The Supreme Court ruled 8–1 on June 23 that North Carolina’s Republican-controlled Legislature must be allowed to step in to advocate for a heavily litigated voter ID law in court because Josh Stein, the state’s Democratic attorney general, allegedly isn’t doing enough to defend the statute.
Republican lawmakers have long complained that Stein’s advocacy has been half-hearted and has focused on technical issues instead of countering the oft-repeated left-wing claim that voter ID laws are racially discriminatory. Republicans generally favor strengthening election integrity measures, such as requiring photo identification by voters. Democrats generally oppose photo IDs, saying that the requirement is burdensome and disenfranchises voters.
In 2018, North Carolina voters approved by 55.5 to 44.5 percent a state constitutional amendment requiring voters to present photo ID and directing the North Carolina General Assembly to develop legislation to enforce this requirement. The Legislature soon approved Senate Bill 824, which Gov. Roy Cooper, a Democrat, vetoed. The Legislature overrode his veto.
Lower federal courts sided with Stein.
On June 7, 2021, a divided U.S. Court of Appeals for the 4th Circuit rejected the request from the Legislature to take over the defense of the law from Stein. In dissent, Judge Harvie Wilkinson, a Reagan appointee, suggested that Stein may have a conflict of interest.
“When a challenge is brought to an unpopular or controversial state law, an attorney general’s defense of the law may be less than wholehearted,” Wilkinson wrote. “If the plaintiffs in the case are politically influential, the temptation to pull punches becomes even stronger. It casts no aspersions on anyone to note the obvious: North Carolina’s voter photo ID law is a very controversial statute.”
Separately, a divided state court in North Carolina struck down the law on Sept. 17, 2021, finding in Holmes v. Moore that it “was motivated at least in part by an unconstitutional intent to target African American voters.”
The case at hand is Berger v. North Carolina State Conference of the NAACP, court file 21-248, an appeal from a ruling by the U.S. Court of Appeals for the 4th Circuit. The lead petitioner Phil Berger, a Republican, is president pro tempore of the North Carolina Senate. Tim Moore, also a Republican and speaker of the North Carolina House of Representatives, is also a petitioner. The lead respondent, the NAACP, is the National Association for the Advancement of Colored People.
Justice Neil Gorsuch wrote the court’s opinion in the North Carolina case, which was joined by five conservative justices and two liberal justices. The sole dissenter was liberal Justice Sonia Sotomayor.
“Setting aside the lower courts’ erroneous presumptions, the proper resolution of today’s case flows quickly,” Gorsuch wrote. “Casting aspersions on no one, this litigation illustrates how divided state governments sometimes warrant participation by multiple state officials in federal court.”
“Within wide constitutional bounds, States are free to structure themselves as they wish. Often, they choose to conduct their affairs through a variety of branches, agencies, and elected and appointed officials. These constituent pieces sometimes work together to achieve shared goals; other times they reach very different judgments about important policy questions and act accordingly.
“This diffusion of governmental powers within and across institutions may be an everyday feature of American life. But it can also pose its difficulties when a State’s laws or policies are challenged in federal court.”
North Carolina has selected multiple officials to defend its interests in some cases, authorizing its attorney general, who is elected independently by state voters, to represent individual official defendants in federal litigation, Gorsuch wrote. At the same time, its General Assembly has also empowered the leaders of its two legislative chambers to participate in litigation on the state’s behalf under certain circumstances and with counsel of their own choosing, he added.
“It seems North Carolina has some experience with just these sorts of issues. More than once a North Carolina attorney general has opposed laws enacted by the General Assembly and declied to defend them fully in federal litigation.”
Because “the people of North Carolina have authorized the leaders of their legislature to defend duly enacted state statutes against constitutional challenge,” the state’s “legislative leaders are entitled to intervene in this litigation,” Gorsuch wrote, reversing the judgment of the 4th Circuit.
In her dissenting opinion, Sotomayor noted that under the Federal Rules of Civil Procedure a federal court isn’t authorized to grant a motion if an existing party to the case is adequately representing the movant’s interests.
Stein is “already ably and fully” representing the state’s interests, she wrote.
The court majority’s “conclusions that state respondents inadequately represented petitioners’ interests is a fiction that the record does not support. In addition, the Court’s armchair hypothesizing improperly displaces the District Court’s firsthand experience in managing this litigation,” Sotomayor added.
House Speaker Moore lauded the majority opinion on Twitter.
North Carolinians “deserve nothing less than the strongest representation from those who would uphold the will of the voters and our Constitution, not a tepid defense by an attorney general who has a record of opposing voter ID.”
Moore noted that when Stein was a state senator he voted against an earlier voter ID law and supported litigation against it.
The Supreme Court “has rightfully agreed with us that, without the participation of the General Assembly in defending voter ID, ‘important state interests would not be represented,’” Moore said.
Stein’s press secretary, Nazneen Ahmed, commented on behalf of the attorney general.
“We’re still reviewing the court’s decision,” she said by email.
“Our office has and will continue to vigorously defend state law, and did not oppose the legislators’ attempt to join in that defense.”
