North Carolina’s Republican-controlled legislature should be allowed to step in to advocate for a voter ID law in court because Josh Stein, the state’s Democratic attorney general, isn’t doing enough to defend the statute, Republican lawmakers told the Supreme Court on March 21.
Republicans generally favor strengthening election integrity measures, such as requiring photo identification by voters. Democrats generally oppose photo IDs, saying that the requirement is overly burdensome and disenfranchises voters.
Republican lawmakers 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.
The case has drawn comparisons to Cameron v. EMW Women’s Surgical Center, in which the Supreme Court ruled 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.
The case is Berger v. North Carolina State Conference of the NAACP, court file 21-248. Phil Berger, a Republican, is president pro tempore of the North Carolina Senate. The NAACP is the National Association for the Advancement of Colored People.
Justice Clarence Thomas, 73, wasn’t present at the court for oral arguments because he was hospitalized. Chief Justice John Roberts said Thomas “will participate in consideration and decision of the cases [today] on the basis of the briefs and the transcripts of oral argument.”
In 2018, North Carolina voters approved by a 55.5 to 44.5 percent vote a state constitutional amendment requiring voters to present photo ID and directing the North Carolina General Assembly to develop those requirements, Ballotpedia reported. The next month, the legislature approved Senate Bill 824, which laid out the requirements. Gov. Roy Cooper, a Democrat, vetoed the legislation but the Republican-controlled legislature overrode his veto.
Lower federal courts have sided with Stein.
On June 7, 2021, a divided U.S. Court of Appeals for the 4th Circuit rejected the request from the state legislature to take over the defense of the law from Stein. Writing for the circuit, Judge Pamela Harris, an Obama appointee, found that the federal district court that had twice rejected the request hadn’t abused its discretion.
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, two state judges in North Carolina struck down the law on Sept. 17, 2021.
The statute “was motivated at least in part by an unconstitutional intent to target African American voters,” the judges wrote in their majority opinion in Holmes v. Moore.
“Other, less restrictive voter ID laws would have sufficed to achieve the legitimate nonracial purposes of implementing the constitutional amendment requiring voter ID, deterring fraud, or enhancing voter confidence,” they wrote.
During oral arguments on March 21, attorney David H. Thompson, representing the legislature, told the Supreme Court that “Governor Cooper has been an implacable foe of this law.” Thompson noted that Cooper had previously said that “this unconstitutional law should never go into effect.”
“This court recently, in Cameron, held there are deep constitutional considerations implicated when a federal court is called to pass upon the constitutionality of a state law, and, thus, a federal court must account for a state designating multiple officials to defend its sovereign interests,” Thompson said. “There is no basis in this case for a federal court to second-guess a state’s decision that it needs a representative exclusively focused on vindicating state law.”
Justice Sonia Sotomayor questioned Thompson’s reasoning.
“Your position is that if North Carolina’s law said every member of the legislature has a right and must be made a party to defend the state or to defend the interests of the state, then a federal court would be bound by 50, 100 legislators coming in and participating in the litigation,” Sotomayor said.
Justice Elena Kagan asked Thompson: “Doesn’t the executive branch represent the state writ large?”
Thompson replied that this wasn’t the case “under North Carolina law.” State law states that the legislature is “deemed to be the state” in this situation, he said.
NAACP attorney Elisabeth Theodore told the court that there’s a “strong federal interest in requiring states to speak with a single voice at a time in federal litigation.”
“It does seem a little unfair to me that … you’re asking us to let [you] … pick your opponents,” Chief Justice John Roberts told Theodore. “What are you afraid of?”
North Carolina Deputy Solicitor General Sarah Boyce said Stein is advancing the same legal arguments about the voter ID statute that the legislature would. There’s “no daylight between their position and ours,” she said.
“Their evidence is duplicative of our evidence,” Boyce said.
Justice Stephen Breyer told Boyce that “the state legislature in an election case has a pretty strong interest.”