By Matthew Vadum
The Supreme Court ruled 8-1 on June 23 that North Carolina’s Republican-controlled legislature must be allowed to step in to advocate for a heavily litigated voter ID law in court because Josh Stein, the state’s Democratic attorney general, allegedly isn’t doing enough to defend the statute.
Republican lawmakers have long complained that Stein’s advocacy has been half-hearted and has focused on technical issues instead of countering the oft-repeated left-wing claim that voter ID laws are racially discriminatory. Republicans generally favor strengthening election integrity measures, such as requiring photo identification by voters. Democrats generally oppose photo IDs, saying that the requirement is burdensome and disenfranchises voters.
In 2018, North Carolina voters approved by 55.5 to 44.5 percent a state constitutional amendment requiring voters to present photo ID and directing the North Carolina General Assembly to develop legislation to enforce this requirement. The legislature soon approved Senate Bill 824, which Gov. Roy Cooper, a Democrat, vetoed. The legislature overrode his veto.
Lower federal courts sided with Stein.
On June 7, 2021, a divided U.S. Court of Appeals for the 4th Circuit rejected the request from the legislature to take over the defense of the law from Stein. In dissent, Judge Harvie Wilkinson, a Reagan appointee, suggested that Stein may have a conflict of interest.
“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,” Wilkinson wrote. “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.”
Separately, a divided state court in North Carolina struck down the law on Sept. 17, 2021, finding in Holmes v. Moore that it “was motivated at least in part by an unconstitutional intent to target African American voters.”
The case at hand is Berger v. North Carolina State Conference of the NAACP, court file 21-248, an appeal from a ruling by the U.S. Court of Appeals for the 4th Circuit. The lead petitioner Phil Berger, a Republican, is president pro tempore of the North Carolina Senate. Tim Moore, also a Republican and Speaker of the North Carolina House of Representatives, is also a petitioner. The lead respondent, the NAACP, is the National Association for the Advancement of Colored People.
The case has drawn comparisons to Cameron v. EMW Women’s Surgical Center, in which the Supreme Court ruled—also by 8-1—on March 3 that Kentucky Attorney General Daniel Cameron, a Republican, should be allowed to defend a state law restricting abortion after the state’s Democratic governor, Andy Beshear, refused to do so. The Epoch Times reported on the ruling at the time.
Justice Neil Gorsuch wrote the court’s opinion (pdf) in the North Carolina case, which was joined by five conservative justices and two liberal justices. The sole dissenter was liberal Justice Sonia Sotomayor.
“[T]he merits of that dispute are not before us, only an antecedent question of civil procedure: Are two leaders of North Carolina’s state legislature entitled to participate in the case under the terms of Federal Rule of Civil Procedure 24(a)(2)?”
“Within wide constitutional bounds, States are free to structure themselves as they wish. Often, they choose to conduct their affairs through a variety of branches, agencies, and elected and appointed officials. These constituent pieces sometimes work together to achieve shared goals; other times they reach very different judgments about important policy questions and act accordingly. This diffusion of governmental powers within and across institutions may be an everyday feature of American life. But it can also pose its difficulties when a State’s laws or policies are challenged in federal court.”
North Carolina has selected multiple officials to defend its interests in some cases, authorizing its attorney general, who is elected independently by state voters, to represent individual official defendants in federal litigation, Gorsuch wrote. At the same time, its General Assembly has also empowered the leaders of its two legislative chambers to participate in litigation on the state’s behalf under certain circumstances and with counsel of their own choosing, he added.
Because “the people of North Carolina have authorized the leaders of their legislature to defend duly enacted state statutes against constitutional challenge,” the state’s “legislative leaders are entitled to intervene in this litigation,” Gorsuch wrote, reversing the judgment of the 4th Circuit.
In her dissenting opinion, Sotomayor noted that under the Federal Rules of Civil Procedure a federal court is not authorized to grant a motion if an existing party to the case is adequately representing the movant’s interests.
Stein is “already ably” representing the state’s interests, she wrote.
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