NC Gov, AG File Reply Brief Arguing #SCOTUS Should Dismiss Cert. Petition in Controversial Voting Case

Brief:

All of the petitioners in this case have moved to withdraw the pending petition. Thus, under normal operation of this Court’s rules, the petition should be dismissed. See S. Ct. R. 46.2(a).

Seeking to derail this ministerial process, the North Carolina General Assembly has fired a barrage of state-law arguments, seeking to create confusion about who controls state-related litigation in North Carolina. The very existence of these state-law issues confirms that the petition here should be dismissed. A state-law dispute over which branch of North Carolina government controls state-related litigation does not belong in this Court.

But even if this Court were to address the state-law arguments that the General Assembly is trying to raise here, those arguments lack merit. The statute that is the linchpin of the General Assembly’s arguments—Section 120-32.6(b) of the North Carolina General Statutes—only allows “the General Assembly [to] hire[ ] outside counsel to represent the General Assembly.” N.C. Gen. Stat. § 120-32.6(b) (emphasis added). It does not empower the General Assembly to step into the shoes of the Attorney General and control litigation on behalf of the State itself. In addition, Section 120-32.6(b) applies only to lawsuits in which the General Assembly is one of the “named parties.” During the three and a half years of this litigation, the General Assembly has never been a party to it. Indeed, before this late juncture, it has never sought to make itself a named party.

Separately, the General Assembly’s attempt to inject state-law-based professional responsibility issues into this case is as unpersuasive as it is

inappropriate. The General Assembly is not a party to this case, so it is not a client of the Attorney General here. The Attorney General is therefore under no professional or legal obligation to abide by the General Assembly’s preferences on the conduct of this litigation. Nor has any conflict of interest arisen from Attorney General Stein’s testimony as a trial witness when he was a State Senator. The Attorney General’s testimony, which mainly involved matters of public record, did not give him a “personal interest” that limits his ability to fulfill his duty to represent the State. In addition, the bar on lawyers’ acting as witnesses and advocates at trial does not extend to a lawyer’s advocacy on appeal. In sum, the General Assembly’s ethical arguments are not only irrelevant, but meritless.

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