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Justices Give Little Away as They Consider Whether GOP Legislators Can Defend North Carolina Voter ID Law Alongside Democratic AG

Supreme Court Holds Investiture Ceremony For Associate Justice Amy Coney Barrett

The sun shines on the Supreme Court building in Washington D.C.

The U.S. Supreme Court on Monday heard oral arguments in a case about just who is allowed to represent North Carolina’s interests in ongoing litigation about the state’s controversial voter ID law.

That law, Senate Bill 824, is currently permanently enjoined due to litigation in the state court system. In September 2021, a panel of judges in North Carolina found the GOP effort “was enacted with the unconstitutional intent to discriminate against African American voters.”

Parallel litigation is also occurring in the federal courts where the law was enjoined by a panel of judges in December 2019. Recently, however, the injunction was stayed by a full appellate court ruling that could have allowed the law to be used for recent primary elections–though the state court ruling still foreclosed SB 824’s applicability.

The nine justices did not consider the merits of the law during Monday’s session. Rather, they were asked to consider an appeal from the U.S. Court of Appeals for the Fourth Circuit in an ancillary dispute about whether the Republican-dominated state legislature can fill a perceived void in litigation strategy about the broader case and insert themselves into the lawsuit as defendants because the state’s Attorney General Josh Stein and Gov. Roy Cooper are both Democrats who have previously expressed opposition to SB 824.

In other words, North Carolina Republicans Philip E. Berger (the President Pro Tempore of the North Carolina Senate) and Timothy K. Moore (the Speaker of the North Carolina House of Representatives) contend they should be permitted to intervene in the lawsuit on the grounds that the current trial team will not adequately defend the law.

The law itself requires photo identification for in-person voting and intentionally forecloses against people using identification issued for government assistance programs. Multiple federal and state courts have found that particular carve-out, in light of how poverty works in the Tar Heel State, targets Black voters for disenfranchisement.

Cooper vetoed the bill, saying “photo IDs for in-person voting is a solution in search of a problem” and that the law “puts up barriers to voting that will trap honest voters in confusion and discourage them with new rules, some of which haven’t even been written yet.” He also called out SB 824 for having “sinister and cynical origins” that intends to “suppress the rights of minority, poor and elderly voters.”

The state legislature hurriedly overrode Cooper’s veto.

Several branches of the NAACP challenged SB 824, alleging it discriminates against minority voters. Because the lawsuit was filed against Cooper and members of the North Carolina State Board of Elections (in their official capacities), GOP leaders who support the law want to intervene on the grounds that their interest in supporting voter ID requirements would not be adequately represented by the state defendants who are required to defend the statute. Cooper, for his part, was later removed as a defendant.

“I still don’t understand what the conflict here is,” Justice Sonia Sotomayor said right off the bat when questioning Berger’s attorney David H. Thompson, signaling some obvious opposition and noting that the attorney general is still defending the law. “The problem with your position is that if North Carolina’s law said that every member of the legislature has a right to defend the interests of the state, a federal court would be bound by 50-100 legislators coming in.”

Justice Elena Kagan picked up on Sotomayor’s hypothetical about potentially dozens of legislators being brought in as parties to any given case. Thompson, in turn, said that his position is that it should just be the first legislator to file a lawsuit under a section of state law that allows the legislature to come in and defend laws under certain circumstances.

“Why is that?” Kagan mused. “Suppose there was something in between. Why would we not say, on your theory, ‘Well, then we would have to have five people here.'”

“One adequate representative,” Thompson clarified.

Justice Amy Coney Barrett followed up on that same line of questioning by asking why legislators 2-10 would not be allowed to intervene in a case under the GOP’s theory.

“I’m asking you would that be because adequate representation could be satisfied?” the newest justice asked. Before Thompson could answer, Kagan interrupted to ask who and when the court should defer to on whether such state interests are, in fact, adequately aligned.

Thompson gave a meandering response that amounted to an argument that sussing out that question can be found somewhere in the federal rules of civil procedure. Justice Brett Kavanaugh cut in to say that Thompson wasn’t actually answering Kagan’s question.

Justice Stephen Breyer noted that, in his opinion, the case largely boils down to one particular phrase in federal law that allows for intervention in such cases “unless existing parties adequately represent that interest,” and wanted to know the attorney’s theory of the case. Thompson responded to a litany of Breyer’s potential pitfalls by saying the case concerns a “paramount interest” of North Carolina to have “a champion focused on winning the suit.”

Justices Samuel Alito and Neil Gorsuch had no questions for the GOP attorney.

“We have an interest, and it’s being impaired,” Thompson concluded, during his round of questions from the nation’s high court.

“This case is the poster child for why federal law puts a thumb on the scale against intervention,” NAACP attorney Elisabeth S. Theodore argued, before her own quizzing by the nine justices.

Chief Justice John Roberts said he was worried about about endorsing a federal interest against intervention that conflicts with a state law, saying certain state agents must defend their own laws.

“That’s a pretty difficult, eyebrow-raising thing for a federal court to do,” he said, suggesting some discomfort with a wide ruling against the North Carolina GOP. “I don’t see federal courts doing that as a general matter.”

Barrett and Kagan focused on the actual differences between the attorney general and the state legislature with the latter justice noting the “formal” distinction and the legislature’s “unleavened” attempts to see the law fully vindicated in court.

Theodore, however, dismissed this tension and said “there are real, significant problems” with what such logic means in practice because different state voices often want entirely different things when it comes to trial strategy and other, actual courtroom decisions.

Alito, apparently repeatedly banging on something that audibly transferred to booms in the court’s microphone, took the NAACP attorney to task for what he called the “unreality” of her argument and wanted to know how the legislature can protect itself if the state’s defense is not particularly vigorous.

Roberts picked up on that line of thought and asked bluntly: “What are you afraid of?” accusing Theodore of trying to pick her clients’ opponents.

“We haven’t picked our opponents,” the attorney noted, saying the NAACP sued who they did based on the Supreme Court’s own precedents about who can be sued in certain kinds of cases.

“I don’t know why we’re terribly interested in your views on [this question] in the first place because you’re the one who’s going to benefit if we throw one of your opponents out,” Roberts replied.

Arguing for the North Carolina attorney general was Sarah G. Boyce, who was adamantly opposed to the GOP’s theory of intervention though not particularly opposed to the GOP actually being allowed to intervene in the case itself.

“Their evidence is duplicative of our evidence,” she said at one point, before later adding: “They haven’t actually identified any daylight between their position and ours.”

“There is a fundamental principle of state constitutional law at stake,” Boyce continued, essentially staking out opposition to mandatory intervention here but outright saying the state would accept the court finding for permissive intervention. “We urge the court not to adopt their erroneous reading of state law.”

[image via Chip Somedevilla/Getty Images]

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