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Justices to Consider If Legislators Can Defend Voter ID Law (1)

Nov. 24, 2021, 2:54 PMUpdated: Nov. 24, 2021, 5:08 PM

The Supreme Court agreed to consider whether the GOP-led North Carolina General Assembly must be allowed to intervene to defend the state’s voter ID law, even though the state’s Democratic attorney general is already doing so.

The justices on Wednesday took up an appeal from Senate leader Philip Berger and House Speaker Timothy Moore arguing that state law specifically allows them to join the case to represent the interests of the legislature.

The leadership challenge is a procedural one and doesn’t wade into broader questions about the law requiring certain forms of identification for both in-person and absentee voting.

Instead, the legislators say that limiting representation through the Democratic attorney general risks the legislature being “deprived of the most effective defense.” They argue this is particularly the case when state government is politically divided and “the executive branch may not be enthusiastic about defending the legislature’s handiwork.”

The lawmakers noted that the 2018 law was passed over Democratic Gov. Roy Cooper’s veto.

A divided U.S. Court of Appeals for the Fourth Circuit rejected the leadership argument, saying legislators could only intervene “if a federal court first finds that the Attorney General is inadequately representing that same interest, in dereliction of his statutory duties—a finding that would be ‘extraordinary.’”

The NAACP challenged the voter ID law, saying it disproportionately harms Black and Latino voters. The Fourth Circuit refused to stop the law while the litigation works its way through the courts, and a trial on the merits is awaiting this appeal.

The question granted on Wednesday is the third case this term where the justices are considering procedural challenges to controversial state laws, asking which government officials may defend or challenge those provisions.

In Cameron v. EMW Women’s Surgical Center, Kentucky Attorney General Daniel Cameron is asking to intervene to defend the state’s restrictions on “D&E” abortion procedures. And in United States v. Texas, the federal government is seeking to challenge Texas’ six-week abortion ban.

The case is Berger v. North Carolina State Conference of the NAACP, U.S., No. 21-248.

(Updates throughout with new details and background on procedural cases)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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