On today’s BradCast: Details on the extraordinary court ruling out of North Carolina on Monday, and the judicial coup being staged in West Virginia. But first, voters went to the polls for Tuesday’s primary elections in Arizona and Florida and in Oklahoma for primary runoff elections. It did not go well in Arizona. [Audio link to full show is posted below.]
Maricopa County (Phoenix)’s paper ballot optical-scan computer systems failed in at least 100 precincts, according to the County Recorder. Many polling places were closed entirely this morning, and it was nearly noon before the systems were said to finally be working in all precincts. It’s still unclear what the precise failure was, but the new County Recorder Adrian Fontes (who won his election after the previous, long-time Recorder was booted out for shutting polling places during the 2016 Primaries), tied it to pre-election tests that failed on Monday, and then a lack of contractors from the voting machine company (Dominion Voting) on hand to properly set up the systems before polls were to open today. “The contractor responsible for the voting machines was supposed to provide more than 100 technicians to assist with issues, but only 70 were available,” the Arizona Republic reports Fontes as telling them at a news conference this morning. If we learn more, of course, we’ll share it on tomorrow’s show along with noteworthy problems and results in all three states holding elections today.
Then, following up on a story that broke minutes before airtime on Monday, we’re joined today by Slate’s excellent legal reporter MARK JOSEPH STERN to detail the extraordinary ruling issued by a three judge federal court panel finding all of North Carolina’s U.S. House districts — for a second time — to be partisan gerrymanders in violation of the U.S. Constitution. Remarkably, the judges are considering ordering new maps to be drawn up before this November’s elections, after already having found last January that Republicans had unlawfully gerrymandered the state’s U.S. House districts. That ruling, however, was appealed to the U.S. Supreme Court which punted in June by ordering the lower court to review matters of standing. After having done so, the three-judge panel found the same Constitutional infirmities.
“The real villain here, in a sense — aside from the Republicans, who obviously drew these incredibly gerrymandered maps — is the Supreme Court and Justice Anthony Kennedy,” says Stern. “A virtually identical ruling came down in January, at which point the US Supreme Court could have and should have acted on this question of partisan gerrymandering. Instead, the Supreme Court punted [and] sent this case back down for reconsideration. Now the [lower] court has reached the same conclusion it did in January.”
The map in question was the one drawn up in 2016 after the state’s previous GOP-drawn map, used in 2012 and 2014, was found to have been an unlawful racial gerrymander. So, Stern explains, the federal judges in North Carolina seem to have had enough and may now order new maps “on this incredibly compressed timetable where the election is looming” in just over 70 days, ballots need to go out to overseas voters 45 days in advance, and the state’s primaries were already been held in May.
The unconstitutional maps have resulted in a wildly unbalanced 10 to 3 GOP majority in the state’s Congressional delegations, despite North Carolina’s status as a very divided swing state which narrowly elected Obama in 2008, Trump in 2016, and a Democrat to be its Governor in that same election. If the matter is appealed to SCOTUS by the state (as it almost certainly will be), the Supremes could deadlock 4 to 4, if Justice Kennedy’s seat has yet to be filled, and the lower court ruling would stand. We could be in for a lot of chaos ahead (as if we need any more this year.)
Stern also explains the astonishing situation in West Virginia, where that state’s Republican-majority House of Delegates recently impeached all four sitting members of the state’s Supreme Court. (Its 5th member had already resigned after been charged with a felony crime.) The move, Stern reports, was timed in such a way to avoid allowing voters to replace the justices at the ballot box this year. That means the previously 3 to 2 Democratic-leaning court may soon become a 5 to 0 Republican court, and stay that way through 2020. Following impeachment trials of the justices in the state Senate, any vacancies will be filled by the appointments of Trump-loving Republican Gov. Jim Justice, a Democrat when he ran and won the Governor’s race in 2016, but who flipped parties shortly thereafter.
“There are no good guys, per se, in this story,” Stern notes. However, it serves as yet another example of Republicans blatantly hoping to pack the courts, and could prove to be another useful example that Democrats could cite in the future. If they ever re-take control of the U.S. House, Senate and White House, they’ll be able to cite such moves when and if they decide to move to add seats to the U.S. Supreme Court in order to restore a majority that should have been theirs, until Senate Republicans stole a vacant seat in 2017 after holding it open for nearly a year following the early 2016 death of Justice Antonin Scalia.
Speaking of that stolen U.S. Supreme Court, Stern also offers his thoughts on whether Senate Democrats will be able to block — or even stall — the seating of Donald Trump’s second nominee to the Court. Judge Brett Kavanaugh’s Senate Judiciary Confirmation hearings are currently scheduled to begin next week and, Stern argues, “he owes an explanation as to why he thinks it’s perfectly valid and legitimate and acceptable to be nominated by a racist and openly corrupted President to the Supreme Court.”
Finally, we’re joined by Desi Doyen for our latest Green News Report on, among other things, the record rainfall in Hawaii following Hurricane Lane over the weekend, and the complicated climate legacy of the late Republican U.S. Senator and former GOP Presidential nominee, John McCain.
(And, on a related note, next week will be our 900th episode of the GNR! If you have not contributed lately to our efforts to continue connecting the climate change dots over your public airwaves for the past 10 years — along with all else that we do — please consider doing so now by stopping by BradBlog.com/Donate! Thanks! We rely only on you to keep going! But, don’t do it for me! Do it for Desi! Pretty please?)
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In it’s decision, the 3-judge District Court panel in Common Cause v. Rucho has given the NC General Assembly until September 17 to submit a new map. It will appoint a Special Master to draw up an alternative map.
It posited the prospect of turning the November 6 election into a primary and scheduling a run-off before the new Congress is to be seated.
Former Solicitor General Paul Clement told Rick Hasen that the NC GOP plans to seek an emergency Supreme Court stay.
Hasen believes there’s a possibility that the Court would deadlock, 4-4, in which case, the new map would control for the 2018 election. But he also believes there is a possibility that “Justices Breyer and Kagan could agree that it is too late.”
One intriguing feature, not mentioned by Hasen, is that, as a result of the now final decision in Covington vs. North Carolina, which struct down NC’s racially gerrymandered map that had previously entrenched the GOP in the NC General Assembly, this year’s midterm election could end GOP control of the state legislature.
If that happens, a Democratic-controlled General Assembly and a Democratic Governor could withdraw the SCOTUS appeal and draw up a new Congressional map for 2020.
Elections have consequences, especially decennial elections. In 2010, for the first time in more than a century, Republicans won a majority in both Houses of the NC General Assembly.
They parlayed control over redistricting in 2011 to gerrymander super majorities in the General Assembly and in its Congressional delegation even in elections where, statewide, the GOP received less than 50% of the vote.
They also passed what the unanimous U.S. 4th Circuit Court of Appeal described as a comprehensive GOP voter suppression law, which had been drafted with “surgical precision” in order to deprive African-Americans of their right to vote.
If democratic accountability is to be restored, the good citizens of North Carolina need to turn out in droves during the 2018 and 2020 elections and vote these rascals out of office.
The successful plaintiffs have asked that the court refrain from changing the map for the November 2018 election.