In a surprise pre-Thanksgiving order, the Supreme Court has agreed to hear Berger v. North Carolina State Conference of the NAACP, stemming from a dispute over a North Carolina voter id law. The dispute is not about the underlying voter id law itself, but about the ability of the state legislature to intervene in defending the law against challenges.
This is a fairly common problem we see today where a state executive (governor and/or attorney general) is a Democrat and the state legislature is controlled by Republicans, and there’s a dispute over who gets to speak for the state.
Back in 2017, I wrote a Slate piece urging North Carolina’s governor to withdraw a cert. petition over North Carolina’s very strict voter id law after the 4th Circuit struck parts of it (calling them targeted at African-American voters with almost surgical precision). There was then a dispute in the Supreme Court over who gets to speak for North Carolina, and the Court, seeing the dispute, denied cert. Chief Justice Roberts was irked, and issued a statement saying that the denial was because of the dispute, not the merits:
In January 2017, a new Governor and state Attorney General assumed office. Shortly after, the new Attorney General moved to dismiss the petition, initially on behalf of only the Governor and the State. A few days later, however, the Attorney General filed a supplemental motion to dismiss on behalf of all named petitioners. The North Carolina General Assembly objected, arguing that North Carolina law does not authorize the state Attorney General to dismiss the petition on behalf of the State and instead expressly permits the Assembly to retain private
counsel to defend SL 2013–381 on behalf of North Carolina.
The Speaker and the President pro tempore of the Assembly have also filed a conditional motion to intervene, asking this Court to add the General Assembly as a petitioner in the event the Court finds that the Attorney General may withdraw the petition. The private respondents have filed a reply, arguing that the Speaker and the President pro tempore lack standing to intervene because North Carolina law does not authorize them to represent the State’s interests in federal court. According to the private respondents, the Speaker and the President pro tempore erroneously rely on a state statute that governs intervention in state proceedings.
Given the blizzard of filings over who is and who is not authorized to seek review in this Court under North Carolina law, it is important to recall our frequent admonition that “[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case.” United States v. Carver, 260 U. S. 482, 490 (1923).