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North Carolina lawmakers vying to defend voter ID law find receptive high court audience

With a Democrat in the governor’s mansion, Republican lawmakers are the last lifeline for an embattled strategy that would make voting more difficult.

WASHINGTON (CN) — The Supreme Court offered a good outlook Monday for North Carolina Republicans who want to take up the mantle in defense of a 2018 law that would require voters to show photo identification at the polls.

Chief Justice Roberts said it would be pretty unusual for courts to decide who gets to defend laws, especially in political conflicts. 

“That's a pretty difficult eyebrow-raising thing for a federal court to do when you have a political controversy on with two different entities, each one having a right to intervene under state law as far as the state's concerned,” the Bush appointee said. 

Roberts then asked the North Carolina State Conference of the NAACP — the group that sees voter ID as an illegal impingement on the right to vote — what it fears will happen if Republicans are given the chance to defend the law. 

“It does seem a little unfair to me that you're asking us to let to pick your opponents,” Roberts said. “I'd rather have only one person arguing against me rather than two, but I think that's a little bit of a conflict there, I mean, what are you afraid of?” 

Justice Stephen Breyer remarked that state legislatures have strong interests in elections. 

“The state legislature in an election case has a pretty strong interest,” the Clinton appointee said. 

Two North Carolina Republican lawmakers — Philip Berger and Timothy Moore — want to intervene in a federal suit where North Carolina’s Democratic Governor Roy Cooper is the defendant, at least in name. Cooper declined to defend an earlier version of the law and then vetoed its current version. Because the Republican legislature overrode that veto, however, the voter ID requirement was able to take effect. A panel of state judges in turn struck down the law as racially biased, but a federal case is still pending.

Twice already, a U.S. district court has denied efforts by Berger and Moore to intervene. The Fourth Circuit heard the case en banc and ruled against the lawmakers in June. 

At oral arguments Monday, the lawmakers leaned on a recent Supreme Court decision that bends in their favor. 

“This court recently in Cameron held there are deep constitutional considerations implicated when a federal court is called to pass upon the constitutionality of the state law, and thus a federal court must account for a state designating multiple officials to defend its sovereign interests,” said David Thompson, an attorney with Cooper & Kirk representing the lawmakers. “There is no basis in this case for a federal court is to second guess a state's decision that it needs a representative exclusively focused on vindicating state law.” 

The NAACP argues that Cooper’s representation of the state is adequate, and that there is a federal interest in states speaking with one voice during litigation. 

“From the vantage point of federal law, the state as a unified entity is what matters for federalism purposes, and it's the state that has the sovereign interest in defending state law,” said Elisabeth Theodore, an attorney with Arnold & Porter Kaye Scholer representing the NAACP. “Where one state representative decides to no longer represent that interest — like in the Cameron situation — then a properly appointed state representative can come in to vindicate the interest that's no longer being represented. That's the same way federal law requires the United States to notify Congress to enable intervention when it stops defending a statute.” 

North Carolina Deputy Solicitor General Sarah Boyce said the lawmakers cannot argue that the law isn’t being adequately defended. Boyce also urged the justices to make a ruling that would violate North Carolina state law. 

“Petitioners read two state statutes to give them the right to represent the state's interest in enforcing the law,” Boyce said. “That construction would violate the North Carolina constitution. Thus, whether or not the petitioners are permitted to intervene in this case, we urge the court not to adopt the erroneous reading of state law, which would violate our state's separation of powers.”

Justice Elena Kagan seemed to be looking for a compromise between the two positions. 

“As long as they said we're not representing the state's interest, we're representing the specifically legislative interest, which is not represented by the attorney general, would you be like come on in under intervention of right,” the Obama appointee asked the state. 

Justice Sonia Sotomayor pointed out that the North Carolina Supreme Court could make the whole case moot. 

“If you lose there, then this case becomes moot,” the Obama appointee. 

The state Supreme Court argument has not yet been scheduled but is presumed to be argued this summer. 

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