North Carolinians have elected a Republican legislature and a Democrat attorney general and governor. Monday, the U.S. Supreme Court heard arguments Monday about who will control voting laws in North Carolina, and perhaps the nation. The case is Berger v. North Carolina State Conference of the NAACP, and while it ostensibly concerns one voter ID case, much more is at stake.
Tar Heel Test
In December 2018, North Carolina enacted a new law requiring voter ID, which was passed over the Governor’s veto. The NAACP promptly sued the state in federal court, claiming the law would have a disparate impact against blacks and was, therefore, unconstitutional. A state’s governor or attorney general has the lawful duty to defend its laws in court. What if they refuse? That’s what the Republican majority legislature in North Carolina say what’s happening in this case. The Republican heads of the legislature want to be added to the case, to defend the law in court a job they claim the Democrat executives refuse to do.
Those Republicans lost in the 4th Circuit Court of Appeals. The court heard the case en banc, or with a panel of all the judges, reserved for important cases. They split 9-6 against the Republican legislature. Every judge on the panel appointed by a Democrat president voted no, while every judge appointed by a Republican president voted yes. The majority denied the request, because they said North Carolina is already represented by the Attorney General, and that Republicans couldn’t be added simply for strongly opposing how the AG is handling the case.
The Republican legislature appealed to the Supreme Court, arguing the U.S. Constitution’s Elections Clause delegates to state legislatures alone the power to prescribe the “Times, Places, and Manner” of holding elections. Consequently, they say legislatures are owed special considerations for these types of laws. That legislatures have a constitutional right to be heard in court on challenges to election laws. One brief submitted in the case excoriated a newer trend by AGs to change election law. It said they:
“[s]eek to modify or to set aside controversial measures of which they disapprove—but that they were not able to shape through the democratic process—by masquerading as disinterested government lawyers. When legal challenges to such measures are filed, they register an appearance on behalf of their sovereign client, but then proceed to provide a half-hearted and lackadaisical defense.”
A near majority of Supreme Court Justices seem ready to agree with the legislature. Last week, on a different case, Justice Kavanaugh said the court should hear an Elections Clause case, while Justice Alito wrote a dissent discussing the Elections Clause which Justices Clarence Thomas and Neil Gorsuch signed on to. Alito wrote:
“This Clause could have said that these rules are to be prescribed “by each State,” which would have left it up to each State to decide which branch, component, or officer of the state government should exercise that power, as States are generally free to allocate state power as they choose. But that is not what the Elections Clause says. Its language specifies a particular organ of a state government, and we must take that language seriously.”
Justice Thomas, who remains hospitalized for an infection, did not sit in on oral arguments but will rule on the case’s outcome. The court announced on Monday that Thomas, the oldest sitting Justice at 73, is not suffering from Covid-19. We should expect a ruling in the case by Summer.
~ Read more from Scott D. Cosenza.