Justices Rule GOP Lawmakers Can Defend North Carolina Voter ID Law

June 23, 2022 by Dan McCue
Justices Rule GOP Lawmakers Can Defend North Carolina Voter ID Law
N.C. House Speaker Tim Moore, one of two Republican state lawmakers who want to intervene in an ongoing voter ID case.

WASHINGTON — The Supreme Court on Thursday held that Republican lawmakers in North Carolina can intervene to defend the state’s controversial voter-ID law, despite the fact the state’s Democratic attorney general is already defending it.

The 8-1 ruling in Berger v. NC NAACP did not delve into the underlying question of the lawfulness of the newly adopted ID requirements, but focused instead solely on which government bodies can defend the law in court. 

The underlying dispute arose after the state General Assembly enacted a new election law that said anyone seeking to vote must do one of three things — present an acceptable photo ID, complete a provisional ballot and later produce a photo ID, or submit a form explaining why they could not present one.

As noted by Justice Neil Gorsuch, who wrote the opinion for the majority, these “photo ID cards are available free of charge in each of the state’s 100 counties without the need for corroborating documentation.”


North Carolina Gov. Roy Cooper vetoed the bill, and the General Assembly promptly voted to override the veto. As a result, the new requirements went into effect on Dec. 19, 2018.

The next day, the National Association for the Advancement of Colored People sued the governor and the members of the State Board of Elections to overturn the new law.

As part of his duties, state Attorney General Josh Stein assumed responsibility for defending the board of elections.

But Republican lawmakers quickly grew concerned. Prior to being attorney general, Stein, a member of the state Senate, voted against an earlier voting ID law and signed a declaration supporting a legal challenge to it.

They also worried that, since Stein was a member of the governor’s administration, he’d be less inclined to defend the law as robustly as they’d like.

Soon, state House Speaker Tim Moore and Phil Berger, president pro tempore of the state Senate, moved to intervene, noting North Carolina law expressly authorizes them “to intervene on behalf of the General Assembly as a party in any judicial proceeding challenging a North Carolina statute or provision of the North Carolina Constitution.” 

Gorsuch said while many states mount a legal defense through the “single voice” of their attorney general, many choose not to proceed this way.


“Sometimes leaders in different branches of government may see the state’s interests at stake in litigation differently,” he wrote. “Some states may judge that important public perspectives would be lost without a mechanism allowing multiple officials to respond. 

“It seems North Carolina has some experience with just these sorts of issues. More than once a North Carolina attorney general has opposed laws enacted by the General Assembly and declined to defend them fully in federal litigation,” Gorsuch said.

This case, Gorsuch said, shows “how divided state governments sometimes warrant participation by multiple state officials in federal court.”

In dissent, Justice Sonia Sotomayor makes two points: First, the court majority goes astray by creating a presumption that a state is inadequately represented in federal court unless whomever state law designates as a state’s representative is allowed to intervene, even where the interests that the intervenors seek to represent are identical to those of an existing party. 

That presumption of inadequacy improperly permits state law, as opposed to federal law, to determine whether an existing party adequately represents a particular interest. 

Second, she said, the court errs by implying that the attorney general’s defense of the constitutionality of the voting law at issue here fell below a minimal standard of adequacy.

“In short, the court’s conclusion that state respondents inadequately represented petitioners’ interests is a fiction that the record does not support,” Sotomayor wrote. 

“In addition, the court’s armchair hypothesizing improperly displaces the district court’s firsthand experience in managing this litigation,” she continued. “States are entitled to structure themselves as they wish and to decide who should represent their interests in federal litigation. 

“State law may not, however, override the Federal Rules of Civil Procedure by requiring federal courts to allow intervention by multiple state representatives who all seek to represent the same state interest that an existing state party is already capably defending,” Sotomayor concluded.

In a written statement, House Speaker Moore said, “North Carolinians overwhelmingly support voter ID, and they deserve nothing less than the strongest representation from those who would uphold the will of the voters and our constitution, not a tepid defense by an attorney general who has a record of opposing voter ID. As stated in today’s decision, ‘More than once a North Carolina attorney general has opposed laws enacted by the General Assembly and declined to defend them fully in federal litigation.’”


He continued, “The U.S. Supreme Court has rightfully agreed with us that, without the participation of the General Assembly in defending voter ID, ‘important state interests would not be represented.’ Also, ‘ … while serving as a state senator the attorney general voted against an earlier voter-ID law and filed a declaration in support of a legal challenge against it.’ I am proud of our General Counsel and legal team for their diligent work on behalf of the voters. Rest assured, I will continue to fight to defend the will of the people for voter ID to become law as decided by the voters.”

Dan can be reached at [email protected] and @DanMcCue

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