by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
In an 8-1 ruling written by Justice Neil Gorsuch, the United State Supreme Court upheld the right of legislative leaders to intervene in a lawsuit over North Carolina’s voter ID law. Only Justice Sonya Sotomayor dissented.
The ruling, in Berger v. North Carolina NAACP, will allow attorneys working for the General Assembly to defend the ID law in federal court. The reasoning of the court is simple; sometimes the attorney general opposes the law he is supposed to defend (pages 2-3):
Sometimes leaders in different branches of government may see the State’s interests at stake in litigation differently. Some States may judge that important public perspectives would be lost without a mechanism allowing multiple officials to respond. It seems North Carolina has some experience with just these sorts of issues. More than once a North Carolina attorney general has opposed laws enacted by the General Assembly and declined to defend them fully in federal litigation.
In short, if an attorney general cannot be trusted to vigorously defend a law, lawmakers must have the ability to defend the law themselves. That is especially important given Attorney General Josh Stein’s history of failing to protect voter ID in North Carolina.
The majority opinion also makes it clear that ruling against the legislature intervening in the case would open the floodgates to lawyers shopping around in order to get defendants who do not have an interest in defending the law the lawyers want to overturn (pages 12-13):
Yet, contrary to the premise implicit in the NAACP’s argument, a
plaintiff who chooses to name this or that official defendant does not necessarily and always capture all relevant state interests. Instead and as we have seen, where a State chooses to divide its sovereign authority among different officials and authorize their participation in a suit challenging state law, a full consideration of the State’s practical interests may require the involvement of different voices with different perspectives. To hold otherwise would risk allowing a private plaintiff to pick its preferred defendants and potentially silence those whom the State deems essential to a fair understanding of its interests.
In other words, those seeking to get rid of North Carolina election laws cannot simply play red rover and ask for Stein and the Democratic-controlled North Carolina State Board of Elections to come over to defend election laws they do not like.
The voter ID lawsuit itself is still working its way through the federal court system.