New and ongoing legal challenges to much of the controversial legislation enacted in North Carolina these past few years continued in 2015, proving once again why courts as final arbiters matter.
Here are some of the highlights.
Marriage equality inched closer. After casting the viability of government gay marriage bans in doubt in 2013, ruling then 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, the U.S. Supreme Court took the next step in June and struck down state bans in Obergefell v. Hodges. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” Justice Anthony Kennedy wrote in the 5-4 decision. “[The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right.” Despite those definitive words though, state conservative lawmakers 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. And now that recusal law is itself the subject of a lawsuit filed in federal court in Asheville earlier this month.
The Affordable Care Act won again. For the second time in three years, the U. S. Supreme Court upheld President Obama’s signature health care plan, confirming by a 6-3 vote in King v. Burwell that subsidies were available to purchasers on both state and federal exchanges. Obamacare critics contended that the law only authorized subsidies for purchasers on state-run exchanges, relying on language in the Act which appeared to limit subsidies to people buying insurance on “an exchange established by the state.” That interpretation could have been the death knell for the program, since most purchasers relied on the subsidies when purchasing health insurance and most states, including North Carolina, did not set up their own health care exchanges. More than 560,000 state residents here purchased health insurance on the federal exchange instead, with more than 90 percent doing so with the help of subsidies designed to make coverage affordable for middle- and low-income purchasers. The King decision follows the high court’s 2012 ruling in National Federation of Independent Business v. Sebelius, upholding the ACA’s individual mandate.
The Voting Rights Act turned 50. North Carolina celebrated the 50th anniversary of the Voting Rights Act by continuing its legal defense of the state’s five-year assault on the franchise here. The state Supreme Court’s late 2014 ruling upholding the most recent redistricting plan landed before the U.S. Supreme Court and then came back down for further review, after the justices there rejected an Alabama voting map drawn in similar fashion. In the meantime, additional challenges to the voting maps proceeded in federal court, with a trial in the congressional district lawsuit finished in October and now awaiting decision and another trial in the state legislative district case set for April 2016. The federal lawsuits challenging the 2013 monster voting law also went to trial in July and August, but not before a last-ditch effort by conservative lawmakers to quell attacks on the voter ID provisions. In late June the legislative majority adopted an amendment allowing voters without photo ID to vote anyway after swearing that they had a “reasonable impediment” to getting an acceptable ID, and then asked U.S. District Judge Thomas Schroeder to dismiss the voter ID challenge. Schroeder denied that request, and the parties are now completing court filings on that claim. Expect a decision in early 2016.
Duke Energy pleaded guilty. After months of speculation and negotiation, Duke Energy entered a guilty plea in May to misdemeanor violations of the Clean Water Act at its Dan River and other plants and agreed to pay the federal government a record $102 million fine. By that time the state Department of Environment and Natural Resources (now the Department of Environmental Quality) had already fined the company $25 million for groundwater contamination from coal ash at the company’s Sutton Plant near Wilmington. But after Duke appealed, state regulators slashed that fine, agreeing to accept $7 million for contamination at all 14 of its sites here and requiring clean up at only four.
Taxpayer dollars funded private schools. In a 4-3 decision that defied principles of accountability to taxpayers and students alike, the elected Republican justices of the state Supreme Court upheld a school voucher program that allows taxpayer dollars to fund tuition for private schools having virtually no obligation to provide North Carolina students with even a basic education. The program, enacted as part of the 2013 state budget, initially allowed the state to appropriate more than $10 million in public money to award qualifying low-income families $4200 per child for use at private schools. Those schools, which can range from religious schools with several students to a home school of one, are not subject to state standards relating to curriculum, testing and teacher certification and are free to accept or reject students of their own choosing, including for religious or other discriminatory reasons. Total funding for the voucher program has now increased to $17.6 million in FY 2015-16, and $24.8 million in FY 2016-17.
The state’s litigation tab kept growing. Turning back the clock doesn’t come cheap. The state legislature set aside $8 million to defend lawsuits challenging the litany of controversial laws passed by the Republican majority in recent years, according to the Associated Press – and that list of lawsuits keeps growing. The voting rights cases (four of those) and the redistricting cases (three of those) lead the expense list, but there’s also been several same-sex marriage cases, the private school voucher case, the appointments – commissions case, and the “Choose Life” license plate case – to name just a few others. And now we can add to those a recently filed challenge to the judicial retention law and another concerning the magistrate recusal law. Funds for litigation costs go to private counsel retained to represent state officials in court, typically the job of the Attorney General. In some instances though, Attorney General Roy Cooper has declined to represent the state in cases which his office has determined are indefensible. In other instances, Republican lawmakers retained private counsel even while Cooper was likewise defending the state, voicing concerns that he wouldn’t adequately represent their interests. According to Cooper’s office, the Attorney General has defended state laws in at least 15 cases and didn’t need the help of costly outside counsel. “Our office hasn’t requested that the General Assembly hire any of the private lawyers they’ve been paying, and we think it’s a waste of taxpayer dollars to pay outside lawyers to do the work we’re already doing,” Cooper’s spokesperson Noelle Talley said in a statement.
The Chief Justice ushered in an era of good feelings. In the first “State of the Judiciary” speech given to the General Assembly since 2001, newly-sworn Supreme Court Chief Justice Mark introduced lawmakers to the judiciary’s work during challenging economic times and urged them to appropriate more money to ensure the integrity of the state’s judicial system. “I’m asking for $30 million, because we need $30 million,” Martin told WRAL at the time, saying that that was the bare minimum needed to fund the judicial branch. He didn’t get that, but the General Assembly did start spending just a little more – enough to take away the embarrassment of, say, being unable to pay jurors. But money to move the judicial system fully into the digital age and employ enough staff to meet workload needs remains a pipe dream. Martin also forged ahead with plans to make the courts more open and friendly to the public, forming the North Carolina Commission on the Administration of Law to study ways to improve. He’s got his work cut out for him, since recent polling shows that many North Carolinians think the courts are politicized and treat state residents unfairly, especially minorities and the poor.