Questions about who represents the state — General Assembly or governor — have landed at the U.S. Supreme Court in North Carolina’s voter ID case with “push-me-pull-you” arguments reminiscent of Doctor Dolittle’s fictional two-headed creature.
Republicans at the helm of the General Assembly contend they speak for the state and want to push the case forward for review by the justices.
Democrats in the governor’s and state attorney general’s offices who want to pull the case from further review argue that legislators are not a party to the nearly four-year-old lawsuit, and therefore not the ones to speak for the state.
That stance would leave in place a lower-court decision that overturned the 2013 elections law overhaul that curbed some early voting and registration opportunities, as well as required voters to show photo identification cards to vote.
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Republicans, upset by the legal strategy employed by Gov. Roy Cooper and Attorney General Josh Stein, lodged their complaint with the U.S. Supreme Court in late February, asking to be named as a party to the suit. They say they represent the state.
Stein responded to that request this week. He not only challenged the assertions made by the private attorneys that he had no authority to dismiss the state as a party seeking the high court’s review. Stein also rejected the attorneys’ contentions that he had a conflict of interest because he testified as a witness at the trial questioning the constitutionality of the 2013 law.
Stein, a former state senator representing Wake County, was one of several lawmakers who testified at the two-part trial in 2015 and 2016. Stein’s father, Adam Stein, a Chapel Hill civil rights lawyer, represented challengers of the law, but he withdrew from the case after his son’s election in November.
Attorneys for the Republican leadership, seeking to be named as parties in the lawsuit, argued that Stein was violating ethical rules that prohibit attorneys acting as witnesses and lawyers in the same case.
“That thicket of conflicts of interest ought to prevent General Stein from participating as an attorney in this case at all,” Washington-based attorneys Kyle Duncan and Gene Schaerr stated in a Feb. 27 document submitted with Raleigh-based attorneys Thomas Farr, Philip Strach, husband of the state Board of Elections director, and Michael McKnight.
“The Attorney General’s testimony, which mainly involved matters of public record, did not give him a ‘personal interest’ that limits his ability to fulfill his duty to represent the State,” stated the response filed by Stein and Grayson G. Kelley, chief deputy attorney general and counsel of record in the case. “In addition, the bar on lawyers’ acting as witnesses and advocates at trial does not extend to a lawyer’s advocacy on appeal. In sum, the General Assembly’s ethical arguments are not only irrelevant, but meritless.”
The Stein-Kelley document submitted on Thursday pointed out that other legislators had been served subpoenas by the challengers to testify in the case.
The challengers at one point tried to subpoena Senate leader Phil Berger, a Republican from Rockingham County, and House Speaker Tim Moore, a Republican from Cleveland County, to build their record before the trial about why the law was passed.
But Berger and Moore sought to quash the subpoenas and were not called to testify at trial.
“At no point did Senator Berger, Representative Moore, any other legislator, or the General Assembly itself seek to intervene as a defendant,” the attorney general’s response to the Supreme Court states.
But in their petition to the Supreme Court in late February, attorneys for the lawmakers argued that the General Assembly represented the state, and that Stein’s office should represent the legislature’s wishes. They contended that he never consulted the lawmakers about his plans, and the governor’s plans, to withdraw the request for the country’s highest court to review the 4th U.S. Circuit Court of Appeals decision overturning the 2013 law.
They contended Stein was violating a law that gives the legislature the authority to hire private attorneys to make its case.
“North Carolina law expressly authorizes the General Assembly to act on behalf of the State in retaining private counsel to defend challenged laws and to designate that counsel as lead counsel with ‘final decision-making authority,’” the lawmakers’ attorneys argued in their February filing.
Stein disputed that argument. “Seeking to derail this ministerial process, the North Carolina General Assembly has fired a barrage of state-law arguments, seeking to create confusion about who controls state-related litigation in North Carolina,” the Stein-Kelley court filing said. “... A state-law dispute over which branch of North Carolina government controls state-related litigation does not belong in this Court.”
Questions of balance of power within the state are being reviewed by a three-judge panel of state Superior Court judges. They are presiding over a lawsuit filed by Cooper challenging the law adopted in December, shortly before he took office, that revamps the state elections board and ethics commission. The lawmakers not only limited the governor’s power to appoint the majority of members to the board that oversees elections in the state, they also stepped in with a law that gives the Republican-controlled Senate the power to reject the governor’s appointees to 10 key Cabinet posts.
The governor has argued in that case that lawmakers overstepped their authority under the state Constitution in those incidents, crossing the line that separates the powers of the three branches of government — the legislative, executive and judicial branches.
Attorneys for the lawmakers have argued in that case that though the state Constitution guarantees a separation of powers, it does not guarantee that those powers are equal. They argued the General Assembly wields more power than the governor.
The state attorney general argued in the federal case that even if the U.S Supreme Court chose to decide whether the governor or the General Assembly represents the state, he disagreed with the lawmakers’ contention about the breadth of the state law that allows them to hire private attorneys to represent their interests.
Any “argument that the words ‘the General Assembly’ mean ‘the State’ would lead to an absurd result: authorizing both the Governor and the General Assembly to appoint counsel to represent the entire State,” Stein’s court document states.