New poll shows just how little North Carolinians know about what they’ll be voting on

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If North Carolinians are even aware that they’ll have the chance to vote on changes to the state constitution this November, there’s a good chance they’ll still be confused about what they’re being asked to approve.

A new poll from Elon University asked registered voters around the state about the six proposed constitutional amendments that will be on the ballot this year. The result: Most people don’t know much about the amendments, and in some cases people think the amendments would have the opposite effect of what they would really do.

“It seems to me that a lot of voters are going to be making a permanent decision that could impact North Carolina for decades to come, based on pretty limited information,” said Jason Husser, the director of the Elon Poll.

While a small majority of the voters polled did know that there will be constitutional amendments on the ballot this November, almost none claimed to know “a lot” about what the amendments will do if they pass.

Although 89 percent said they plan to vote in November, just 56 percent knew there will be amendments on the ballot — and only 8 percent said they’ve heard a lot about what the amendments would do.

John Dinan, a Wake Forest University political professor who is an expert on state-level constitutional amendments, said the results aren’t surprising.

“It’s normal for there to be a lot of undecided voters, at least at the beginning of the campaign,” he said. “That means there’s also a lot of opportunities to educate voters.”

Voters go to the polls on Nov. 6.

Amendments on the ballot

For those who would like more information, here’s a brief recap of the six amendments:

Voter ID: Create a requirement to show a photo ID to vote. The exact details are a mystery, however, since the General Assembly has not yet written the actual law that would be enacted if this amendment passes. North Carolina’s last attempt to create a voter ID law was ruled unconstitutional in 2016.

Income tax cap: The state’s current income tax rate is 5.499 percent, and that won’t change no matter what happens with this amendment. Instead, the amendment would lower the maximum possible rate that state income taxes could be raised to in the future, from 10 percent to 7 percent.

Changes to elections board: The board has four Democrats, four Republicans and one politically unaffiliated person. This amendment would remove the ninth — and potentially tiebreaking — vote and leave the board equally split with eight members. It would also transfer power to pick board members from the governor to the legislature.

Changes to judicial appointments: When judges die, quit or retire, the governor appoints a new person to take over until the next election. This amendment would take that power away. In some cases it would be up to the chief justice of the state Supreme Court, and in other cases the amendment would require the governor to select an appointee from a list provided by the state legislature.

Hunting and fishing: This amendment is broadly worded to re-affirm the rights of people to hunt and fish. It’s not entirely clear if it would make any actual changes to North Carolina law.

Marsy’s Law: This amendment would give additional rights to crime victims and is part of a national push to do so.

All six amendments were written by the Republican-controlled General Assembly, and the North Carolina GOP is asking people to vote in favor of all six. Meanwhile, the N.C. Democratic Party is asking people to vote against all six.

Dinan, however, said it’s possible that in November voters will approve some and deny others. While North Carolina does not have a history of frequently amending its constitution, he said, there are lessons to be learned from other states that do.

“Voters have been known to make distinctions,” he said. “We have states that have six amendments on the ballot on a regular basis, and voters will say ‘Yes’ to these four and ‘No’ to these two.”

For North Carolina Democrats in 2018, some amendments are more controversial than others.

No one challenged the hunting amendment or the victims’ rights amendment in court, and in the General Assembly both passed with support from Democrats as well as Republicans.

On the other hand, the amendments changing the board of elections and judicial appointments amendments drew a lawsuit from Democratic Gov. Roy Cooper. And the amendments about voter ID and the income tax cap drew a lawsuit from the NAACP and environmental groups. However, both Cooper and the NAACP were handed losses on Tuesday by the N.C. Supreme Court.

By Will Doran/nando
Posted by The NON-Conformist
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What’s the future for NC’s Confederate statues?

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This is from August of last year but a reminder of how the Republicans play chess while the Democrats play checkers.

While cities around the South are talking about removing Confederate monuments in light of the violent white nationalist rally in Charlottesville, Va., statues in North Carolina are protected by a 2015 state law.

Former Republican Gov. Pat McCrory signed the law that prevents removing, relocating, or altering monuments, memorials, plaques and other markers that are on public property without permission from the N.C. Historical Commission.

The law protects statues from removal by officials, but protesters pulled down a Confederate statue at the old Durham County courthouse Monday.

State legislators passed the law as protests over a Confederate statue on UNC-Chapel Hill’s campus called Silent Sam were hitting a peak.

The bill protecting monuments passed the Senate unanimously.

By the time the House debated it, white supremacist Dylann Roof had murdered nine African-American worshipers in a Charleston, S.C., church. The law won final approval after the murders and amid a national debate about Confederate symbols. By that time, some House members were vigorously opposing the bill.

White nationalists in Charlottesville were protesting city plans to remove a statue of Gen. Robert E. Lee when they clashed with counter-protesters. A car ran into a crowd of people, one woman died and dozens were injured.

North Carolina has more than 200 Civil War memorials, statues and markers, according to Commemorative Landscapes of North Carolina, a project of the UNC-Chapel Hill Library. Most of the 54 statues and 20 memorials honor Confederates.

Rep. Graig Meyer, a Hillsborough Democrat who urged House members to defeat the bill, said Monday that because it became law, residents are stuck with Confederate monuments even if they want them gone.

“We have a long-standing dispute over Silent Sam on the university campus,” he said. “It has given us lots of chances for dialogue about history.

“Sometimes, dialogue has to lead to action. In our community, the vast majority of people would like to get rid of that monument and build something that is a better contextualized representation of our shared racial history.”

Sen. Tommy Tucker, the Waxhaw Republican who co-sponsored the law, still supports it.

“The reason it was passed was to protect history,” Tucker said. “I don’t have any misgivings about having the bill passed. Monuments can stand where they have been for 150 years or more.”

Meyer said removing Confederate statues, which he called “monuments to a racial hierarchy,” isn’t going to make people forget the Civil War.

Confederate monuments around the Triangle, including the memorial outside the former Durham County courthouse, Silent Sam, and the Confederate Women’s monument at the State Capitol were vandalized in July 2015.

Groups defending the Confederate flag and supporting Silent Sam rallied around the statue at UNC-Chapel Hill in October 2015. Representatives said it was important to show support for the monument even with the law protecting it. The ralliers were met by counter protesters.

Rep. Garland Pierce, a Laurinburg Democrat and former head of the Legislative Black Caucus, voted against the law in 2015, but said Monday that trying to change or repeal it would draw too much attention.

“History is history, whether it be positive or negative,” Pierce said. “History tells our story.”

Over the last few days, mayors of Baltimore and Lexington, Kentucky, have said they want Confederate statues in their cities removed.

By Lynn Bonner/NewsandObserver
Posted by The NON-Conformist

As transgender rights case goes back to court, N.C. second-grader questions bathroom restrictions

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A federal judge will hear arguments on Monday, June 25, 2018, over the North Carolina law that replaced House Bill 2, the controversial bathroom bill. N.C. lawmakers want the case dismissed. Transgender residents say the new law is discriminatory.
A federal judge will hear arguments on Monday, June 25, 2018, over the North Carolina law that replaced House Bill 2, the controversial bathroom bill. N.C. lawmakers want the case dismissed. Transgender residents say the new law is discriminatory. Toby Talbot AP

More than a year has passed since North Carolina repealed controversial House Bill 2 and replaced it with a new law that does not dictate which bathrooms transgender people must use in state buildings.

Then in October, Gov. Roy Cooper announced that transgender people could use public bathrooms that correspond with their gender identity if the facilities are under control of the executive branch. The announcement was part of a proposed settlement of a lawsuit borne out of a challenge to HB2.

That settlement proposal and new arguments over the law that replaced HB2 — House Bill 142 — will be taken up in a federal courtroom on Monday, including new questions about a New Hanover County second-grader and prohibitions against her restroom use in school.

U.S. District Judge Thomas Schroeder will preside over the new legal battles simmering over the 7-month-old settlement proposal.

North Carolina lawmakers have argued that the original plaintiffs don’t have standing in the case after the repeal of HB2, and they question whether the court has the authority to enter the consent decree negotiated by Cooper.

HB2 had required people in government facilities to use bathrooms matching the gender on their birth certificates, and it blocked a Charlotte ordinance that added anti-discrimination protections for LGBT people.

House Bill 142 created a moratorium on local nondiscrimination ordinances through Dec. 1, 2020. And it left regulation of bathrooms, showers and changing facilities to state lawmakers, not the universities, community colleges, local school systems and other state agencies that had been setting their own policies.

Lawmakers contend HB 142 no longer regulates the original challengers of HB2 — a transgender man who works at UNC-Chapel Hill, a lesbian law professor at N.C. Central University, a transgender man who was a student at UNC-Greensboro, a transgender teenage girl who was a student at the UNC School of the Arts and a lesbian couple in Charlotte.

The replacement law is directed at state agencies and local governments, lawmakers contend, and any contentions by the LGBT community of harm and discrimination are speculative.

“Even if they come to pass, the time, place, factual circumstances, applicable trespass or other legal rules, and private and government actors involved — all are unknown,” said Kyle Duncan, a Washington-based attorney representing Senate leader Phil Berger, a Rockingham County Republican, and House Speaker Tim Moore, a Cleveland County Republican.

But when the replacement law was adopted, LGBT advocates argued that it left transgender people in North Carolina without discrimination protections after HB2 put them in the middle of a contentious and high-profile political debate that was monitored across the United States and abroad.

As that debate roared, companies that had been looking at bringing jobs to North Carolina abandoned those plans, and the NBA, NCAA and Atlantic Coast Conference threatened to move their major sporting events to other states.

Though the replacement law stemmed some of those impacts, it fell short of satisfactory for Quinton Harper, a 32-year-old community organizer in Carrboro and advocate for people living with HIV.

Harper decided last year to join the lawsuit that will be discussed in court on Monday because he thinks HB 142 keeps a distressing environment in place.

“North Carolina is sending a message to LGBT people like me that we are not welcome here, that we are not deserving of protection from discrimination, and that we are not equally valued members of our communities,” Harper said in a statement last year when the ACLU amended the lawsuit to reflect the repeal of HB2 and the change in the executive branch from Republican Gov. Pat McCrory to Cooper, a Democrat.

Supporters of HB2 and rules surrounding bathroom use in state and government buildings characterize them as necessary to protect privacy in restrooms, locker rooms and showers, particularly at public schools.

They argue that children should be protected from confronting a person of the opposite sex in such situations.

Issues in a New Hanover County school

In court documents filed with the lawsuit this month, the ACLU, one of the groups representing the challengers, brought a new voice into the debate.

A New Hanover County mother and member of the ACLU of North Carolina contacted the organization in January 2018 with concerns about what her second-grader was experiencing in the New Hanover County school district.

The woman’s daughter is transgender, has been diagnosed with gender dysphoria and, as part of her treatment, has been advised to live as a female in all aspects of her life, according to the ACLU request to amend the lawsuit to include the second-grader.

“Despite having a letter from her daughter’s treating clinician indicating that her daughter should be allowed to live in accordance with her gender identity, the school bars (the woman’s) daughter from using the girls’ restroom because she is transgender,” Chris Brook, legal director of the ACLU of North Carolina, and attorneys from Lambda Legal stated in that court document.

The school told the child she could use the nurse’s restroom or the restroom in the teachers’ lounge, according to the court filing.

“She uses neither, because she feels humiliated and singled out as different for being the only student forced to use those restrooms,” the filing states. “When she has used the boys’ restroom, she has been confronted by other students who told her she was not supposed to be there.”

The second-grader asked to be allowed to use the girls’ restroom after the experience but was told that officials’ interpretation of HB 142 meant it was illegal for them to let her use those facilities.

“She continues to use the boys’ restroom while at school, exposing her to hostility, anxiety and humiliation,” Brooks and the other attorneys said.

The woman has noticed that her daughter avoids using any restroom during the day, which can lead to a rush to get home and occasionally accidents in the car.

By Anne Blythe/NewsandOberver
Posted by The NON-Conformist

Supreme Court sends NC partisan gerrymander case back for more arguments

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The U.S. Supreme Court sent the North Carolina case challenging the 13 congressional districts as partisan gerrymanders back on June 25, 2018, to the lower court for further hearings. Jessica Gresko AP Photo

The U.S. Supreme Court won’t immediately take up arguments about whether North Carolina Republican lawmakers went too far in 2016 when they redrew the state’s 13 congressional election districts to intentionally give their party a 10 to 3 advantage.

In an order released Monday, the high court sent the case back for further hearing in light of its decision in a Wisconsin case last week.

That means the challengers will have to persuade the three-judge panel that struck down the congressional districts as unconstitutional partisan gerrymanders that a voter in each district suffered harm.

The North Carolina case has some similarities to the Wisconsin case and a Maryland partisan gerrymander case that also was sent back to a lower court last week for further proceedings.

But North Carolina’s case has one prominent difference.

State Rep. David Lewis, a Harnett County Republican, announced the party’s intention for drawing the election districts that would be used for voters to elect their congressional delegation.

“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with eleven Republicans and two Democrats,” Lewis said at the time.

The redrawing occurred because the federal courts found that the redistricting plan drawn by Republicans in 2011 contained unconstitutional racial gerrymanders that weakened the influence of black voters.

Challengers hope to get the case back before the Supreme Court in time to affect the districts used in the 2020 election, said Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice.

“While it’s unfortunate that the U.S. Supreme Court decided not to hear this case right away, we are optimistic that the lower court will recognize, like they did in January, that North Carolina’s partisan gerrymandering is so egregious that it is unconstitutional and that our clients are the appropriate parties to be raising such claims,” Riggs said in a news release.

North Carolina has been described as one of the most gerrymandered states, and over the past seven years voters have chosen elected officials for the General Assembly and U.S. Congress from election districts that were later struck down by the courts as either racial or partisan gerrymanders.

North Carolina’s contorted history of congressional redistricting

Federal judges recently ruled that Republicans unconstitutionally gerrymandered two North Carolina congressional districts by race. But redrawing districts to benefit the political party in power is nothing new and has been going on for years.

Nicole L. Cvetnic and Patrick Gleason McClatchy

In an era in which mapmaking tools make it possible to draw election districts that pick up one house in a neighborhood while leaving another out, critics say the party in power is choosing voters for the candidates instead of the way the constitution intended.

There have been calls in North Carolina for the creation of a redistricting process to be done outside the political realm, but no legislation requiring that has been approved.

Concerned voters have looked to the U.S. Supreme Court for guidance.

Many consider Justice Anthony Kennedy to be the swing vote.

In a 2004 case from Pennsylvania, Kennedy was looking for a “limited and precise rationale … to correct an established violation of the Constitution in some redistricting cases.”

Though he did not find one in that case, he signaled his openness to striking down extreme partisan gerrymanders if the court could agree on a standard to do so.

In the Wisconsin partisan gerrymander case, in which the challengers asked the court to consider the state as a whole, the Supreme Court sent the case back saying the challenges must be brought district by district, with voters in each proving that their rights had been violated.

The Maryland case was sent back in an unsigned opinion that said the lower court hadn’t been wrong when it decided not to make the state redraw the maps in time for the 2018 election.

In response to the rulings in those cases, attorneys for North Carolina lawmakers filed a brief last week with the Supreme Court saying the case over the state’s congressional districts should be sent back to the lower court to further address questions raised in the Wisconsin case.

But attorneys for the challengers argued that no further hearings were necessary, that voters in each of the 13 congressional districts could and had shown harm.

By Anne Blythe/NewsandObserver
Posted by The NON-Conformist

NC congressional districts struck down as unconstitutional partisan gerrymanders

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A panel of federal judges struck down North Carolina’s election districts for U.S. Congress on Tuesday as unconstitutional partisan gerrymanders and gave lawmakers until Jan. 29 to bring them new maps to correct the problem.

The ruling comes in cases filed by the League of Women Voters and Common Cause in North Carolina stemming from maps adopted in 2016 during a special legislative session. It throws a new wrinkle and more uncertainty into the 2018 election cycle in North Carolina a month before candidates were scheduled to file for office.

“We’re enormously gratified on behalf of our clients and all voters in North Carolina that no one will have to endure another congressional election under an unconstitutional map,” said Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice, which represented some of the challengers. “The court was clear in demanding a real remedy before the 2018 elections, and we expect the General Assembly to respect that order.”

The judges – James A. Wynn, a Barack Obama appointee to the 4th U.S. Circuit Court of Appeals, and federal district judges W. Earl Britt, a Jimmy Carter appointee, and William L. Osteen Jr., a George W. Bush appointee – were unanimous that North Carolina lawmakers under Republican leadership violated the U.S. Constitution’s equal-protection clause when they drew maps explicitly to favor their party.

“On its most fundamental level, partisan gerrymandering violates ‘the core principle of republican government . . . that the voters should choose their representatives, not the other way around,’” the majority opinion states.

The ruling is the first time federal judges have struck down congressional districts as partisan gerrymanders. A Wisconsin case that was argued before the U.S. Supreme Court involved state legislative districts found to be partisan gerrymanders.

In North Carolina, Wynn and Britt also found that the 2016 redistricting plan designed to give Republicans wins in 10 of the 13 districts also violated the free speech of the challengers by trying to weaken the voices of Democrats with whom they did not agree. Osteen dissented from his colleagues on that point, but agreed overall that the maps were unconstitutional.

In the words of Rep. Lewis

The lawmakers, Wynn wrote in the opinion for the majority, “do not dispute that the General Assembly intended for the 2016 Plan to favor supporters of Republican candidates and disfavor supporters of non-Republican candidates. Nor could they. The Republican-controlled North Carolina General Assembly expressly directed the legislators and consultant responsible for drawing the 2016 Plan to rely on ‘political data’ — past election results specifying whether, and to what extent, particular voting districts had favored Republican or Democratic candidates, and therefore were likely to do so in the future — to draw a districting plan that would ensure Republican candidates would prevail in the vast majority of the state’s congressional districts.”

During the legislative session in which the maps were drawn, Rep. David Lewis, a Harnett County Republican who has shepherded the state’s recent redistricting efforts, announced that the maps were drawn to give Republicans a large majority. Lewis made his comments after the federal court found congressional districts drawn in 2011 to include unconstitutional racial gerrymanders. In announcing the new maps, Republican lawmakers stated that the race of voters would not be considered in the design of the new districts.

“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with eleven Republicans and two Democrats,” Lewis said at the time.

At the time, the courts had allowed for some partisan consideration in redistricting, which happens every 10 years after the census shows population shifts. But voting rights organizations have pushed for changes to that, saying modern mapmaking technology has allowed candidates for elected office to choose their voters under new redistricting plans instead of letting voters choose who represents them.

The comment by Lewis has provided the underpinnings for a lawsuit that sets North Carolina apart from other partisan gerrymander challenges. The Wisconsin case before the Supreme Court relies more heavily on a proposed statistical formula called “the efficiency gap,” which counts the number of votes wasted when voters are shifted into districts where their votes won’t matter, either because their party’s candidate can’t win or is already sure to win.

The North Carolina challengers argue, like the challengers in Wisconsin, that the maps drawn discriminate against Democratic candidates and voters because of their political beliefs. They say the lawmakers who either “packed” them into a single district or “cracked” their district into multiple districts to weaken their influence are robbing them of free speech and equal protection rights because their opinions differ from the lawmakers in power.

Republicans contend that such arguments and formulas are not for the courts to decide – that redistricting is a legislative duty in North Carolina.

The lawmakers, Wynn wrote, “do not argue – and have never argued – that the 2016 Plan’s intentional disfavoring of supporters of non-Republican candidates advances any democratic, constitutional, or public interest. Nor could they. Neither the Supreme Court nor any lower court has recognized any such interest furthered by partisan gerrymandering – ‘the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.’”

Appeal to U.S. Supreme Court coming

News of the ruling brought quick applause from Democrats and swift criticism from Republicans.

Legislative leaders plan to appeal to the U.S. Supreme Court, according to a spokeswoman for Mitchell County Republican state Sen. Ralph Hise, who along with Lewis has led redistricting efforts in the legislature.

Eric Holder, who served as attorney general under Obama and now is chairman of the National Democratic Redistricting Committee, said in a statement that the ruling “was just the latest example of the courts telling state legislators in North Carolina that citizens should be able to pick their representatives, instead of politicians picking their voters. It’s long past time for the legislature to produce fair maps that represent the diverse communities of North Carolina.”

“Republicans comprise 30 percent of registered voters in North Carolina, yet they crafted a congressional map that would ensure Republican success in 10 of 13 districts, or 76 percent,” U.S. Rep. G.K. Butterfield, a Democrat from Wilson, said in a statement. “The Republicans made this case relatively simple when they admitted in court that the congressional map was drawn for partisan political advantage.”

U.S. Rep. David Price, a Democrat from Chapel Hill, also praised the ruling. “No state has suffered more than North Carolina from extreme partisan gerrymandering by Republicans – both after the 2010 census and in 2016, after their first map was ruled an unconstitutional racial gerrymander. But the current map is still designed to produce a 10-3 Republican advantage among congressional districts, in a state that is equally divided politically,” Price said in a statement in which he described the ruling as one with “national implications.”

‘Partisan war on North Carolina Republicans’

Dallas Woodhouse, executive director of the North Carolina Republican Party, sent out a tweet criticizing Wynn. “It is incredibly disappointing activist Judge Jim Wynn is waging a personal, partisan war on North Carolina Republicans,” Woodhouse said on Twitter.

Dallas Woodhouse@DallasWoodhouse

It is incredibly disappointing activist Judge Jim Wynn is waging a personal, partisan war on North Carolina Republicans. #ncpol#ncga

Wynn has been on a panel of federal judges that has ruled against the state in other redistricting cases that found districts to be unconstitutional racial gerrymanders and who wrote a critical opinion striking down a 2013 election law overhaul and voter ID law, saying it with near “surgical precision” targeted African-American voters, who often support Democrats.

Woodhouse added to his tweet later: “It is Now very clear that Judge Wynn has decided that @ncgop should not be allowed to draw election districts under any circumstances under any set of rules. This is a hostile takeover of the #NCGA and legislative bodies across the U.S.”

North Carolina Democratic Party Chairman Wayne Goodwin called the ruling a “major victory for North Carolina and people across the state whose voices were silenced by Republicans’ unconstitutional attempts to rig the system to their partisan advantage.”

“Republicans have shown time and time again they are more interested in drawing themselves into power than representing the best interest of their constituents,” Goodwin said in a statement. “It’s time the General Assembly put partisanship aside and draw fair, non-partisan maps that give North Carolina voters a voice.”

By Anne Blythe/News&Observer

Posted by The NON-Conformist

GOP-drawn districts not much better than before

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As he does so often, Bob Phillips, head of Common Cause in North Carolina, had it exactly right with his comments on some pitiful, harshly partisan legislative districts as redrawn by Republican lawmakers, or rather by their hired consultant.

Made necessary by federal court rulings that found some of their 2011 districts to be racially gerrymandered, the new maps – likely in a drawer for some months while the court cases played out – continue to skew districts toward Republicans. That was entirely expected, since the rules for new maps the GOP leaders made for themselves allowed partisan consideration and voting patterns to be used in the new districts. Phillips, long an advocate of nonpartisan redistricting – done after every 10-year census – said GOP lawmakers blew a “golden opportunity to adopt fair, nonpartisan standards” for districts. Instead, he found “partisanship at the core,” and that’s right.

Making things worse is that by calculation, GOP leaders have offered the public a very limited amount of time to comment and offer input on the maps. In reality, of course, Republicans couldn’t care less about what the public thinks, which is the point of not allowing them time to offer their own opinions. If they did, they’d likely state the obvious: Why not form a nonpartisan redistricting commission to draw new maps and avoid what has been a huge public expense as Republicans have tried to defend the indefensible in federal court, to no avail?

Now, of course, Republicans are taking a chance that their maps will again be found to be gerrymandered in the extreme by the courts, at which point the courts would come in and draw the maps.
This story has been like the maps themselves – twists and turns and misdirection and confusion that do no favors for the fair democratic process in which people should vote for their representatives based on geographical good sense and competing ideas, not on ridiculously-drawn districts designed to give Republicans an advantage in keeping control of the General Assembly. If Republicans believe so strongly in their ideas, they should not fear a fair competition. But they do.

BY THE EDITORIAL BOARD/News&Observer
Posted by The NON-Conformist

‘NC is the only state where no doesn’t mean no’: Court case ruled women can’t back out of sex

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On the evening of May 16, 1977, Beverly Hester was assaulted.

But the North Carolina Supreme Court declared that under the law, it wasn’t rape if Hester told the man to stop after – not before – sex began.

Hester testified in court that the man who assaulted her, Donnie Leon Way, threatened to beat her if she didn’t have sex with him. According to a summary included in the N.C. Supreme Court Decision, State v. Way, Hester said Way asked her out on a date. They went with another couple to a friend’s apartment, and Way asked Hester to go upstairs “because he had something to show her.”

She went with him to a bedroom upstairs. He shut the door. Then he tried to take off her pants. She said no. But Way wouldn’t stop.

He told her that he would beat her if she didn’t take off her clothes and have sex with him, she said. When she tried to leave, he allegedly hit her in the face. She said she took off her clothes because she was scared of him.

Hester told the court she tried to call for help, but the music was too loud. She said that Way told her her “head would be through the wall” before her friend could get to her. And then he threatened to hit her again, she said. He told her he would kill her. She said she begged him to stop.

Way was convicted of second-degree rape, because the judge told the jury that a woman could revoke her consent. But the N.C. Supreme Court disagreed, upholding a state law that it wasn’t rape if a woman consented at any time, even if she said no after intercourse began. Way’s rape conviction was thrown out, and he was given a new trial.

Ever since that 1979 case, North Carolina has said that once a woman says yes to sex, she can’t change her mind once it’s started. The State v. Way case set a precedent – ruling that a woman cannot revoke consent after intercourse begins, meaning that even if a woman said “no,” the intercourse would not be ruled rape.

The Supreme Court ruled that “if actual penetration is accomplished with the woman’s consent, the accused is not guilty of rape, although he may be guilty of another crime because of his subsequent actions.”

Because of the 38-year-old ruling, women in North Carolina who allegedly agree to sex but change their minds or say “no” during intercourse aren’t protected by laws against rape.

State Sen. Jeff Jackson of Mecklenburg County thinks that’s absurd.

“Legislators are hearing more and more about women who have been raped and are being denied justice because of this crazy loophole,” Jackson told The Fayetteville Observer. “North Carolina is the only state in U.S. where no doesn’t mean no.”

And Hester’s case in 1977 is far from the only example. Women across North Carolina have been left with little recourse after rape or assault, including Aaliyah Palmer, 19, who allegedly agreed to sex with a man at a party, but changed her mind when he turned violent.

“If I tell you no and you kept going, that’s rape,” Palmer told The Fayetteville Observer.

Amy Guy, of Wake County, told WRAL that her estranged husband showed up drunk to her apartment in December, demanding sex.

“Since he was getting angry, I figured it would be better to go ahead and agree to the sex because I figured that was the safer thing for me to do,” she said.

But he turned violent, and wouldn’t stop even though she begged him to.

Her estranged husband, Jonathan Wayne Guy, initially was charged with second-degree rape, but because of the Supreme Court decision in State v. Way, the charges were lowered to misdemeanor assault on a female. Guy pleaded guilty and is serving a 10-month sentence.

“I was devastated,” Amy Guy told WRAL. “I didn’t understand how that could be because I knew I had been raped. I don’t understand how the law can say that I wasn’t.”

State law does not define consent or require either party to procure it prior to sexual activity. In North Carolina, first-degree rape must be vaginal intercourse by force with the threat or reality of violence, indicating that an encounter must be violent in some way before it would be considered first-degree rape in North Carolina. The law does not account for rape of men or boys.

Jackson is sponsoring Senate Bill 553, which would make it a crime to continue intercourse after a woman revokes consent.

The “Revoke Consent for Intercourse” bill would amend current law so that “a person who continues to engage in intercourse after consent is withdrawn is deemed to have committed the act of intercourse by force and against the will of the other person.”

The law specifically mentions the withdrawal of consent for vaginal intercourse. It would make it a crime to have sex with a woman after she has revoked consent, though it makes no mention of protections for men who revoke consent.

The bill now rests in the Senate’s Rules Committee, where Jackson said it likely will be dead for the remainder of the two-year legislative session.

Jackson filed a similar bill with two Republican co-sponsors in 2015.

“There’s no reason for this to be partisan,” Jackson told The Fayetteville Observer. “It’s about doing what’s obviously right.”

While North Carolina may be the only state where women explicitly can’t withdraw consent after sexual intercourse has begun, most other states see this as a gray area, according to a Broadly report. Only South Dakota, Connecticut, California, Illinois, Maine, Maryland, Kansas and Minnesota affirmatively recognize that consent can be withdrawn at any time during sex; Illinois is the only state that’s made it law.

For information on North Carolina rape crisis centers or to find one in your area, go to www.nccasa.org/need-help/nc-rape-crisis-centers.

BY ABBIE BENNETT/NewsandObserver
Posted by The NON-Conformist

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