The Supreme Court on Monday seemed prepared to rule that North Carolina Republicans can step in to advocate for a voter ID law in court that they believe the state’s Democratic attorney general isn’t fighting hard enough to defend.
The case presents a dispute about what happens in states where political parties don’t control both the legislature and top elected offices; the law was passed by the state’s Republican-controlled Legislature, but the governor and his attorney general are Democrats.
“The governor has been an implacable foe of this law,” David Thompson, representing the Legislature, told the court during 70 minutes of courtroom argument.
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North Carolina voters approved an amendment to the state Constitution in 2018 requiring a photo ID to vote in person at the polls. When the state Legislature passed a law to specify how the provision would work, it was vetoed by Gov. Roy Cooper, a Democrat. But the Legislature overrode his veto, and the measure was enacted.
The next day, the NAACP challenged the law in court. A federal judge found late the following year that the law intentionally discriminated against Black and Latino voters and unduly burdened the right to vote. The state’s Democratic attorney general, Josh Stein, has defended the law, but Republican legislators say the state’s defense has been half-hearted, more concerned with administrative issues than countering the discrimination claims.
Lower federal courts said the attorney general is doing an adequate job of defending the law, so the speaker of the state House of Representatives and the president pro tempore of the state Senate asked the Supreme Court to let them intervene in the case. State law explicitly gives them the authority to defend the laws that they pass, Thompson said.
Some of the court’s liberals questioned that position.
“What’s the conflict?” Justice Sonia Sotomayor asked. “The attorney general says the law is constitutional.”
Justice Elena Kagan, meanwhile, wondered what would happen if the leaders of the state House and Senate were in different political parties.
Elisabeth Theodore, representing the NAACP, urged the court to block the GOP leaders' move, citing federal court rules that say a party seeking to intervene in a case must overcome a presumption that the existing party is doing an adequate job.
“There’s a strong federal interest in having states speak in court with a single voice,” she said, rather than having “different state agencies duke it out in federal court.”
Sarah Boyce, the state's deputy solicitor general, said the attorney general is making the same legal arguments about the law’s constitutionality that the Legislature would. “There’s no daylight between their position and ours," she said. "There’s no evidence they want to put on that we won’t.”
But several members of the court said the Legislature should be allowed into the case. “A state legislature, in an election case, has a pretty strong interest,” Justice Stephen Breyer said.
Chief Justice John Roberts told Theodore, “It does seem a little unfair to me that you want to pick your opponents in court. What are you afraid of?”
The voter ID law in the background of the case is not one of the nation’s more demanding ones. The National Conference of State Legislatures classifies it as “non-strict.”
The law would allow voters who show up to the polls without an ID to cast a provisional ballot which will be counted if they later present a qualifying ID to the county board of elections. But another provision said the ballot must be counted if the voter states that a “reasonable impediment” prevented getting the required ID.
The NAACP challengers “have not been able to identify a single person in the state of North Carolina who would not qualify for the reasonable impairment categories,” Thompson said.
The federal appeals court reversed the trial judge on the question of whether the law discriminates. But the photo ID requirement remains blocked because of a separate challenge in state court. A panel of judges said in September of last year that the law “was motivated at least in part by an unconstitutional intent to target African American voters.”