by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The full 4th U.S. Circuit Court of Appeals split, 9-6, Monday in a decision rejecting N.C. legislators’ plea to intervene in a voter ID lawsuit.
All nine Democratic appointees to the Richmond-based appellate court ruled against the Republican lawmakers. All six Republican appointees signed on to dissents that would have supported N.C. legislative leaders.
The suit, NAACP v. Cooper, is scheduled to head to trial next January. The plaintiffs sued Gov. Roy Cooper and the State Board of Elections over a voter ID law approved in 2018. Lawmakers approved that law just weeks after N.C. voters agreed to place a voter ID requirement in the state constitution.
Cooper had vetoed the voter ID bill before it became law. The governor also has consistently spoken against voter ID. He also appoints the members of the state elections board, the other defendant in the case.
Legislative leaders wanted to intervene in the case because of their concerns that Attorney General Josh Stein and his N.C. Justice Department would not defend the voter ID law vigorously.
Democratic Appeals Court judges, in an opinion authored by Judge Pamela Harris, an Obama appointee, rejected that argument.
But the primary dissent, written by Trump appointee Judge Marvin Quattlebaum and joined by four of the other five Republican judges, made the case for legislative intervention.
North Carolina recognized a potential problem. It anticipated that there could be times when its executive branch would not vigorously enforce the state’s duly-enacted legislation. To address that concern, North Carolina passed a law that requests the North Carolina General Assembly be permitted, alongside the executive branch, to defend any federal action challenging a North Carolina statute. …
North Carolina’s Speaker of the House of Representatives and President Pro Tempore of the Senate (the “Leaders”) believed that the NAACP’s challenge to the voter identification law involved the exact situation contemplated by N.C. Gen. Stat. § 1-72.2. As a result, they moved to intervene to defend the law. They claimed a significantly protectable interest in the litigation that, without intervention, would practically be impaired. And they claimed that their interest was not being adequately represented by the Governor and the State Board of Elections due both to the public opposition to the bill expressed by the Governor and the Attorney General and to what they described as the half-hearted way the Attorney General was defending the law in this case and in a parallel case in state court. …
… [I]t is not our job to micromanage how the district court weighs the relevant factors in the intervention analysis. But it is our job to ensure that relevant factors, one of which here is §1-72.2(a), are not excluded from the analysis. I would remand the case to the district court to consider the North Carolina statute in the analysis of the Leaders’ interest in the litigation—with particular attention to the Supreme Court’s instructions that the state may choose its agents to defend its statutes in federal court and that the North Carolina statute does so here.