NC Supreme Court

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Observations On The Midterm Elections

November 9, 2022 by 3 Comments

The pollsters took another election on the chin. Few races turned out anywhere near what was predicted. The so-called red wave or tsunami has turned into, at best, a red rivulet. The US House may be Republican majority but it will be only so marginally. We still don’t know about the Senate. The Georgia senate runoff may be the deciding factor there.

In North Carolina, it was generally a good night for Republicans and conservatives. Rep. Tedd Budd (R-NC) defeated former Ch. Justice Cheri Beasley. He had a positive vote margin of approximately 135,000 votes. In my district, St. Sen. Chuck Edwards (R-Henderson) beat Buncombe County Commissioner Jasmine Beach-Ferrara (R) by over 30,000 votes.

In the North Carolina statewide judicial races for Supreme Court and Court of Appeals, it was a Republican sweep. Republicans will now have a 5-2 majority on the Supreme Court with the addition of Judge Richard Deitz and Trey Allen. With the US Supreme Court hearing Moore et al v. Harper et al, a case involving redistricting and the legislative prerogative, redistricting will probably come before the NC Supreme Court again.

Speaking of redistricting, the forced redistricting of Congressional districts by the NC Supreme Court resulted in a 7-7 split between Republicans and Democrats. Without this forced redistricting, it probably would have been 9-4.

The other NC results of note are that the Republicans regained a supermajority in the State Senate and are only one short in the State House. This bodes well for both the elimination of the pistol purchase permit as well as allowing church carry when the church has an attached school. Both bills were vetoed by Gov. Roy Cooper (D-NC) and had his veto sustained in this past session.

Moving on from NC, let’s look at Pennsylvania. I think it was widely expected that AG Josh Shapiro (D) was going to win the governorship over St. Sen. Doug Mastriano (R) and he did. It was the Senate race between Mehmet Oz and John Fetterman that got most national attention. It appears that Fetterman, damaged as he was from his stroke, has won that race by about 200,000 votes. I have looked at the results and one thing stands out to me. The PA Secretary of State’s office shows the votes on the day of the election and “mail in” votes. Fetterman got 886,217 mail in votes versus 217,932 for Oz. A 4-1 split like that is statistically suspicious in my opinion. This is especially true given that Oz had about 45,000 more election day votes than Fetterman. It just doesn’t pass the smell test.

As to Fetterman serving a full term, I’m going to go out on a limb and say he will be gone by mid-year 2023 due to “health reasons” with Shapiro then appointing a replacement to serve until Jan. 2025. I just can’t see Fetterman as being much more than a placeholder given his condition.

J. D. Vance along with Republicans in general had a good day in Ohio. They took the governorship, Vance’s senate seat, and the Chief Justice of the Ohio Supreme Court along the rest of the Council of State offices.

Oregonians decided that they wanted to stick with the leftist policies of Gov. Kate Brown and elected Tina Kotek (D) as governor. Again, polls were deceiving as it appeared that Republican Christine Drazan might have been in the lead. Also, voters barely passed anti-gun Measure 114 which contains a magazine ban as well as requirements to obtain a permit before purchasing any firearm. Multnomah County, the home of Portland, provided the most votes for it. Why am I not shocked. I foresee that this will be challenged in Federal court given the Bruen precedents.

One last observation is that former President Trump was good at pushing candidates in the primaries. He was not so good at getting candidates that could actually win a general election. If you look at both New Hampshire and Georgia, Republican governors cruised to re-election while the Trump-backed Senate candidates struggled. Bolduc lost in New Hampshire and Hershel Walker is slightly behind Warnock at they are headed to a run-off. Meanwhile in Florida, both Ron DeSantis and Marco Rubio who have been dissed by Trump won handily. I know Trump wants vindication for his 2020 loss to Joe Biden but there comes a time when you just have to suck it up and move on. Now that I’m officially a senior citizen, I think I can say we need a 2024 presidential candidate that is younger than me which automatically precludes him.

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Early 1-Stop Voting Starts Tomorrow In NC (Updated)

October 19, 2022 by

Early one-stop voting starts on Thursday, October 20th, in North Carolina. The premier race is for the US Senate. It pits Rep. Ted Budd (R-NC13) against former NC Supreme Court Chief Justice Cheri Beasley. This is going to be a very, very close race as they are virtually tied.

For those who value the Second Amendment this is a critical race that we must win. On one side you have Ted Budd who not only supports gun rights but owns a gun store and range. He isn’t afraid to be seen shooting in his campaign photos and ads. You may remember I mentioned running into him at Montgomery Community College while he was touring the gunsmithing department.

BRUCE HENDERSON bhenderson@charlotteobserver.com

On the other side, Beasley is an Everytown Gunsense endorsed candidate. She also put this on her campaign website. Need I say more?

Cheri also believes that we must keep our children and communities safe by also implementing common sense gun safety measures like universal background checks, encouraging safe storage and closing loopholes to prevent domestic abusers and those with mental health issues from being able to obtain a gun. We must also do more to stop the plague of mass shootings across our communities by keeping combat-style weapons and high-capacity magazines off our streets and away from our schools. 

I have highlighted all the buzz words used by gun prohibitionists.

There are many other races as well that are just as critical ranging from Congress to the appellate judicial races to the state house and senate.

In my own Congressional district, you have self-made businessman St. Sen. Chuck Edwards who just happens to hold a FFL against Buncombe County Comm. Jasmine Beach-Ferrara. While neither has made gun rights a part of their campaign, you have to know that Edwards will support gun owners and Beach-Ferrara will not. Her main campaign focus seems to be abortion where she portrays herself as a caring, pro-abortion minister. Edwards’ focus is on the economy and inflation.

Two NC Supreme Court seats are up for grabs. If the Republicans take both of them, they will then be in the majority on the court and we probably won’t get rulings overturning the vote on constitutional amendments dealing with tax reform and voter ID. While both Republican candidates are good, Judge Richard Dietz who is now on the NC Court of Appeals really stands out. He has argued the Abramski case before the US Supreme Court. While he unfortunately lost, we know he is pro-Second Amendment and pro-self defense.

The other seat has Justice Sam J. Ervin IV (D) versus Trey Allen (R) who serves as the General Counsel for the Administrative Office of the Courts. I met Jimmy Ervin (who now goes by Sam) years ago when in college. He and I were both heads of our respective chapters of College Democrats. (Yes, I was young, stupid, and a Democrat at one time.) Despite his Harvard Law degree, he never has been seen as one of those brilliant lawyers who must be on the bench. What he does have is a famous last name. Grandpa (Sam Jr) served like Jimmy on the NC Supreme Court and as a US Senator while Daddy (Sam III) served as a NC Superior Court judge and on the US 4th Circuit Court of Appeals. We don’t have hereditary rights to office in this country though it seems that the sons and grandsons of politicians often “inherit” a seat. He is running an “aw, shucks” kind of ad saying he works to balance the law and the facts. If that was really the case, then he would have broken with the Democrat majority on the NC Supreme Court in voting down voter ID.

In the State House and Senate, if the Republicans can flip just a handful of seats, they will regain their super-majority. In terms of gun rights, this would mean the end of the Jim Crow era pistol purchase permit who Gov. Roy Cooper (D) vetoed.

To see where the legislative candidates – state and Federal – stand on gun rights, Grass Roots North Carolina has their candidate evaluations posted. You can search by name or by district. The GRNC-Political Victory Fund recommendations have been released and have gone out by email. As soon as I get a link to it, I will post it. One thing I should note, if a candidate didn’t have a voting record and didn’t return the GRNC survey they are rated zero stars. For the life of me, I cannot understand Republican candidates who just ignore the survey. You don’t have to be great; you only have to better than the Democrat.

The Judicial Fairness Project has their recommendations posted for NC appellate level judges. These are candidates who have pledged to uphold originalist interpretations of the Constitution.

One thing I heard at the recent Gun Rights Policy Conference was that over 30% of gun owners don’t bother voting. Just imagine if the majority of them did vote and voted for gun rights.

UPDATE: I now have an updated link to the Grass Roots North Carolina – Political Victory Fund candidate recommendations for the General Election.

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SAF Files Amicus Brief In NC Gun Range Zoning Case

June 2, 2015 by 1 Comment

The NC Court of Appeals upheld Franklin County’s Unified Development Ordinance (UDO) in a split decision in 2014. Their ruling upheld a Superior Court ruling denying the plaintiffs the ability to build a shooting range.

Aaron Byrd and Eric Coombs had sought to build a shooting range on property they owned in the county. The county’s Planning Director has first told them they couldn’t do it because the UDO didn’t list it as an approved use. The Director later amended his decision to say that Byrd and Coombs could have a range if they applied for a special use permit under the Open Air Games classification. They applied to the Franklin County Board of Commissioners for this special use permit in December 2012 and were denied.

Shortly thereafter, Byrd and Coombs were issued notices that they were in violation of the zoning code and they must “cease and desist” all activities related to the shooting range. They appealed the Code Officer’s notices to the county’s Board of Adjustment. (As an aside, I served on the Town of Wayneville’s Board of Adjustment for 19 years.) The Board of Adjustment is a quasi-judicial board whose rulings can be appealed to the Superior Court. They were turned down here and made a timely appeal to Superior Court. As noted in the first paragraph, the Superior Court upheld the ruling of the Board of Adjustment.

Byrd and Coombs contend that since the UDO made no mention of regulating shooting ranges, then they don’t need approval from the county to build their range. Moreover, they said that classifying a shooting range as an Open Air Game was in error. Finally, they argued that an earlier Court of Appeals case, Land v. Village of Wesley Chapel, has set the precedent in their favor.

The opinion of the Court of Appeals stated they agreed that the classification of the shooting range as an Open Air Game was erroneous. They they went on to say this:

However, we disagree with
Petitioners that the UDO does not regulate shooting ranges at
all, but it does in fact prohibit shooting ranges anywhere in
the County by providing that “[u]ses not specifically listed in
the Table [] are prohibited.” Accordingly, we hold that the
superior court did not err in affirming the County’s order that
Petitioners cease and desist from operating a shooting range on
the Property.

Judge Robert Hunter dissented from this opinion in part saying that he thought the Land case precedent on shooting ranges ruled in this case. It should be noted that Judge Hunter wrote the opinion in the Land case. He said the Land case “cited long-standing precedent in
rejecting the notion that a zoning ordinance may prohibit uses
not explicitly allowed.”

Byrd and Coombs have now appealed this decision to the NC Supreme Court. On Friday, the Second Amendment Foundation filed an amicus brief on behalf on the plaintiffs. The SAF’s amicus brief was submitted by Raleigh attorney Camden Webb of Williams Mullin.

The Second Amendment Foundation amicus brief notes that this case does not only involve a judicial interpretation of the county’s UDO but “implicates an important Constitutional question.” The Court of Appeals by saying that the UDO prohibits shooting ranges in Franklin County is allowing “the impermissable infringement of the Second Amendment rights of the people of Franklin County, North Carolina.”

After discussing Heller, McDonald, and the appropriate level of scrutiny, the brief goes on to discuss the 7th Circuit’s ruling in the Ezell case. There the court said the the City of Chicago’s banning of all shooting ranges within the city limits was unconstitutional saying, in part, “the core right wouldn’t mean much without the training and practice to make it effective.” The brief argues that the 7th Circuit’s reasoning should apply in this case. The brief further argues that the county did not establish a close fit between the banning of a range and the public good or interest that it serves. Given the county is primarily rural, they say the “complete prohibition of a shooting ranges in such a county simply cannot pass constitutional muster.”

I’m glad the Second Amendment Foundation filed an amicus brief in this case. The precedent set by the Ezell case must be strongly defended and this brief does that. Alan Gottlieb noted that the SAF had to sue Chicago over this same issue.