Supreme Court gave top NC Republicans a spot at the defense table. One may regret it.


The News & Observer

There is irony in the U.S. Supreme Court ruling released Thursday that upheld the right of Republican legislative leaders to intervene in a lawsuit challenging North Carolina’s voter ID law.

The court ruled 8-1 that the legislators have a right to be part of the state’s defense when they think that state Attorney General Josh Stein, a Democrat and likely gubernatorial candidate in 2024, is not providing a strong defense of the voter ID law his party opposes.

That’s fair enough. Indeed, Stein himself had no objection to lawyers for House Speaker Tim Moore and Senate leader Phil Berger joining him in the defense. It was a federal court that saw no need for more players in the case.

The Supreme Court overruled the lower court, noting that civil procedure favors the right of parties to intervene when they feel their views are not being adequately represented. The irony is that Republicans benefited from a preference to listen to all sides in a case in which, the NAACP argues, Republicans are seeking to reduce the ability of Black voters to be heard.

In 2016, a federal appeals court panel called an earlier version of the state’s voter ID law an attempt to reduce Black votes “with almost surgical precision.” Now Republican lawmakers have made their voter suppression law less obvious and they want the courts to deny another challenge to it.

A federal district court found that Stein’s office, representing the State Board of Elections in the case, has provided an effective defense of the voter-ID law. For instance, the state’s lawyers successfully opposed the district court’s order that temporarily suspended the law. The court was sympathetic to Republicans’ concerns an adequate defense, but its decision primarily rested on the lawmakers’ right to defend their laws.

That didn’t stop Berger from portraying Stein on Thursday as an attorney general shirking his duty to defend the state. Berger said in a statement: “Gov. Cooper and Attorney General Stein’s opposition to voter ID has resulted in them intentionally sandbagging the defense of a law the majority of North Carolinians support. Today the U.S. Supreme Court affirmed that.”

Laura Brewer, spokeswoman for the attorney general said, “Our office has never opposed the legislature’s involvement in this case, and we welcome their participation now, notwithstanding their baseless, partisan sniping.”

In her dissent, Justice Sonia Sotomayor defended the lower court’s judgment that the voter-ID law has been adequately defended. In finding otherwise, she said, the Supreme Court’s majority made a glib assumption about a case from which the justices are far removed from the circumstances.

The Supreme Court ruling adds to North Carolina Republicans’ weakening of the checks and balances that depend on a separation of the state government’s legislative, judicial and executive branches. The Republican-led General Assembly has stripped the governor of some appointment powers and added partisan labels to judicial elections.

Now Berger is ready to have a role in the defense. He said, “I’m thankful for today’s ruling and look forward to fighting to implement our state’s voter ID law.”

The Senate leader may not always be grateful for this green light to get more deeply involved in legal challenges to state laws. In such cases, Berger and Moore are often named as nominal figures connected to the case only through their titles. But as they assert their rights to dictate legal strategy and decide on settlements, they are becoming real actors in the case.

That could complicate cases in which lawsuits naming Berger come before the state Supreme Court where the senator’s son, Justice Phil Berger Jr., sits. Justice Berger has refused to remove himself in one such case, presumably because his father is named only in his capacity as president pro tempore of the Senate.

Justice Berger’s refusal to recuse, already suspect, will become a blatant affront to judicial standards now that his father has decided to become part of the defense team when state laws are challenged.

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