GOP Lawmakers Face Uphill Battle to Join Voter ID Case at En Banc Court

(Michael Holahan/The Augusta Chronicle via AP)

RICHMOND, Va. (CN) — The full Fourth Circuit seemed hesitant Monday to allow Republican members of the North Carolina Legislature to intervene in a dispute over the state’s voter ID law. 

While a three-judge panel of the Richmond-based appeals court threw out an injunction against the law last week, procedural parts of the case brought by the NAACP continue to work their way through the legal process. 

Monday morning’s hearing before the en banc court, held remotely due to the coronavirus outbreak, dealt with who has the authority to defend state laws rather than the merits of the law requiring North Carolinians to show photo ID at the polls.   

The hearing opened with arguments from Pete Patterson from the Washington-based firm Cooper & Kirk, representing the state legislators trying to intervene in the case.

He pointed to sections of state law suggesting the Legislature can decide the course of legal defense if its members find the state’s attorney general has not adequately defended a statute.

In this case, Patterson argued Democratic Attorney General Josh Stein did not seek a stay on behalf of the State Board of Elections after a federal judge struck down the voter ID law last year. While a motion for stay was not filed, the board did appeal the ruling to the Fourth Circuit.

Patterson said the state board’s main job “is running elections,” pointing to filings that showed board members did not seek an initial stay over “administrative concerns.”

“But that could, under [precedent], lead to a different approach in this,” Patterson added, arguing the lack of action by the board or attorney general showed inadequate lawyering that should empower the Legislature to intervene.

U.S. Circuit Judge Paul V. Niemeyer, a George H.W. Bush appointee, seemed open to that suggestion. He pointed to the relevant statue, which says legislative leadership “shall possess final decision-making authority with respect to the defense of the challenged act of the General Assembly or provision of the North Carolina Constitution.” 

“The Legislature has enacted [state law] and says they have the right to determine the defense to a law challenge,” the judge said. 

But U.S. Circuit Judge J. Harvie Wilkinson, a Ronald Reagan appointee who is often opposed to federal involvement in state law issues, sounded exasperated when wondering what a ruling allowing intervention would mean for the separation of powers. 

“The Legislature controls the manner of elections, but that has to do with the power of legislatures to enact laws, but it’s not enough to give standing,” he said.

Wilkinson cited the U.S. Supreme Court’s 2019 decision in Virginia House of Delegates v. Bethune-Hill, which denied state lawmakers’ request to intervene in a dispute involving the state’s electoral maps. The late Justice Ruth Bader Ginsburg wrote in that opinion that one chamber of a state legislature “cannot alone continue the litigation against the will of its partners in the legislative process.”

“There’s no power for the Legislature to step in,” Wilkinson said. “Otherwise state legislatures could be a party to every constitutional challenge.”

North Carolina Deputy Solicitor General James Doggett, representing the State Board of Elections, said the board has no formal opinion on the Legislature’s involvement but it is concerned about separation of powers. 

“The state’s constitution says the AG is selected by the people of North Carolina and their duties are proscribed by law,” he argued. “The Legislature can’t give itself power to defend a law.” 

U.S. Circuit Judge James Wynn, a Barack Obama appointee, echoed those concerns. 

“This case presents an interesting issue that is opportunistic to either party,” the judge said. “And it’s not something I’m sure we should get in the middle of.”

The en banc hearing was held before a 15-member panel after the district court and a three-judge panel ruled against the lawmakers seeking to intervene. None of the Fourth Circuit judges signaled when they might rule.

Meanwhile, the NAACP’s challenge to the merits of the North Carolina voter ID law could soon be headed for trial after last week’s Fourth Circuit ruling reversing the district court’s preliminary injunction.  

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