Open season on individual rights

Open season on individual rights

Conservatives seek voting restrictions, keep fighting on old social issues

- in Altered State, Featured Articles

The party of less government rolled into Raleigh after the 2010 elections champing at the bit, eager to fulfill an agenda long delayed.

“Regulations kill jobs” became the rallying cry, but as it turned out, that cry only went so far. When it came to voting booths, bedrooms, doctor’s offices and execution chambers, the self-styled opponents of intrusive government injected themselves in ways not seen before in state government.

"What democracy looks like" — Demonstrators gather in Raleigh during the 2014 "Historic Thousands on Jones Street" rally. (Photo by Ricky Leung)
“What democracy looks like” — Demonstrators gather in Raleigh during the 2014 “Historic Thousands on Jones Street” rally. (Photo by Ricky Leung)

Voting rights landed first in their crosshairs.

“We’ve lost every gain we’d made,” Bob Phillips of Common Cause North Carolina said. “We’ve lost just about all the pro-voting, pro-democracy laws that we had pushed.”

But voters weren’t alone. Women, gay North Carolinians, death row inmates — all were fair game as conservative lawmakers pursued their causes with a vengeance.

“There’s a real harsh, mean spirit inside the Legislative Building, more so than I’ve ever seen,” Phillips added.

Moving the lines, changing the rules

The attack on voting rights in North Carolina began even before the new conservative majority took charge in the General Assembly in January 2011.

Just after the 2010 election, legislative leaders hired high-profile mapmakers working for the Washington-based Republican State Leadership Committee to assess the 2010 census and redraw voting lines in a way that would ensure party control for years to come.

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Taking cover under the Voting Rights Act, the majority adopted a redistricting map for the state legislature and congressional seats that split precincts, combined counties and extended claws into outlying areas in unprecedented fashion — reaching pockets of African-American voters and packing them into districts where they’d already been electing their candidates of choice, often for years and by wide margins.

The result: whiter and more conservative districts everywhere else.

The lawsuit that followed, pending now for four years after a full run through the state courts and up to the U.S. Supreme Court, is now back in state Supreme Court, with a final resolution potentially years away.

In the meantime, voters went to the polls in the 2012 statewide elections, and the results were telling. As mathematicians at Duke University confirmed in a study, district voting lines skewed the outcome of North Carolina’s congressional elections that year.

Although more votes were cast for Democrats than Republicans in those races, Republicans won nine of the state’s 13 seats.

“Through this gerrymandering process, politicians are choosing who is going to win the next election,” said Democratic state Sen. Jeff Jackson of Mecklenburg County.

Sen. Jeff Jackson of Mecklenburg County discusses how gerrymandering has skewed North Carolina’s elections, making many races uncompetitive. Jackson supports an independent redistricting process.

“We all deserve to have a competitive election, because voters deserve to choose who their representatives are,” he said. “Of the 13 congressional districts we have, zero are competitive. It doesn’t matter if they’re outright corrupt, or incompetent, [incumbents] cannot lose a general election. That’s terrible.”

According to Justin Levitt, a redistricting expert and professor at Loyola Law School in Los Angeles, the increase in citizen protests and voter discontent is a result of the distorted voting maps.

“It’s a direct line,” he said. “Some of the protests have to do with the substance of legislators’ actions — that people don’t like what they’re doing — but just as much of it has to do with the fact that they feel like this legislature doesn’t fairly represent them.”

Redistricting wasn’t the only tack the conservatives took in an effort to control the vote. After years of growth in voter turnout brought about by early voting, same-day registration and other curative measures, the legislative majority set out to change the rules of the game.

Early efforts at passage of a voter ID bill were stymied by Democratic Gov. Bev Perdue’s veto in 2011 but renewed a session later.

Then came the U.S. Supreme Court’s June 2013 decision in Shelby County v. Holder, gutting the requirement that states with a history of discrimination like North Carolina get voting changes precleared by the Justice Department. That freed state lawmakers to pursue broader and more restrictive measures.

“Now we can go with the full bill,” state Sen. Tom Apodaca (R-Henderson) said, and go they did, pushing House Bill 589 through both chambers and on to Gov. Pat McCrory’s desk for signature in just weeks.

According to election law experts, the “Monster Voting Law” created one of the most restrictive voting environments in the country. Among its sweeping changes, it requires a photo ID for in-person voting, prohibits the counting of out-of-precinct ballots, shortens the early voting period and eliminates same-day registration.

Which if any of these changes will be in effect for the 2016 elections — starting with the March primaries — depends upon state and federal court rulings expected in the coming months, and a final resolution by the U.S. Supreme Court is not out of the question.

Blocking marriages

North Carolina doubled down on its same-sex marriage ban in 2012 when voters approved a General Assembly-initiated constitutional amendment recognizing marriage as between a man and a woman only, adding to a state law that already prohibited same-sex marriage.

It was an aggressive move by conservative lawmakers hoping to seal the fate of marriage equality challenges here.

But courts elsewhere had already begun overturning such bans, and in June 2013, the U.S. Supreme Court weighed in on the subject, ruling in U.S. v. Windsor that provisions of the federal Defense of Marriage Act defining marriage as only between a man and a woman were unconstitutional.

After Windsor, state barriers to marriage equality fell with remarkable speed, either by court or legislative action, and public approval of same-sex marriages grew just as fast.

For love and family — Shawn Long (right) and his husband Craig Johnson (left) were among the first in North Carolina to file a lawsuit for same-sex marriage so they could be a legal family with their son Isaiah. (Courtesy of Shawn Long, Director of Operations at Equality NC; photo by Ricky Leung for the American Sexual Health Association)
For love and family — Shawn Long (right) and his husband Craig Johnson (left) were among the first in North Carolina to file a lawsuit for same-sex marriage so they could be a legal family with their son Isaiah. (Courtesy of Shawn Long, Director of Operations at Equality NC; photo by Ricky Leung for the American Sexual Health Association)

In North Carolina, a gay couple had already filed suit in federal court challenging the state’s ban on second parent adoptions and then added a challenge to the marriage amendment, as did parties in three additional federal lawsuits filed here in 2014.

Those lawsuits were pending when the federal appeals court in Richmond struck down a similar Virginia ban. That prompted N.C. Attorney General Roy Cooper to declare that his office could no longer defend North Carolina’s ban, and it gave judges in each of the lawsuits cause to overturn the ban here.

Persisting in their efforts to save the state ban, conservative lawmakers appealed to the U.S. Supreme Court for relief. The high court considered the Virginia ban instead and put the entire issue to rest this past June, ruling in Obergefell v. Hodges that states could not deny same-sex couples the right to marry.

Having lost the war, North Carolina conservatives nonetheless continued to press for laws obstructing marriage rights. One of the first bills filed this past session in the Senate, enacted over a veto by the governor, allows magistrates throughout the state to opt out of performing marriages if they have a “sincerely held religious objection” to same-sex marriage.

More than 30 magistrates statewide — including all four in McDowell County — have recused themselves from performing marriages since that law’s passage, burdening those who continue to perform their jobs.

“The intent of Senate Bill 2 has always been clear — to allow for legal discrimination to occur under North Carolina law,” said Chris Sgro, executive director of Equality NC. “The fact that we are having to ship magistrates from county to county to comply with this bill is simply unacceptable. This is only costing taxpayers more money and placing additional burdens on magistrates’ offices.”

Abortion battles continue

With little notice to their colleagues and on the eve of the July 4 holiday in 2013, conservative lawmakers brought to the floor what had once been a motorcycle safety bill but had been gutted and replaced with provisions aimed at forcing the closure of many abortion clinics in North Carolina.

The motocycle monologues — Pro-choice supporters protest what they call the "Motorcycle Vagina" bill in 2013 at the N.C. General Assembly. Changes to the original motorcycle safety legislation meant the closure of many clinics across the state that provide access to safe abortion procedures. (Photo by Ricky Leung)
The motorcycle monologues — Pro-choice supporters protest what they call the “Motorcycle Vagina” bill in 2013 at the N.C. General Assembly. Changes to the original motorcycle safety legislation meant the closure of many clinics across the state that provide access to safe abortion procedures. (Photo by Ricky Leung)

It was a move that spoke both to the tactics resorted to by some state lawmakers these past five years and to the majority’s continued insistence on injecting themselves into women’s health care decisions.

Labeled the “motorcycle vagina” bill by opponents, the law, as ultimately signed by Gov. Pat McCrory (despite campaign promises to the contrary), called for regulations holding abortion clinics to the same standards as ambulatory surgical centers — standards that could force the shutdown of many if not most clinics in the state, according to pro-choice groups.

It wasn’t the majority’s first foray into anti-abortion legislation.

Over a veto by then-Gov. Perdue, state lawmakers enacted the Woman’s Right to Know Act in July 2011, which required that a doctor perform an ultrasound on a patient — regardless of consent — at least four hours before an abortion, showing her the images and describing what is seen.

U.S. District Judge Catherine Eagles overturned the law in January 2014, ruling that the legislature could not compel doctors “to speak the ideological message of the state.” The Fourth Circuit agreed with Eagles, and the U.S. Supreme Court later refused to hear the case, leaving the lower court rulings in place.

Legislative intrusions into women’s health care decisions continued this year as lawmakers pushed through a 72-hour waiting period for abortions, saying that such a change was necessary to protect women from the consequences of what the conservative majority deemed to be an otherwise hasty decision.

Opponents derided that purpose as patronizing and insulting to women.

“This is not about respecting or supporting women,” state Rep. Tricia Cotham (D-Mecklenburg) said, noting that other life-changing procedures did not require a waiting period. “It’s about creating barriers that unfairly harm especially women of very limited financial means.”

“Abortion is a deeply personal decision,” Cotham added. “My womb and my uterus are not up for your political grab.”

The bill passed nonetheless, and for a second time, McCrory broke his campaign promise of no more abortion restrictions by signing the bill into law in June. North Carolina is now one of just four states requiring such a delay.

Jump-starting executions

It didn’t take long for McCrory to put pen to paper and sign off on the repeal of the state’s landmark Racial Justice Act in 2013, making good on his campaign promise to rid North Carolina of legislation he once called a joke.

Enacted in 2009, the law allowed death row inmates to seek a conversion of their sentence to life in prison without parole upon a showing — through statistical evidence and otherwise — that race was a significant factor in the imposition of their sentences.

Death penalty opponents hailed its passage as a necessary safeguard to continued racial bias in the judicial system. From Day One, though, prosecutors and other proponents set out to overturn it.

By the time of the repeal, most of the state’s 152 death row inmates had filed motions seeking to have their sentences commuted. All but a handful of those motions have gone nowhere, but four inmates were able to win reductions in their sentences based upon a showing of racial bias. Their cases are now pending in state Supreme Court.

Free to live — Leon Brown spent decades in prison on death row awaiting execution for a crime he did not commit. Brown was finally exonerated on Sept. 2, 2014. (Courtesy of the N.C. Coalition for Alternatives to the Death Penalty; photo by Jenny Warburg.)
Free to live — Leon Brown spent decades in prison on death row awaiting execution for a crime he did not commit. Brown was finally exonerated on Sept. 2, 2014. (Courtesy of the N.C. Coalition for Alternatives to the Death Penalty; photo by Jenny Warburg.)

In the meantime, the state witnessed the release of several wrongly convicted death row inmates — most recently Joseph Sledge, Henry McCollum and Leon Brown — men who spent most of their lives behind bars, awaiting execution for crimes they did not commit. Their exonerations exposed a flawed justice system, plagued by bias and corrupt evidence and haunted by prosecutors who elevated their own success over the truth.

They also deepened a growing rift in conservative thinking, with more public officials on the Right joining the conversation about putting an end to the death penalty.

Former N.C. Chief Justice I. Beverly Lake, Jr., for example, has made it his mission since leaving the bench to help free death row inmates who may have been wrongfully convicted, and he recently stated that he now opposes capital punishment.

“There’s always a chance we might execute an innocent person,” he said in a recent interview.

That conversation aside, and in the face of botched executions elsewhere across the country, conservative lawmakers have persisted in seeking to jump-start the death penalty here.

During the 2015 session, the legislators enacted a death penalty secrecy law that cuts off public debate by exempting the N.C. Department of Public Safety from rule-making requirements when executions are involved, eases restrictions on the type of drugs used for lethal injections and allows medical professionals other than doctors to monitor the process.

It also gags opposition by protecting the manufacturers of the drugs, whose identities will now be confidential.

“It’s important that the manufacturers be allowed by contract to stay confidential so that they aren’t litigated to death in order to prevent them from selling these drugs to the state,” state Sen. Buck Newton (R-Wilson) said during floor debate.

sharon@ncpolicywatch.com

About the author

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years.