Old North News

The impact of an imminent U.S. Supreme Court decision concerning a legal battle over a North Carolina voter ID law could be felt across the country, says Tom Spencer, vice president of the Lawyers Democracy Fund.

“What this case comes down to is who truly represents the people when it comes to enacting election laws,” Spencer told Old North News.

Lawyers Democracy Fund, a voter rights public interest law firm, filed an amicus brief in the case in January. Spencer said that a ruling from the high court is expected some time this month.

In the case, the Berger v. N.C. State Conference of the NAACP, state Republican legislative leaders, President of the Senate Philip Berger and House Speaker Rep. Timothy Moore, are seeking to intervene in a voter ID case after questioning North Carolina Attorney General Josh Stein’s commitment to defending it. Stein is a Democrat.

The Legislature had approved the law in 2018 over Democratic Gov. Roy Cooper’s veto after the voters approved a voter ID amendment to the state Constitution. A separate state law allows the legislative leaders to intervene in litigation over the constitutionality of a law. But in the Berger case, lower courts twice rejected the lawmakers’ attempts to intervene.

In its amicus, LDF said that it’s an increasingly common problem, especially with election laws, that attorney generals side with the plaintiff in the argument for partisan reasons.

“A state’s attorney general may belong to a different party or ideological faction from the party or faction controlling the legislature that enacted the law,” the LDF amicus said. “By declining to defend the law from a challenge brought by likeminded or politically allied plaintiffs, or to appeal an adverse judgment, the attorney general can work around both legislative and judicial processes to achieve an outcome adverse to the policy choice of the state legislature and the legal judgment of the courts—sometimes without doing any work at all.”

Spencer added that the attorney general’s refusal to aggressively defend a state law in court raises the question of who represents the people in making laws.

“If the attorney general fails to defend the law in court what say does the legislature have in representing the people, in making the laws?” Spencer said. “Whose view of the constitution prevails?”

The amicus further argued that if state law deems an attorney general's defense to be inadequate, that should be enough to bind the federal courts:

“Because North Carolina determined that its attorney general is not exclusively entrusted with authority to speak for North Carolina, and has assigned the legislature, through its legislative leaders (“Petitioners”), the choice of defending the law in court in the state’s name and on its behalf, this Court’s precedents command the lower federal courts to respect that decision and permit intervention.