Weekly Legislative Update

North Carolina

By Betsy Bailey & Victor Barbour
December 5, 2022

Voters Approve $4.8 Billion in Local Bond Referenda

On November 8, NC voters in16 counties and municipalities approved bond referenda totaling almost $4.8 billion.  The election results have been certified and the results were presented to the Local Government Commission at their December 6th meeting.  A list of the approved referenda is attached here.

Moore County Power Outage

Gov. Roy Cooper on Monday condemned the sabotage of electrical substations in Moore County that left thousands without power as a “criminal attack” and said the incident represented a new kind of threat for officials to deal with.

“Protecting critical infrastructure like our power system must be a top priority. This kind of attack raises a new level of threat,” Cooper said during a press conference Monday afternoon. “We will be evaluating ways to work with our utility providers and state and federal officials to make sure we harden our infrastructure where that’s necessary, and work to prevent future damage.”

Cooper spoke to reporters after meeting with state and local officials who are working on restoring power to tens of thousands of residents and investigating the attack on the two substations that were damaged by gunfire Saturday evening. He said he visited one of the damaged substations earlier in the day, and thanked Duke Energy employees for working “around the clock” to repair and replace the electrical equipment.

While the power restoration effort is underway, Cooper said, officials are focused on helping residents get through the next few days. “Helping the vulnerable people and the places where they live, including adult care homes, is a priority,” Cooper said. “Making sure that people are warm as the night approaches, making sure people are cared for, making sure that critical services at hospitals, at law enforcement, at emergency management services are supported and available — all of that is crucial.”

Earlier, White House Press Secretary Karine Jean-Pierre said during a press briefing that the White House was monitoring the situation and would provide local officials with “any assistance needed on the ground to help them.”

On Sunday, Moore County Sheriff Ronnie Fields said power outages began after 7 p.m. and proceeded to spread across central and southern Moore County. As of midday Monday, more than 33,600 homes and businesses remained without power, The News & Observer reported.

Jeff Brooks, a spokesperson for Duke Energy, said Monday morning the utility company was able to restore power to about 7,000 customers by Sunday night, but that it may take until as long as Thursday to restore power to the majority of customers, as the company tries to replace equipment “that is a little more complex to complete.” Brooks reiterated that assessment of the timeline to restore power Monday afternoon, noting that some equipment would need to be transported to the area and installed safely before power could resume.

In the meantime, to assist the community while the power is out, Duke Energy has pledged an initial commitment of $100,000 to the Red Cross and other organizations, he said.

Officials continued on Monday to provide updates and issue statements on the attack on the substations. “Violence of any kind is unacceptable, and law enforcement is absolutely dedicated to getting to the bottom of what happened in Moore County,” N.C. Attorney General Josh Stein said in a statement. Laura Brewer, a spokesperson for Stein, said his office has been in contact with Duke Energy and law enforcement to receive regular updates. Brewer also noted that since the county has declared a state of emergency, the state’s price gouging law is in effect.

An official at the Department of Homeland Security said the Cybersecurity and Infrastructure Security Agency is supporting the recovery effort as well. “Secretary Mayorkas has been briefed on the outages impacting residents in Moore County,” Assistant Secretary for Public Affairs Marsha Espinosa told McClatchy. “DHS will continue to share information with the FBI, and state and local authorities as the investigation unfolds. CISA leadership and regional teams have offered support to Duke Energy as they work to restore service.”

In a statement, U.S. Rep. Richard Hudson, who ran for reelection this year in a district that covers Moore County, and lives in Southern Pines, thanked Fields, local law enforcement, the State Bureau of Investigation and FBI for their quick response to the incident. On his website, Hudson’s office provided an update with resources, including information about a shelter at the Moore County Sports Complex.

Rep. Ben Moss, R-Montgomery, who also ran for reelection in a state House district that includes Moore County, said the attack was “reprehensible,” adding that the “responsible party needs to be prosecuted to the fullest extent possible.”

In recent years, cyber attacks on utilities and other public services have drawn plenty of attention, but state and federal officials have been worried about physical attacks too. An attack on a substation near San Jose in 2013 prompted a congressional hearing about power grid vulnerabilities. Shooters with an assault rifle fired 150 rounds into the Pacific Gas and Electric substation, CNN reported. PG&E avoided disruptions by rerouting power, but the repairs took nearly a month.

Later that year, an Arkansas man set fire to a substation, pulled down a power line and damaged an electric tower in a series of attacks in the central part of the state that temporarily left 9,000 people without power. Federal officials said the attacks caused more than $4.5 million in damages. Jason Woodring, 46, pleaded guilty to federal charges and received a 15-year sentence. He told a judge he saw it as a way to cause an emergency that would bring people together, The Arkansas Democrat-Gazette reported.

Voter Turnout

While the state’s population boomed in the past decade, all that growth did not translate into increased voter turnout in this year’s midterm elections. Turnout this election cycle was lower than in 2018 despite a U.S. Senate race on the state’s ballot and claims by both political parties about the pivotal nature of these election results.

Democrats largely campaigned nationwide and in the state on how these elections will have repercussions on the future of reproductive rights and democracy, while Republicans rallied voters by blaming inflation and the negative economic outlook on Democrats.

Republicans in North Carolina ultimately took the larger share of wins. While the elections moved the state’s delegation in the House of Representatives from a split of eight Republicans and five Democrats to an even 7-7 split, Republicans won the state’s U.S. Senate race, flipped the state Supreme Court to a Republican majority and gained a supermajority in the state Senate while falling one seat short of a supermajority in the state House. (In 2018, there were congressional, judicial and state House and Senate races on the ballot but no U.S. Senate race.)

Statewide, there was a 51% voter turnout compared to a 52.9% turnout in 2018. Republican voters turned out at a higher rate than Democratic voters: 51.3% of Democratic voters cast a ballot, compared to 58.6% of Republicans.

In 2018, the gap was smaller: 54.5% Democratic voters turned out, compared to 58.2% of Republican voters. Those numbers are based on voter registration, and voters registered with a party may not vote for that party’s candidates. While voters registered as unaffiliated with any party in North Carolina continue to grow — surpassing the major parties this year as the largest bloc of registered voters — they turned out at a lower rate than in 2018. This year, 44.8% of unaffiliated voters cast a ballot, while 46.3% did in 2018.

Durham County, a blue stronghold, saw a lower Democratic turnout: 57.3% this year vs. 59.6% in 2018. Randolph County, a red stronghold, saw the same Republican turnout, 59.1% both years. Nash County, where voters have flip-flopped in their party preference, saw Republicans turn out more than Democrats this year. In 2018, 56.5% of Democrats turned out, compared to 62.2% of Republicans. In 2022, 51.2% of Democrats and 64.7% of Republicans turned out.

Minority voters, in particular Black voters, tend to lean Democratic. In North Carolina, a swing state, Democrats often rely on Black voters to boost their election margins and win races. Meanwhile, Republicans often get and rely on high white voter turnout. This year, Democrats hoped Cheri Beasley’s historic candidacy for the Senate would energize Black voter turnout, as previously reported by The News & Observer. Beasley lost the race to Republican Ted Budd. Had she won, she would’ve become the state’s first Black woman senator.

White voters had higher turnout: 58.3% in 2022 vs. 56.2% in 2018. Black voters had lower turnout: 41.9% in 2022 vs. 48.4% in 2018. Hispanic voters also turned out at a lower rate, 25.8% in 2022 vs. 35% in 2018. The state’s Hispanic population grew to over 1 million in the 2020 census. The same is true for Asian American voters: 39.1% turnout in 2022 vs. 44.2% in 2018.

Eastern North Carolina counties have a high percentage of Black voters, particularly counties such as Edgecombe, Halifax, Warren and Northampton, according to the 2020 census. All of these counties saw a decrease in Black voter turnout. Counties that have the highest number of Black registered voters are Durham, Mecklenburg, Wake, Guilford, Cumberland, Forsyth and Pitt counties. All of these also saw a decrease in Black voter turnout.

Western North Carolina counties have a higher percentage of white voters, particularly counties such as Ashe, Mitchell, Yancey, Madison and Haywood. Of these, Mitchell, Madison and Haywood saw a higher white voter turnout in 2022. Counties with the highest number of white registered voters are Mecklenburg, Wake, Guilford, Buncombe, Forsyth and New Hanover. All but Mecklenburg and Buncombe saw a higher white voter turnout in 2022 than four years earlier.

This year, statewide, young voters had lower turnout than in 2018, while older voters had higher turnout. There are more than 4.6 million registered voters over 41 and more than 2.8 million registered voters over 18 but under 41. Counties with the highest turnout by voters over 18 but under 25 were Orange, Yancey, Graham and Alleghany. Voters over 66 turned out the most in Chatham, Orange, Alleghany and Alexander counties.

On the flip side of engagement, Onslow, Hertford, Robeson and Cumberland counties saw the lowest turnout among voters under 25, while Halifax, Robeson, Anson and Gates counties saw the lowest turnout for voters over 66.

House Democrats Elect Minority Leader

North Carolina state Rep. Robert Reives, D-Chatham, was picked on Monday by fellow Democrats to remain the party’s state House leader for the next two years. New and returning Democrats who won their House elections last month met and selected Reives as the chamber’s minority leader.

Reives, an attorney, first became Democratic leader two years ago, succeeding then-Rep. Darren Jackson, D-Wake.

Democrats will hold just 49 of the 120 House seats come January — two fewer compared to the past two-year session. But Republicans still fell one seat short of gaining a majority large enough to vote to override Democratic Gov. Roy Cooper’s vetoes if they remain united.

Reives pointed to the Democrats’ ability to uphold Cooper’s vetoes during the past two years in the news release announcing his selection. “I appreciate this vote of confidence in my leadership from the House Democratic Caucus,” Reives said. Other leadership positions within the caucus will be elected in the coming weeks, the release said.

House Republicans agreed last month to nominate Rep. Tim Moore, R-Cleveland, for a fifth term as speaker. The entire House will vote for the speaker’s post on Jan. 11, when the next session convenes.

Supreme Court Elections Case

The Supreme Court is about to confront a new elections case, a Republican-led challenge asking the justices for a novel ruling that could significantly increase the power of state lawmakers over elections for Congress and the presidency. The court is set to hear arguments Wednesday in a case from North Carolina, where Republican efforts to draw congressional districts heavily in their favor were blocked by a Democratic majority on the state Supreme Court because the GOP map violated the state constitution. A court-drawn map produced seven seats for each party in last month’s midterm elections in highly competitive North Carolina.

The question for the justices is whether the U.S. Constitution’s provision giving state legislatures the power to make the rules about the “times, places and manner” of congressional elections cuts state courts out of the process. “This is the single most important case on American democracy -- and for American democracy -- in the nation’s history,” said former federal judge Michael Luttig, a prominent conservative who has joined the legal team defending the North Carolina court decision.

The Republican leaders of North Carolina’s legislature told the Supreme Court that the Constitution’s “carefully drawn lines place the regulation of federal elections in the hands of state legislatures, Congress and no one else.”

Three conservative justices already have voiced some support for the idea that the state court had improperly taken powers given by the Constitution when it comes to federal elections. A fourth has written approvingly about limiting the power of state courts in this area. But the Supreme Court has never invoked what is known as the independent state legislature theory. It was, though, mentioned in a separate opinion by three conservatives in the Bush v. Gore case that settled the 2000 presidential election.

If the court were to recognize it now, opponents of the concept argue, the effects could be much broader than just redistricting. The most robust ruling for North Carolina Republicans could undermine more than 170 state constitutional provisions, over 650 state laws delegating authority to make election policies to state and local officials, and thousands of regulations down to the location of polling places, according to the Brennan Center for Justice at the New York University School of Law.

Luttig, who advised former Vice President Mike Pence that he had no authority to reject electoral votes following the 2020 election, is among several prominent conservatives and Republicans who have lined up against the broad assertion that legislatures can’t be challenged in state courts when they make decisions about federal elections, including congressional redistricting. That group includes former California Gov. Arnold Schwarzenegger, law professor Steven Calabresi, a founder of the conservative Federalist Society and Benjamin Ginsberg, a longtime lawyer for Republican candidates and the party.

“Unfortunately, because of ongoing and widespread efforts to sow distrust and spread disinformation, confidence in our elections is at a low ebb,” Ginsberg wrote in a Supreme Court filing. “The version of the independent state legislature theory advanced by Petitioners in this case threatens to make a bad situation much worse, exacerbating the current moment of political polarization and further undermining confidence in our elections.”

The arguments are taking place a day after the final contest of the 2022 midterms, the Georgia Senate runoff between Democratic Sen. Raphael Warnock and Republican Herschel Walker. In that contest, state courts ruled in favor of Democrats to allow for voting on the Saturday before the election, over the objections of Republicans.

Jason Snead, of the conservative Honest Elections Project, said the case is an opportunity for the high court to rein in out-of-control state courts which are being pushed by Democratic attorneys to effectively create new rules governing voting, including the Georgia example. “We’ve seen a fairly pervasive attempt to use courts to rewrite election laws if those laws don’t suit partisan agendas,” Snead said in a call with reporters. “That’s not something we want to see when it flies in the face of the Constitution.”

He is among proponents of the high court’s intervention who argue the case doesn’t represent “a threat to democracy.” The justices can instead write a narrow opinion that places limits on state courts without upsetting the choices New York and other states have made to restrict partisan redistricting, a group of New York voters wrote in a court filing. The New Yorkers implicitly recognize that if the court gives more power to state legislatures over drawing congressional lines, Republicans may not necessarily benefit.

During the last redistricting cycle, states that used independent redistricting commissions rather than legislatures were largely Democratic-dominated ones. Commissions drew 95 House seats in states with Democratic legislatures and governors, as opposed to only 12 in states with GOP control. A ruling that grants legislatures ultimate power over redistricting could eradicate those commissions and let Democrats redraw a major chunk of the House map.

“The bottom line is the impact of this fringe theory would be terrible,” said former Attorney General Eric Holder, chairman of the National Democratic Redistricting Committee. “It could unleash a wave of gerrymandering from both parties.” Even less dramatic changes may not necessarily tilt the GOP’s way on a national redistricting map that was essentially fought to a draw, and where state court rulings cost Democrats about as many House seats as Republicans.

The Supreme Court refused to step into the North Carolina case in March, allowing the court-drawn districts to be used this year. Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissented. Writing for the three, Alito said “there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections. I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.”

Justice Brett Kavanaugh has separately written about the need for federal courts to police the actions of state courts when it comes to federal elections.

Chief Justice John Roberts’ record on this question gives both sides some hope. In 2015, he wrote a strong dissent from the court’s decision upholding an independent redistricting commission in Arizona. Roberts wrote that the Constitution does not permit “a state to wholly exclude ‘the Legislature’ from redistricting. ” But in 2019, Roberts wrote the court’s majority opinion that closed federal courts to claims of partisan gerrymandering but noted state courts remained open. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” he wrote, in an opinion joined by Alito, Gorsuch, Kavanaugh and Thomas. The court’s other conservative justice, Amy Coney Barrett, has no track record in this area.

In North Carolina, a new round of redistricting is expected to go forward next year and produce a map with more Republican districts, whatever the outcome of the high-court case. In last month’s elections, voters flipped the majority on the state Supreme Court, electing two new Republican justices that give the GOP a 5-2 edge and make it probable, though not certain, that the court would uphold a map with more Republican districts.

Wilmington’s Rail Realignment Project

Wilmington has entered into a contract with an infrastructure engineering firm to weigh the options of combining two major projects into one endeavor: the city’s rail realignment and replacement of the Cape Fear Memorial Bridge. The city is paying Hardesty and Hanover, based out of New York City, $200,000 to complete a comprehensive study about the feasibility of the project. City council unanimously signed off on the contract Nov. 15 and expects draft results within six months.

Three proposals were submitted, following a request sent out to engineering firms in July. Economic development director Aubrey Parsley told council Hardesty and Hanover was unanimously selected as the most qualified. The selection committee comprised employees from the city, Wilmington Urban Area Metropolitan Planning Organization and North Carolina Department of Transportation. “Few firms have the technical expertise to study and analyze a project like this,” Parsley said in November. “There are few shared bridges out there, at this scale, which combine highway and rail.”

Hardesty and Hanover has three combination bridges in its portfolio, all with vertical lift span components — a factor relevant to Wilmington’s undertaking. The firm has performed studies, alternative analyses, final designs, and rehab for more than 130 movable bridges over the last decade.

South Carolina

By Leslie B. Clark
December 5, 2022

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SC Commerce Publishes Economic Outlook

“The South Carolina Economic Outlook is a monthly publication of the South Carolina Department of Commerce. It provides the latest news and indicators on the state's economy and labor market. The Research Team is a multidisciplinary group of professionals dedicated to the collection, analysis, and dissemination of accurate, timely data. Commerce's philosophy is that decisions should be made with current and reliable information.” View the latest here.

Job Order Contracting (JOC) Pilot Program Solicitation Published

The Division of Procurement Services of the State Fiscal Accountability Authority may pilot test a job order contracting method at the request and on behalf of up to six governmental bodies or public procurement units consisting of two state agencies and four school districts by entering into job order contracts to acquire construction services. The State Engineer must approve which governmental bodies and Procurement Services may enter into job order contracts with up to four businesses for each governmental body or public procurement unit for each licensing classification and sub-classification for construction. The job order contracts must terminate twenty-four months after award.

For purposes of this provision, the term job order contract means a contract that provides for the issuance of job orders for the performance of construction, renovation, and repair work, where contractors propose an adjustment factor or factors to be applied to a catalog of preset unit prices calculated using local prevailing wage rates, local equipment, and local material costs, and where individual job orders are issued to the awarded contractors on an as-needed basis and the price paid for the work is a lump sum of the preset unit prices needed to complete the job order multiplied by the quantity required multiplied by the adjustment factor.

Any solicitation for a job order contract must include the following: (1) the period of the contract; (2) the maximum dollar value of the services to be procured under the contract; (3) the maximum dollar value of the services to be procured under a single job order; (4) a description that reasonably describes the licensing classification and the general scope, nature, complexity, and purposes of the services to be procured under the contract in a manner that will enable a prospective bidder to decide whether to submit a bid; (5) the procedures that the governmental body will use for issuing job orders for the pilot program; (6) if applicable, the geographic area to which the job order contract applies; ordinarily, a geographically contiguous area should not be subdivided; and (7) the number of job order contracts to be awarded.” The solicitation for the JOC Administrator has been advertised and can be found here.