racial Justice Act

agenda as of this am:

Judiciary Subcommittee B (House)
Rendering Act Amendments. (H512)
Amend Felony Firearms Act/Increase Penalties. (H582)
Utilities Commission/Criminal Records Check. (H340)
Assault on LEO Inflicting Bodily Injury. (H696)
Supervis. of Magistrates/Juries/Calendaring. (H517)
No Discriminatory Purpose in Death Penalty. (H615)
Make Synthetic Cannabinoids Illegal. (S9)

NC GOP wimps out

Well, unlike those big burly Red States that want to either nullify or secede, this state’s new overlords are merely going to pass a resolution declaring that the 10th Amendment means what it says they mean.
Here’s the text of the resolution being introduced today.

A HOUSE RESOLUTION supporting the state of North Carolina’s right to claim sovereignty over certain powers under the Tenth Amendment to the Constitution of the United States.

Whereas, the Tenth Amendment to the Constitution of the United States reads as follows: “The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people;” and

Whereas, the Tenth Amendment defines the total scope of federal power as being that specifically granted by the Constitution of the United States and no more; and

Whereas, the scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states; and

Whereas, today, in 2011, the states are demonstrably treated as agents of the federal government; and

Whereas, many federal mandates are directly in violation of the Tenth Amendment to the Constitution of the United States; and

Whereas, Section 4 of Article IV of the Constitution of the United States says, “The United States shall guarantee to every state in this union a republican form of government,” and the Ninth Amendment states that “The enumeration in the constitution of certain rights, shall not be construed to deny or disparage others retained by the people;” and

Whereas, the United States Supreme Court ruled in New York v. United States, 112 S. Ct. 2408 (1992), that Congress may not simply commandeer the legislative and regulatory processes of the states; and

Whereas, a number of proposals from previous administrations and some now pending from the present administration and from Congress may further violate the Constitution of the United States; Now, therefore,

Be it resolved by the House of Representatives:

SECTION 1. The North Carolina House of Representatives supports the State’s right to claim sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government or reserved to the people by the Constitution of the United States.

SECTION 2. The North Carolina House of Representatives urges the federal government, as the agent of the State, to cease and desist, effective immediately, mandates that are beyond the scope of any constitutionally delegated powers.

SECTION 3. The North Carolina House of Representatives further urges that compulsory federal legislation which directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding be prohibited or repealed.

SECTION 4. The Principal Clerk shall transmit a certified copy of this resolution to the President of the United States, the President of the United States Senate, the Speaker of the United States House of Representatives, and each member of the North Carolina Congressional Delegation.

SECTION 5. This resolution is effective upon adoption.

Morning Post: Number 14 edition

14th Amendment
Amendment XIV
Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.