State legislative leaders are offering their final written arguments to the U.S. Supreme Court in a federal voter ID case. Legislators seek the court’s permission to intervene in the case to defend voter ID.
The nation’s highest court will hear oral arguments March 21 in the case titled Berger v. N.C. State Conference of the NAACP. State legislative leaders submitted their latest brief in the case Tuesday.
“This case is not a dispute over litigation tactics,” according to the document from attorney David Thompson, representing North Carolina’s Republican legislative leaders. “Instead, this case implicates important questions of state sovereignty and a state’s ability to designate agents to represent its interests in court.”
Lower courts have blocked legislative leaders from participating in a federal lawsuit challenging North Carolina’s 2018 voter ID law. Those courts have ruled that Democratic N.C. Attorney General Josh Stein’s attorneys are providing adequate representation of state interests.
Top lawmakers disagree. They argue that their interest in defending the ID law differs from Stein’s interest in representing the N.C. State Board of Elections. Legislators also argue that state law opens the door for their participation in the case.
“The ultimate question that this Court must decide is whether a federal court may disrespect a sovereign state’s judgment that officials charged with administering state laws are not alone adequate representatives of the state’s interest in defending those laws,” Thompson wrote. “The answer to that question is no. The federal courts should respect North Carolina’s choice to ’empower multiple officials to defend its sovereign interests.’”
While the state elections board is focusing on election administration, legislative leaders “are exclusively focused on defending the voter ID law on the merits so that it can go into effect as promptly as possible.”
“‘Respect for state sovereignty’ requires courts to honor a state’s choice to structure its government ‘in a way that empowers multiple officials to defend its sovereign interests in federal court,’” Thompson added. “Where a state has two interests that tug in opposite directions, it is both permissible and entirely reasonable for the state to choose to speak through officials with different perspectives.”
Lawmakers are petitioners before the U.S. Supreme Court. They spell out a unique feature of state governments involved in lawsuits. “[T]hey are structured to protect liberty by dividing power among separately selected officials who do not answer to each other,” Thompson wrote. “As a result, a federal court’s ruling on an intervention motion in this setting has consequences for not only how state law will be defended but also who can settle the case and thus dispose of it.”
“The state and federal litigation over North Carolina’s voter ID law illustrates this reality,” the brief continued. “Petitioners are parties to the state court case, which other state officials cannot settle without Petitioners’ consent. Yet because intervention was denied in this parallel federal case, control of the defense is entirely in the hands of state executive branch officials.”
“The distribution of power within state government should not depend on whether a plaintiff sues in state or federal court, and whatever presumptions lower courts apply in other settings should have no bearing on how the Court assesses adequacy of representation in this unique context,” Thompson wrote.
Lawmakers reject the notion that only the attorney general can represent the state in federal court proceedings. “Nothing in the North Carolina Constitution makes assertion of the State’s interest in litigation the exclusive province of the executive branch generally or the Attorney General specifically,” lawmakers’ brief explained. “Indeed, the constitution simply states that the ‘duties [of the Attorney General] shall be prescribed by law.’ The Attorney General thus only has the statutory authority granted to him in the ‘discretion of the General Assembly.'”
The U.S. Supreme Court is likely to rule by summer on legislators’ intervention in the federal voter ID case. The case will then return to U.S. District Court for a trial.
Two cases at the N.C. Supreme Court also deal with voter ID. State justices heard oral arguments Feb. 14 in a case challenging North Carolina’s 2018 voter ID constitutional amendment.
Lawyers are working on state Supreme Court filings now in a separate suit. It challenges the law implementing the constitutional ID requirement.