Berger, Moore seek to intervene in three federal elections lawsuits

Speaker Tim Moore, R-Cleveland, and Senate leader Phil Berger, R-Rockingham, hold a press conference announcing a budget agreement on the evening of September 19, 2023.

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  • Top legislative leaders filed paperwork Monday to intervene in three federal lawsuits challenging North Carolina election law.
  • The first suit targets the state's 30-day residency requirement for voters. The other two challenge provisions approved in Senate Bill 747.
  • Plaintiffs in two of the three suits are working with lawyers from Democrat Marc Elias' Washington, DC-based firm. The Democratic National Committee and state Democratic Party are pursuing the third suit.
  • State lawyers are relying on a 2022 US Supreme Court decision to support their argument for intervention in all three cases.

Top state legislative leaders have filed paperwork this week to intervene in three recent federal lawsuits. Each challenges state election law.

Lawyers for State Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, filed motions to intervene in all three cases in North Carolina’s Middle District. In each case, plaintiffs sued elections officials rather than lawmakers.

The first suit, filed Oct. 2, challenges North Carolina’s 30-day residency requirement voters. A plaintiff group called the North Carolina Alliance for Retired Americans is working with lawyers from Democratic lawyer Marc Elias’ Washington, DC-based firm.

Elias’s firm also represents the plaintiffs in a second suit filed on Oct. 10. In that case, challengers oppose the “undeliverable mail provision” in Senate Bill 747. That provision changes the rules affecting same-day voter registration.

In the third suit, also filed on Oct. 10, the Democratic National Committee and state Democratic Party challenge multiple pieces of SB 747. In addition to provisions related to same-day registration, the DNC suit targets a piece of the bill that requires mail-in absentee ballots to arrive by Election Day. The old state law allowed elections officials to count any ballot received up to three days after Election Day. The suit challenges changes to rules for poll observers aligned with the political parties.

“Federal Rule of Civil Procedure 24(a) gives a party a right to intervene where it ‘claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.’ And in cases challenging a state statute, North Carolina law declares that the Speaker of the North Carolina House of Representatives and the President Pro Tempore of the Senate — the Proposed Intervenors here — have just such an interest: they represent ‘the State of North Carolina’ in equal measure with the executive branch and are thus possessed of the State’s interest in defending the continued enforcement of its duly enacted laws,” legislators’ lawyers wrote in the Alliance for Retired Americans suit.

Lawmakers cited the US Supreme Court’s 2022 ruling in Berger v. North Carolina State Conference of the NAACP. That 8-1 decision recognized legislative leaders’ right to intervene in a federal case to defend the state’s voter identification law.

“Here, as in Berger, the plaintiff has challenged one of North Carolina’s rules governing voting in elections held in the State: in this case, its laws requiring a state resident to have resided within the state for 30 days preceding an election before voting in that election,” lawmakers’ lawyers wrote. “Proposed Intervenors’ interest in the case is the same as in Berger: defending the continued enforcement of those challenged state laws. And as in Berger, because the legislative branch ‘may be expected to vindicate different points of view on the State’s behalf’ than the existing, executive branch defendants, its interest in the case is not adequately represented. Just like in Berger, then, ‘North Carolina’s legislative leaders are entitled to intervene in this litigation,’ and this Court should grant their motion to intervene.”

In both suits filed on Oct. 10, legislators noted the fact that plaintiffs decided not to sue the people who wrote the challenged elections law.

“The Proposed Intervenors have a clear interest in upholding the validity of state statutes designed to regulate election activity and protect election integrity in the state,” wrote Berger and Moore’s lawyers. “Despite the allegations in the Complaints being largely aimed at the General Assembly’s enactment of S.B. 747, Plaintiffs chose not to sue Proposed Intervenors, who are in the best position to defend the validity of the law in question.”

Neither the plaintiff nor the defendants oppose Berger and Moore’s intervention in the three cases, according to the latest court filings.

The Oct. 10 lawsuits arrived within hours of SB 747 becoming law. Both chambers of the General Assembly voted that day to override Gov. Roy Cooper’s veto of the measure. It sets Election Day as the deadline for mail-in absentee ballots, ending a three-day grace period under the state’s previous law. It bans private funding of elections administration. It clarifies rules for party-sponsored poll site election observers. It bans drop boxes for ballots. It makes a number of other changes in a 43-page document.