(CN) — Republican members of the North Carolina General Assembly pressed a Fourth Circuit panel Wednesday to allow them to intervene on behalf of the state in a lawsuit over its controversial voter ID requirements.
The North Carolina State Conference of the NAACP and smaller city-based chapters successfully sued to halt the state elections board from enforcing Senate Bill 824, which requires voters to show photo identification at the polls.
The lawsuit filed against state officials in charge of enforcing the 2018 law alleges that it is discriminatory because it would disproportionately affect black and Latino voters. The NAACP claims the law violates the Voting Rights Act as well as the First and 14th Amendments.
Last December, a federal judge temporarily blocked the law from being enforced in the state’s March primary. U.S. District Judge Loretta Biggs, a Barack Obama appointee, wrote in her 60-page opinion that discriminatory intent was likely behind the law.
Two GOP members of the North Carolina General Assembly sought to intervene, claiming that the state elections board and Democratic Attorney General Josh Stein failed to adequately defend state interests in the case. The district court denied their motion, prompting an appeal to the Fourth Circuit.
State Senator Phil Berger and state Representative Tim Moore urged the Richmond, Virginia-based appeals court on Wednesday to let the lawmakers step in to defend the voter ID statute.
“In denying the motion to intervene, the district court made several legal errors,” David Thompson, an attorney who represented the legislators, said during Wednesday’s remote oral arguments.
He said the lower court “completely ignored the General Assembly’s interest in being free of the preclearance requirements of Section 3 of the Voting Rights Act.”
Thompson was referring to a section of the landmark law that requires federal permission before new state voting laws can go into effect, if a court finds the state intentionally discriminated against voters.
Whether Stein and state election officials adequately defended the law is relevant to determining if third-party intervention is needed, the lawmakers argue.
“First, the attorney general neglected to say one word on the likelihood of success on the merits,” Thompson said.
He added that Stein also failed to submit a single expert report in the case – a claim that was later rebutted by the plaintiffs’ counsel, Stephen Wirth with Arnold & Porter.
“You are asking a federal court to say that the attorney general of a state is committing nonfeasance in violation of his statutory duties, and that, as the Seventh Circuit said, does strike me as a quite extraordinary request and an extraordinary finding for us to make,” said U.S. Circuit Judge Pamela Harris, an Obama appointee.
Thompson clarified that his side does not need to show nonfeasance by Stein in order to win on appeal, but he continued to elaborate on a perceived failure to defend the case by the attorney general.
“You want us to find, as a federal court, that the attorney general of North Carolina is engaged in sabotage of this case?” Harris asked.
“That’s not right, your honor –” Thompson began to reply.
“Then why do you keep saying these things?” Harris interrupted.
Noting instances in which Democratic Governor Roy Cooper openly expressed opposition to the voter ID statute, Thomas responded, “these are implacable political foes of this law and that is relevant.”
Election law cases are inevitably political, Harris said. She told Thompson that asking a federal court to endorse a view that an attorney general is sabotaging a court case is “unhelpful” in the court’s efforts to appear politically neutral.
“Judge Biggs properly exercised her discretion when she decided twice that the attorney general was adequately defending this lawsuit and granting intervention would derail, in a way, this litigation,” said Wirth, the plaintiffs’ attorney, urging the court to dismiss the appeal.
Stein’s contested representation of the state in the case is only one legal issue that arose during Wednesday’s hearing.
“They lack standing to intervene because they do not have a concrete particularized interest in the outcome of this litigation,” Wirth said of Berger and Moore.
This topic was interwoven throughout the oral arguments. If both plaintiffs and defendants in a case have shown standing, Thompson argued, the intervenor should not have to.
However, Thompson told the panel that the two General Assembly members have been designated the official agents of the state. He said states have “the absolute authority to designate whatever agent they want. And here we have been designated.”
Wirth ended his arguments by asking the court to dismiss the appeal for lack of jurisdiction, alleging that the Republican lawmakers did not file their appeal in a timely manner.
Attorney Paul Cox from the North Carolina Department of Justice represented the members of the state elections board.
“Our office is not saying that under no circumstances should the legislative leaders be able to intervene in a case, but that should be up to the discretion of the district court in reviewing the permissive intervention factors,” Cox told the three-judge panel.
He said the board does not oppose or support intervention, but urged the court to reject some of the arguments for intervention.
“Indeed, the [district] court’s concern that permitting intervention would hinder judicial economy has proved correct, as evidenced by the numerous appeals and motions the legislative intervenors have filed which are not directed to the merits of the case,” the elections board said in a Feb. 11 brief. “With the November 2020 general election approaching, the parties and the voters have an interest in advancing to trial and obtaining a final resolution to this dispute in the months ahead.”
Harris was joined on the panel by U.S. Circuit Judges A. Marvin Quattlebaum and Julius Richardson, both appointees of President Donald Trump.
It is unclear when the court will issue a ruling in the case.