The judge in a federal lawsuit on North Carolina’s voter photo identification law scheduled for trial on Jan. 24 has decided to delay the proceeding until the U.S. Supreme Court can decide in coming months whether North Carolina legislative leaders should be allowed to help defend the statute in court.
U.S. District Court Judge Loretta Biggs, an Obama appointee, ordered the trial delay on Dec. 30, saying it wasn’t reasonable to move forward without first obtaining feedback from the high court. Moving ahead prematurely could force the court to try the matter twice, “needlessly expending tremendous resources of time and effort” and possibly confusing voters, Biggs wrote in the court order.
“North Carolina’s voter ID requirements have already been subject to extensive judicial intervention at both the federal and state levels, occasionally resulting in conflicting orders,” she wrote.
The statute “was motivated at least in part by an unconstitutional intent to target African American voters,” Superior Court Judges Michael O'Foghludha and Vince Rozier wrote in their majority opinion.
“Other, less restrictive voter ID laws would have sufficed to achieve the legitimate nonracial purposes of implementing the constitutional amendment requiring voter ID, deterring fraud, or enhancing voter confidence.”
The Supreme Court appeal is Berger v. North Carolina State Conference of the NAACP, court file 21-248. The high court agreed on Nov. 24, 2021, to hear the case, which is an appeal from the U.S. Court of Appeals for the 4th Circuit, but hasn’t yet scheduled oral arguments.
The North Carolina branch and various local chapters of the National Association for the Advancement of Colored People (NAACP) sued, claiming the state’s voter ID law ran afoul of the federal Voting Rights Act and the U.S. Constitution.
Two Republican leaders, State Senate President Pro Tempore Phil Berger and House Speaker Tim Moore, asked to be allowed to participate in the lawsuit in order to properly defend the law. They argued that state Attorney General Josh Stein, a Democrat, wasn’t doing a good job representing the state’s interests.
Republicans generally favor strengthening electoral integrity measures such as requiring photo identification by voters; Democrats generally oppose photo IDs, arguing that the requirement is overly burdensome and disenfranchises voters.
On June 7, 2021, a divided 4th Circuit rejected the request from Berger and Moore.
Writing for the circuit, Judge Pamela Harris, an Obama appointee, stated that the case was unusual in that the state was already being represented by its attorney general while the legislative leaders twice asked the federal district court to allow them to intervene “so that they also can speak for the State, insisting that this case requires not one but two representatives of the State’s interest.”
The district court turned them down both times, and “we see no abuse of discretion in that decision.” The only way they could intervene is if a federal court finds the attorney general is “in dereliction” of his duty to represent the state properly.
In dissent, Judge Harvie Wilkinson, a Reagan appointee, suggested Stein may have a conflict of interest.
“Every attorney general who looks in the mirror sees a governor. ... 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. 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.”
