Who represents the people of North Carolina: the governor or the General Assembly?
The eight justices of the U.S. Supreme Court may decide that on March 31, when they meet in a conference to consider motions in the lawsuit challenging the state’s 2013 election reforms. If the justices accept a motion by state Attorney General Josh Stein to withdraw from the case, North Carolina’s law requiring voter identification at the polls and disallowing same-day registration and out-of-precinct voting would be unconstitutional.
What the justices may decide — if they do anything at all — is whom Stein represents. Stein and fellow Democrat Gov. Roy Cooper argue in court filings they represent the state and its residents. They want the Supreme Court to end the case, effectively striking down the election law.
Former state Supreme Court Justice Bob Orr told Carolina Journal the debate between Stein and the General Assembly over who represents the state should not be decided by the U.S. Supreme Court. “This is probably not the best place to resolve this issue,” he said. He would prefer the matter be handled by state officials, but acknowledged that’s unlikely any time soon.
The GOP-led General Assembly’s private attorneys say the appeal should continue, in part, because the legislature is Stein’s client and he failed to inform lawmakers he was planning to ask the court to withdraw from the case.
In court documents, the private attorneys also claim Stein has a conflict of interest because he testified against the state during the initial trial. Stein denied any personal interest in the lawsuit or any other legal conflict. He also said he had no duty to inform the General Assembly that he was asking to withdraw from the case because the legislature is not his client.
Complicating matters, the court is split ideologically, with four conservative-leaning and four liberal-leaning justices. Federal appeals court Judge Neil Gorsuch is in the middle of confirmation hearings to take the seat vacated by the death of Justice Antonin Scalia. A confirmation vote before the full Senate is unlikely before early April.
But if the current justices choose to decide the North Carolina motions before Gorsuch takes office, and they split 4-4, a July 2016 opinion by the 4th U.S. Circuit Court of Appeals overturning the state law would stand.
The lawsuit, filed by the NAACP and several voters, claimed the 2013 election law violated the federal Voting Rights Act. The General Assembly and then-Gov. Pat McCrory said the law was intended to prevent voter fraud and uphold the integrity of elections.
The Obama administration joined the lawsuit against the state. Last April, a U.S. District Court judge upheld the law. But in July, a three-judge 4th Circuit panel of Democrat-appointed judges overturned the opinion, saying the law discriminated against minority voters.
In August, then-Attorney General Cooper — who opposes the 2013 election law — said he would not represent the state and that the private attorneys hired by Cooper and the General Assembly would handle any appeals.
Then Cooper was elected governor, and Stein succeeded Cooper.
On Feb. 21, Cooper’s general counsel and Stein’s chief deputy sent a letter by email to Thomas Farr and Kyle Duncan, the attorneys working for the General Assembly, informing them that, effective immediately, the attorney general’s office would handle the matter exclusively.
The same day Stein filed a motion with the Supreme Court asking it to dismiss the case. Farr responded with a letter to Cooper and Stein’s representatives informing them they did not have the authority to remove North Carolina from the petition for the Supreme Court to hear the matter.
These motions are on the court’s March 31 calendar. The justices may rule on them that day, delay any decision until a future meeting, or wait until the ninth justice is at work — perhaps this summer or fall.