By Zachary Stieber
The nation’s top court will hear arguments over a North Carolina voter identification law, it announced on Wednesday.
The Supreme Court agreed to hear Philip E. Berger et al. v. North Carolina State Conference of the NAACP et al.
Top North Carolina lawmakers, including Senate President Pro Tempore Philip Berger, tried intervening in a challenge to the law but were rejected by an appeals court, which deemed the defendant in the challenge, North Carolina Attorney General Josh Stein, could not be replaced.
The lawmakers are Republicans and Stein is a Democrat.
The Republicans told the Supreme Court (pdf) that there should not be a presumption of adequate representation and that they should be allowed to defend it.
The matters that affect the case date back to 2013, when the state legislature passed Session Law 2013-381 and then-Gov. Pat McCrory signed it.
The law required showing photo identification to vote and tightened other aspects of the state’s voting system.
A court struck down some provisions of the law, ruling they were enacted with racially discriminatory intent. The state then asked the Supreme Court to stay the ruling until they could enter a petition for a writ of certiorari, or a request to review the case.
Justices indicated they would grant one but new Gov. Roy Cooper a Democrat, moved to dismiss the state’s request, and Stein said in a statement the law was correctly struck down. The court dismissed the petition and Cooper celebrated the move.
In 2018, though, North Carolina voters approved amending the state’s Constitution to state that “ voters offering to vote in person shall present photographic identification before voting” and directed lawmakers to enact laws governing the requirement.
The General Assembly then passed Senate Bill 824, which contained opt-outs such as letting voters without identification cast provisional ballots. Cooper vetoed the bill, but state legislature overrode the veto.
A day later, the National Association for the Advancement of Colored People and other parties challenged the law, alleging it disproportionately impacted minorities.
The lawmakers soon filed a motion to intervene, expressing interest in seeing that the law they passed was not nullified.
The lawmakers were turned down by a district court, which found that legislators can only defend the constitutionality of a law when the executive branch declines to do so. It also found a presumption that the lawmakers’ interests would be adequately represented by the executive branch.
Cooper eventually answered the suit, asking that it be dismissed. He was dismissed as a party in 2019, with the North Carolina State Board of Elections the only defendant remaining. The board has not tried to defend the law.
A renewed motion to intervene was rejected and appeals were unsuccessful.
“This court should grant review to resolve the important issues presented by this case and to resolve the conflict in authority that they have engendered. These questions strike at the heart of a state’s sovereign authority to designate agents to represent its interests in court. And as this case demonstrates, they are of particular importance in the context of divided government and litigation involving controversial matters,” the lawmakers told the Supreme Court.
No date has been set for oral arguments yet.
The law in question was struck down in September in a separate case.
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