Gov. Roy Cooper and state Attorney General Josh Stein have taken steps to end a U.S. Supreme Court review of North Carolina’s voter ID law, reversing a request made by former Gov. Pat McCrory in the final days of his administration.
But it was not immediately clear whether the request by the two newly elected Democrats to withdraw the appeal would fully end attempts to reinstate voter ID and other limitations on voting.
Cooper’s chief counsel and Stein sent a letter on Tuesday dismissing private attorneys who had been representing the state in an appeal of a ruling last year by the 4th U.S. Circuit Court of Appeals that found key provisions of a 2013 elections law overhaul unconstitutional. A three-judge panel of the appeals court ruled the law targeted “African Americans with almost surgical precision” to limit their participation in elections.
But state lawmakers countered that the private attorneys represent the state, not Cooper and Stein, making their move to discharge the attorneys invalid.
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“We need to make it easier for people to exercise their right to vote, not harder, and I will not continue to waste time and money appealing this unconstitutional law,” Cooper said in a statement announcing the step. “It’s time for North Carolina to stop fighting for this unfair, unconstitutional law and work instead to improve equal access for voters.”
In 2013, when the Republicans had control of the legislative and executive branches of state government, the lawmakers adopted sweeping elections law changes that put in place a voter ID requirement, as well as reducing the number of early-voting days and ending same-day registration and out-of-precinct voting.
In July, the appeals court panel overturned an April ruling by U.S. District Court Judge Thomas Schroeder, setting the stage for the request for U.S. Supreme Court review – filed under the administration of Republican McCrory, who was defeated in November by Cooper.
Thomas Farr, a Raleigh attorney who has represented the lawmakers for several years in the elections law case, sent a letter to William McKinney, Cooper’s general counsel, arguing that neither the governor nor Stein have the authority to discharge him and others at his firm from the case and that he and others plan to continue in the case.
If the request by Cooper and Stein to withdraw the appeal is granted, the State Board of Elections, its individual members and its executive director will not immediately be withdrawn from the case. They would have to make similar requests.
A spokesman for the state Board of Elections said the director, board members and staff learned of the decision by Cooper and Stein on Tuesday morning. A conference-call meeting had previously been scheduled for 2:15 p.m. Wednesday, but that meeting is now likely to include discussion about next steps.
North Carolina legislative leaders who shepherded the voting-law changes through the Republican-led General Assembly could continue an effort for U.S. Supreme Court review, but they would have to petition to intervene in the case. They are not named in the lawsuit.
Legislative leaders responded quickly with a statement, criticizing the legal move by Cooper and Stein but not stating whether they would seek to intervene.
The lawmakers, instead, focused on a law that they say allows them to hire outside attorneys to represent the state and questioned whether Cooper and Stein had overstepped their legal authority by discharging the outside counsel that had been representing the state.
“Roy Cooper’s and Josh Stein’s desperate and politically-motivated stunt to derail North Carolina’s voter ID law is not only illegal, it also raises serious questions about whether they’ve allowed their own personal and political prejudices and conflicts of interest to cloud their professional judgment,” Phil Berger, the Rockingham County Republican who leads the Senate, and Tim Moore, the Cleveland County Republican at the head of the House, said in a joint statement. “We expect the courts to reject this unethical stunt just as they did when Cooper tried the same trick in the ‘Choose Life’ license tag case.”
Legislative leaders intervened in the license-plate case and asked for Supreme Court review in a case they eventually won.
Cooper told reporters Tuesday after touring a North Raleigh school to promote his recently rolled-out teacher pay plan that he disagreed with the legislators’ assertions that he was overstepping his bounds by sending a letter to discharge the attorneys.
“I can decide whether I go forward or whether I decide not to go forward,” Cooper said.
Stein’s father, Adam Stein, a lawyer in Chapel Hill, represented challengers of the 2013 elections law, but left the case after his son’s election as attorney general in November.
Stein’s office stated that the lawyers for the NAACP and others who brought the lawsuit challenging the elections law overhaul have agreed to forgo the legal fees they would be awarded if the appeals-court ruling remained. Estimates done by Stein’s office after discussions with the attorneys put that at nearly $12 million in potential liability if the country’s highest court sided with the challengers.
“The right to vote is our most fundamental right,” Stein said in his statement. “Voting is how people hold their government accountable. I support efforts to guarantee fair and honest elections, but those efforts should not be used as an excuse to make it harder for people to vote.”
North Carolina is not the only state where questions about the constitutionality of voter ID laws are in the courts.
In January, U.S. Chief Justice John Roberts made an unusual move after the high court rejected review of a Texas voter ID case. Though the court decided not to take up the Texas case at the time, Roberts did not rule out the possibility of taking up voter ID issues in the future.
Roberts noted that some of the chief questions about voter ID in the Texas case — whether such laws are passed with intent to discriminate and whether they violate the federal Voting Rights Act — have not been fully decided by the lower courts.
If that happens, the high court could have its ninth justice appointed by President Donald Trump and supported by Republicans who have pushed for the ID laws.
The Trump administration also could provide an ally for voter ID advocates in its federal Justice Department, which under President Obama was a challenger in some of the cases, including the challenge of the North Carolina law.
Staff writer Craig Jarvis contributed