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North Carolina lawmakers head to Washington to push for a say in voter ID snarl

With a Democrat in the governor’s mansion, state legislators who support an embattled voter ID law say their voice is key to the litigation.

WASHINGTON (CN) — The Supreme Court agreed Wednesday to hear the appeal by North Carolina legislators who have been excluded from an upcoming trial over the state's 2018 law requiring voters to show photo identification at the polls.

North Carolina's Democratic Governor Roy Cooper attempted to veto the law when it was first passed, but the Republican Legislature overrode him, setting the stage for separate lawsuits in state and federal court. Back in September, a panel of state judges struck down the law as racially biased, but the federal case still faces trial in January 2022. It is in the latter that Philip Berger, the president pro tempore of the North Carolina Senate, has been fighting to intervene alongside Timothy Moore, the speaker of the North Carolina House of Representatives.

They brought their first motion to intervene in January 2019, but, rather than appeal when the District Court denied them, they moved to intervene again two months later — this time arguing that two state statutes gave them the interest to defend the law. The District Court denied this attempt as well. 

Separate from litigation over the merits of the law, appeals over Berger and Moore's intervention rights have been ongoing. The Fourth Circuit considered the issue en banc and ruled against the Republican lawmakers 9-6 back in June. 

Taking their fight to the Supreme Court now, Berger and Moore say there is circuit split to settle and that the case presents the court with issues over state sovereignty. 

“In the face of this sovereign determination, a strong presumption of adequate representation when an executive-branch official already is defending the case does not show the proper respect for North Carolina’s determination of which agents are necessary to the defense of its laws,” Cooper & Kirk attorney David Thompson wrote in the petition for a writ of certiorari. 

Another theme of the the legislators' brief is Governor Cooper's opposition to the law. Cooper blasted the bill as having “sinister and cynical origins” when he vetoed it, insisting that it was “designed to suppress the rights of minority, poor and elderly voters.” While Cooper was dismissed from the suit in 2019, Berger and Moore argue that he still has authority to control the state board of elections. 

“Governor Cooper has allowed the State Board to defend S.B. 824 to date, but there is no guarantee that he will continue to do so,” the petition by Thompson states. “Governor Cooper’s role is thus an additional reason why petitioners are entitled to intervene. … When considering the delicate question of the constitutionality of a state law, they similarly should be sensitive to even an appearance that an existing party’s defense of the law will be inadequate — particularly when state law designates another agent essential to defending the State’s interest.” 

State Attorney General Joshua Stein meanwhile cited the dueling litigation fronts as a basis for the court to turn down the case. 

“North Carolina’s voter ID law is currently being challenged in both federal and state court,” the opposition brief states. “Either of these parallel proceedings could render this appeal moot before the court is able to decide the questions presented. This serious jurisdictional risk counsels strongly against grant of certiorari.” 

Per its custom, the Supreme Court did not issue any comment Wednesday on its decision to hear the case.

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