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How a seemingly minor Supreme Court case could have huge implications for NC elections

·7 min read
J. Scott Applewhite/AP

The U.S. Supreme Court has announced it will hear a “motion to intervene” request from North Carolina legislative leaders in one of the state’s lawsuits over voter ID requirements.

The announcement flew under the radar. It happened the day before Thanksgiving when many were traveling — and on its face it seems fairly minor. A motion to intervene is essentially the formal way for a person or group to say, “We weren’t sued in this case originally but think we should be involved anyway, so please let us in.”

So the Supreme Court won’t be ruling on the big question of whether North Carolina’s voter ID law is unconstitutional, just on whether GOP lawmakers can be part of the legal proceedings happening now in lower courts.

But because of a new law just passed in the state budget earlier this month, whatever decision the Supreme Court ultimately reaches could actually have major implications for future elections in North Carolina.

Tucked into the budget bill was a provision that had nothing to do with money, just politics: It takes away the power of executive branch agencies and Attorney General Josh Stein to settle lawsuits involving them, if the legislature is also involved. It gives House Speaker Tim Moore and Senate Leader Phil Berger the final say on whether a settlement can go through.

Democrats have said on numerous occasions that the change is an unconstitutional power grab, The News & Observer has reported. Stein is Democrat; Moore and Berger are Republicans.

But pending any court intervention, it’s the law now. So that means if the Supreme Court does allow Republican lawmakers to intervene in this case, they can block any potential settlements that might eliminate or soften the state’s voter ID law. They’d be likely to do so, since they’re the ones who wrote the law in the first place.

The legislature has lost the argument to intervene so far, however, which is why it’s now going to the Supreme Court. What the justices decide could go a long way in determining whether Democrats or Republicans have more control over this case.

Republicans say voter ID is needed to combat voter fraud. Democrats say fraud is nearly nonexistent and that the real motivation is to discourage Black people from voting since they’re less likely to have IDs. In 2016, an exhaustive state audit found there was one case of in-person voter impersonation in North Carolina out of 4.8 million ballots cast.

Who should defend voter ID?

If the lawmakers are allowed to intervene they would likely hire outside lawyers from politically connected firms, as they have in other recent lawsuits, rather than using attorneys from the Department of Justice, which Stein runs. The lawyers representing them in their motion to intervene are from the Washington, D.C., firm of Cooper & Kirk, which the lawmakers also hired for a separate, state-level lawsuit over voter ID.

A three-judge panel ruled 2-1 in that state-level case in September that voter ID is unconstitutional, although it’s now under appeal. The legislature is part of that state lawsuit but, so far, not the federal lawsuit over the same law.

Sen. Danny Britt, a Republican from Lumberton who chairs the Senate Judiciary Committee, said Stein has been fighting the legislature’s attempts to intervene in the federal case. Britt also recently announced, when he was named the N&O’s “Tar Heel of the Month” for November, that he’s considering running against Stein for attorney general in 2024.

“Josh Stein has put more effort into keeping the legislature out of this case than he has into actually defending voter ID,” Britt told the N&O in a written statement. “He opposes voter ID and can’t be trusted to defend the decision of voters to amend the constitution.”

Currently the only defendants in the lawsuit are the members of the N.C. State Board of Elections — three Democrats and two Republicans. It’s the duty of Stein’s office to represent them. And they’ve been fighting it for nearly two years. While Republican legislators say they don’t trust Stein to defend the law, legal filings indicate he has been doing just that.

On Oct. 2 a motion bearing the names of Stein and two attorneys in his office asked for the challengers’ claims to be thrown out via summary judgment. They wrote that there are “no genuine issues of material fact which support plaintiff’s claim of an alleged violation of constitutional rights or the Voting Rights Act by any of these defendants.”

The plaintiffs, led by the N.C. NAACP, have opposed that since it could end their case. But on Monday Stein’s office doubled down in a new reply brief, stating that there is “nothing to suggest the General Assembly used racial data to disproportionately target minority voters” in this new version of the law.

Regardless, Berger and Moore remain keen to intervene.

“We will mount a vigorous defense of the law on behalf of the citizens of North Carolina,” Moore said in a press release Wednesday.

And beyond the question of making decisions about possibly settling the lawsuit, there’s another big question at stake: What happens next, if the law is found unconstitutional?

Who gets to appeal?

Republicans are likely hoping to avoid a repeat of 2016, when their last attempt at a voter ID law was ruled racially discriminatory and unconstitutional. In that case the federal Fourth Circuit Court of Appeals ruled that GOP leaders had written the law to intentionally “target African-Americans with almost surgical precision.”

That version of the law had allowed IDs that white voters were more likely to have, and excluded IDs that Black voters were more likely to have, The Washington Post reported at the time. Republicans also made changes like getting rid of Sunday voting and other parts of early voting, since state data showed those days were popular with Black voters.

In their unanimous ruling, the judges wrote that it was “as close to a smoking gun as we are likely to see in modern times” pointing to racial motivations behind election law changes.

It was a harsh ruling, but there was one potential recourse for GOP leaders: the U.S. Supreme Court, where a conservative majority on the court had just recently struck down part of the Voting Rights Act of 1965.

Then Attorney General Roy Cooper, a Democrat, declined to appeal the case to the Supreme Court. In early 2017 Cooper was sworn in as governor; Stein replaced him as attorney general and also declined to appeal. Republican lawmakers did eventually appeal the ruling anyway, but the Supreme Court shot them down without hearing the case, noting the opposition of the attorneys general.

So legislative leaders soon began drafting a new and more inclusive version of the law, in hopes that courts would allow it. In 2018 they got a Black Democrat in the state senate, Joel Ford, to co-sponsor the new version after he was defeated in the Democratic primary for his Charlotte seat.

Ford continues to support the new version of voter ID, which lawmakers wrote after voters approved a constitutional amendment backing it in 2018, with 55% of the vote. If the Supreme Court does allow them to intervene, GOP leaders will have the ability to emphasize all that in any potential trial.

But they also think it’s just common sense that they should be part of the lawsuit.

“We’re happy the Supreme Court will decide whether the legislature can defend the law it wrote,” Britt said.

The trial had originally been scheduled for January. But because of this and and other side-battles, the trial has since been indefinitely delayed.

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