Back in July, the Fourth Circuit struck down North Carolina’s “monster” voting law, a law which among other things imposed a strict voter id requirement (later watered down in the face of litigation), cutback early voting, killed same day voter registration, eliminated the counting of out-of precinct ballots, and ended preregistration of 16- and 17-year-old high school students. The court, reversing the trial court, held the law was motivated by racially discriminatory intent.
Just before the end of the year and five days before the change in governors from Republican McCrory to Democrat Cooper (and after two extensions), North Carolina filed this brief seeking Supreme Court review of the decision. The brief offers three arguments for review, including this one:
Second, the Fourth Circuit’s decision addresses an extraordinarily important question in a way that is egregiously misguided and that threatens numerous State election laws. Simply put, the decision insults the people of North Carolina and their elected representatives by convicting them of abject racism. That charge is incredible on its face given the pains the legislature took to ensure that no one’s right to vote would be abridged, and the fact that the reforms align North Carolina with the majority of current State practices. It becomes even more perplexing given that the Fourth Circuit did not disturb the district court’s findings that the reforms have no discriminatory effect. And it becomes downright absurd given that the Fourth Circuit bluntly overrode the district court’s meticulous findings on a classic fact question—intent—reached after weeks of trial. Worst of all, the basis for the Fourth Circuit’s decision is not specific to North Carolina. On the contrary, the panel’s “evidence” showing discriminatory intent would overturn election laws in numerous States. A federal circuit should not take a step of such enormity without this Court’s review.
I think there is a fairly good chance the Supreme Court takes this case for review, if the Court’s conservatives believe they will soon be joined by a fifth member. It is also possible the case will be held for resolution of Texas’s voter id cert. decision (a decision on cert in that case could come as early as tomorrow). Texas’s case, though, concerns the discriminatory effects test under Section 2 and the North Carolina case concerns discriminatory intent. Still the NC cert. petition tries to tie the two together (perhaps hoping for an eventual GVR in light of Texas).
But one interesting question is what happens to this litigation now that the governor is a Democrat who has opposed this law. When the new Governor (Cooper) was the attorney general, the old governor (McCrory) appointed private counsel to represent the state’s interest in the case. (See this interesting LA Times oped by Neal Devins and Sai Prakash on what happens when attorneys general won’t defend laws they disagree with.) But now there’s Governor Cooper. What power does he have here? Can we withdraw the case? Concede issues in the reply brief? Can the Legislature seek to intervene at this point and take over the litigation?
These all seem to me to be questions of state law as to who can speak for North Carolina, and I don’t know the answers to those questions. Would love to hear from those who do.