Instaappointment image

LDF Files Amicus Brief with Ranking Member Rodney Davis in the US Supreme Court

Home  /  Uncategorized  /  LDF Files Amicus Brief with Ranking Member Rodney Davis in the US Supreme Court

18.Jan, 2022 Comments Off on LDF Files Amicus Brief with Ranking Member Rodney Davis in the US Supreme Court Uncategorized

LDF Files Amicus Brief with Ranking Member Rodney Davis in the US Supreme Court

On January 18th, 2022, Lawyers Democracy Fund joined with Ranking Member Rodney Davis of the Committee on House Administration to file an amicus brief with the United States Supreme Court in Berger v. North Carolina State Conference of the NAACP.


This case presents important questions concerning a state’s ability to defend its duly enacted laws when the official tasked with defending these laws refuses to do so, for various reasons.


In 2013, the North Carolina General Assembly passed, and then-Governor Pat McCrory signed into law, an election bill that created a photo ID requirement and made several other changes to the state’s voting system. The law was immediately challenged in North Carolina State Conference of NAACP v. McCrory and was later struck down by the Fourth Circuit. As a vocal critic of the bill, then-Attorney General Roy Cooper refused to defend the law for partisan reasons. The state was therefore forced to file a petition for certiorari seeking review of McCrory without AG Cooper’s help. The petition was ultimately denied by a split 4-4 vote by the Justices.


However, this did not stop the General Assembly from enacting N.C. GEN. STAT. § 120- 32.6(b) to permit the Speaker Pro Tempore and the Speaker of the House of Representatives, as agents of the General Assembly, to intervene as of right in federal litigation to ensure the duly enacted laws of North Carolina are properly defended should the Attorney General fail to mount an adequate defense.  The validity of this statute now sits before the United States Supreme Court.


This case will have a profound future impact on states’ abilities to defend their duly enacted laws when the official tasked with defending the law cannot be trusted to do so zealously, particularly for partisan reasons. LDF and Ranking Member Davis filed this amicus brief to support Petitioners’ right of intervention to defend North Carolina’s new voter ID law.



Excerpt below:



“The North Carolina statute at issue in this case is a commonsense solution to an increasingly common problem: the official charged with defending state law (typically, the attorney general) sides with the plaintiffs challenging the law, not because a defense would be frivolous, but because the official believes it would be good policy to repeal the law. The motives for this maneuver are often partisan. A state’s attorney general may belong to a different party or ideological faction from the party or faction controlling the legislature that enacted the law. By declining to defend the law from a challenge brought by likeminded or politically allied plaintiffs, or to appeal an adverse judgment, the attorney general can work around both legislative and judicial processes to achieve an outcome adverse to the policy choice of the state legislature and the legal judgment of the courts—sometimes without doing any work at all. That problem is especially acute in election cases, which are frequently partisan contests bankrolled by big partisan donors.


According to the en banc majority of the Fourth Circuit, a state is powerless to thwart such mischief. Even if the state enacts a law—as North Carolina has done—designating someone other than (or in addition to) the attorney general to defend state law, that someone may still be excluded from the case, under a Rule 24 presumption that the attorney general’s defense is adequate. And so long as the attorney general is mounting even a merely pro forma defense of the law, intervention of the state officials designated by 5 the state may be prohibited, thus empowering the attorney general unilaterally to later abandon that defense or decline to appeal an adverse but vulnerable judgment or petition this Court for certiorari. It is that latter scenario that actually occurred in North Carolina—and in other significant election-law cases—and created the impetus for the North Carolina General Assembly to establish its officers as necessary parties in challenges to state laws.


The decision below enjoys no support in this Court’s precedents. They hold that the state is empowered to decide who represents it. If state law clarifies that the attorney general’s representation is inadequate, that view binds the federal courts. In other words, just as state law—not federal law—has traditionally vested defense authority in state attorneys general, state law can make a different choice, and there is no federal basis to countermand the state’s choice. Because North Carolina determined that its attorney general is not exclusively entrusted with authority to speak for North Carolina, and has assigned the legislature, through its legislative leaders (“Petitioners”), the choice of defending the law in court in the state’s name and on its behalf, this Court’s precedents command the lower federal courts to respect that decision and permit intervention.


The decision of the court below is erroneous because it applies federal intervention standards under Rule 24 without reference to that precedent. The question whether the state’s interest in defending its own law is adequately represented can only be addressed by reference to the state’s own choice of where 6 adequate representation lies. North Carolina has plainly spoken to that question, indicating that the attorney general’s representation is inadequate per se where the legislative leaders exercise their option to defend the law. There is no basis for a federal court to conclude that state officials are adequately defending the law when the state has designated different officials with that determination.


The Court should clarify these principles and reverse the en banc judgment below.”



To read LDF’s brief, click here.









Comments are closed.