More on the Morass of North Carolina Law on Who Can Represent the State in NC Voting Litigation Before SCOTUS

Yesterday I wrote this piece at Slate suggesting that NC Governor Cooper withdraw the pending Supreme Court cert. petition in the case considering North Carolina’s strict voting law. I pointed to this statute giving the governor and AG, now both Democrats, the right to control that litigation over the Board of Elections.

In response, Brent Wilcox pointed to another statute making the AG have to represent the General Assembly (which supports the voter id law) when a state statute is at issue, giving the GA the right to employ outside counsel that can supplant the AG, but also giving the governor the right to “employ counsel on behalf of the State.”

It seems like a real mess, with a decent (but not ironclad) argument that the governor would have the right to withdraw the cert petition, and a very strong argument that at least the governor can file a brief or letter with the Supreme Court urging it to decline review.

The full mess of North Carolina law is explained in this excellent article, John Harris, Holes in the Defense: Evaluating the North Carolina Attorney General’s Duty to Defend and the Responses of Other Government Actors.  There is an extensive discussion of the morass, beginning on page 2048.  One small snippet:

The waters become even muddier if and when the legislative branch enters the fray. Recall that there is no clear legal authority for the General Assembly to hire its own counsel to represent the State, whether in addition to or in place of the Attorney General. This would arguably violate the arrangement contemplated by the Constitution, in which the power to defend the laws of the state rests with the executive branch. On the other hand, the Attorney General’s constitutional duties are merely “prescribed by law,” which gives the General Assembly wide latitude to legislate the inner workings of inter-branch relationships when it comes to the defense of state laws.


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