NC voter ID case argued before Supreme Court, in a small step with big repercussions
For the third time this month, state leaders went to the U.S. Supreme Court Monday over voting rights issues that could have implications for future elections in North Carolina.
Monday’s action — oral arguments in the early stages of a voter ID lawsuit — came on the heels of two separate issues related to redistricting.
The arguments the justices heard Monday weren’t on the merits of North Carolina’s 2018 voter ID law itself, but rather on the more basic question of who should be allowed to defend that law in the lawsuit filed by the NAACP soon after it was passed.
While seemingly minor, the justices’ decision could have significant political and legal ramifications.
The state has been defending the lawsuit so far with lawyers from the N.C. Department of Justice, which is led by Democratic Attorney General Josh Stein. But Republican legislative leaders have asked to intervene. That would let them have more say over the legal strategy, plus hire their own private lawyers to work on the case.
“We can point to the fact we have a different perspective,” David Thompson, a lawyer for the legislators, said in response to a question from Justice Amy Coney Barrett. “We’re a separate, co-equal branch of government.”
The 2018 voter ID law was passed after a previous version of the law, from 2013, was ruled unconstitutional for racial discrimination. In that case, after the state lost at the 4th Circuit Court of Appeals, the U.S. Supreme Court never took it up.
The reason? It was all happening in late 2016 and early 2017, right around the time Stein replaced Roy Cooper, who had just been elected governor, as attorney general. In Cooper’s final months as attorney general he announced he would not ask the Supreme Court to take the case, saying the law was clearly unconstitutional and appealing it further would be a waste of taxpayer money. GOP leaders then hired outside lawyers to appeal it. But soon after Stein took office in 2017, he asked the Supreme Court to dismiss that appeal, and the court agreed.
Republican lawmakers vehemently disagreed with how that case ended. Part of the reason they want to be involved in this new voter ID case is to make sure a similar scenario can’t happen again.
Sarah Boyce, an attorney from Stein’s DOJ, told the Supreme Court justices Monday that she and her colleagues have been winning this new case so far and that the legislature “cannot plausibly argue that the attorney general and state board are not adequately defending the voter ID law.”
Power grab, or good government?
Intervening in the case would also give GOP lawmakers the ability to kill any potential settlement agreements that the N.C. State Board of Elections might consider in the future. The elections board has a 3-2 Democratic majority, appointed by Democratic Gov. Roy Cooper.
The legislature never previously had veto power over legal settlements made by executive branch agencies. But in the new state budget passed into law late last year, lawmakers gave themselves the power to do so in any case they’re a defendant in, or have intervened in.
That request was denied by the trial court judge overseeing the case, but now the Supreme Court will have the final word. It’s unclear when the court’s decision might come.
Democrats unsuccessfully objected to the new rule about who can settle lawsuits, calling it an unconstitutional power grab. Cooper, however, signed the budget into law.
The News & Observer previously reported that the state budget took power from Cooper and Stein in several other ways as well, including limiting the governor’s ability to declare a state of emergency. That followed conservative outcry over mask mandates and other COVID-19 responses that Cooper used a state of emergency to enforce.
More voting cases at SCOTUS
While Monday’s argument was over voter ID, Republican lawmakers have also recently brought the Supreme Court two other appeals on voting and elections issues. Both were related to the state’s high-profile gerrymandering case, and one is still pending.
The first redistricting appeal came after the N.C. Supreme Court ruled that the new congressional districts the North Carolina legislature had drawn were unconstitutionally gerrymandered for GOP advantage, and then a state trial court ruled that the legislature’s proposed replacement maps were also unconstitutional. Lawmakers asked the U.S. Supreme Court to step in and override those decisions, allowing their maps to be used. The court declined.
After that request failed, the GOP-led legislature then asked the court to consider a broader, more controversial argument — that state courts should have no authority to issue any rulings that would affect any part of federal elections, including gerrymandering but also any other topic.
The Supreme Court has shot down that argument multiple times in the past, legal experts say. But there are now at least four justices interested in hearing the legislature’s arguments, The N&O previously reported, so that case will likely be allowed to be argued.
For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at https://campsite.bio/underthedome or wherever you get your podcasts.
This story was originally published March 21, 2022 at 3:29 PM.
