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Federal Appeals Court Blocks North Carolina Republicans from Intervening in Lawsuit Over Voter ID Law


A federal appellate court ruled against North Carolina Republicans in their quest to join ongoing battle over the state’s controversial voter ID law. The ruling will continue to prevent GOP leaders from defending the statute against legal challenges brought by the NAACP.

The U.S. Court of Appeals for the Fourth Circuit ruled Monday that because North Carolina’s Attorney General Josh Stein (D) is already appearing to argue in support of the law, individual legislative leaders cannot intervene as formal participants in the litigation.

The statute at the heart of the lawsuit is Senate Bill 824, which was passed in December 2018, titled,  “An Act to Implement the Constitutional Amendment Requiring Photographic Identification to Vote.” North Carolina’s Democratic Governor Roy Asberry Cooper III, vetoed the bill, saying at the time, “Requiring photo IDs for in-person voting is a solution in search of a problem,” and reasoning that the law “puts up barriers to voting that will trap honest voters in confusion and discourage them with new rules, some of which haven’t even been written yet.” Cooper even went so far as to say that the bill has “sinister and cynical origins” in that it “was designed to suppress the rights of minority, poor and elderly voters.”

The North Carolina legislature was undeterred, and immediately overrode Cooper’s veto. The next move went to the NAACP, several branches of which sued Governor Cooper and several members of the North Carolina State Board of Elections in their official capacities; the lawsuit alleged that the voter ID requirement had a disparate impact on minority voters, and that the statute amounted to intentional discrimination against those voters.

State GOP leaders Philip E. Berger (the President Pro Tempore of the North Carolina Senate) and Timothy K. Moore (the Speaker of the North Carolina House of Representatives) petitioned to intervene in the lawsuit. They argued that their interests were “not adequately represented” by the existing defendants. In fact, they argued that the governor and the state attorney general “cannot be trusted to defend S.B. 824 in the same, rigorous manner as Proposed Intervenors – and very well might not defend the law at all.”

The district court ruled against Berger and Moore, finding that they had neither the right to intervene, nor a persuasive justification for permissive intervention. The court specifically found that there was no evidence that the governor, the State Board, or Attorney General Stein had abdicated their responsibility to defend the law, and that allowing Berger and Moore to participate would confuse and delay the proceedings.

Legal gamesmanship ensued; Berger and Moore filed additional motions to intervene, then appealed those motions. All the while, the underlying case against S.B. 824 was proceeding, and the district court granted the NAACP a preliminary injunction against enforcing the voter ID law.

As the trial date approaches, the issue of whether Berger and Moore can be permitted to intervene is still before the courts. Now, the full Fourth Circuit Court of Appeals has ruled against them.

The primary reasoning for the court’s ruling was that the state attorney general is already representing the GOP’s interest in the case. Circuit Judge Pamela Harris (a Barack Obama appointee), writing for the court’s nine-member majority, explained that under state law, “‘([I]t shall be the duty of the Attorney General . . . to appear for the State . . . in any cause or matter, civil or criminal, in which the State may be a party or interested.’). And consistent with that duty, the Attorney General is very much in this case, defending the constitutionality of S.B. 824, on behalf of the State Board of Elections, in state and federal courts, including our own.”

Harris disagreed that the state Republicans had distinct interests in the case, instead finding that any differences amounted to mere strategic differences in litigation strategy. Harris also addressed the Republicans’ contention that the state attorney general “is not mounting an even more aggressive defense of S.B. 824 because he, like the Governor, is opposed to voter-ID laws as a matter of public policy.”

The court found that there was no evidence what it called “a startling accusation,” and called any suggestion that the attorney general shirked his legal and ethical obligations “a disservice to the dignified work of government lawyers who each day put aside their own policy and political preferences to advocate dutifully on behalf of their governments and the general public.”

Six judges, however, dissented. Ronald Reagan-appointee Judge J. Harvie Wilkinson III bluntly framed his concerns about the attorney general’s loyalty in the case, writing:

Every attorney general who looks in the mirror sees a governor. Or so it is said. Therein lies a temptation. When a challenge is brought to an unpopular or controversial state law, an attorney general’s defense of the law may be less than wholehearted.

Dissenting in a separate opinion, Judge Paul V. Niemeyer, a George H.W. Bush appointee, argued that the court’s majority failed to property apply state law to the matter, and that the court should have recognized that this case “entails a story of political conflicts and differences between the branches of North Carolina government” by allowing representatives from each branch to represent those distinct perspectives. Circuit Judge A. Marvin Quattlebaum, Jr., a Donald Trump appointee, also penned a dissent, which was joined by fellow Trump-appointed Circuit Judge Allison Jones Rushing (one of the judges who made it on Trump’s SCOTUS shortlist after Justice Ruth Bader Ginsburg’s death).

North Carolina Sen. Danny Britt, a Republican co-chair of the state’s Senate Judiciary Committee, reacted to the court’s ruling, saying, “For the second time in less than a year, we won a case before the 4th Circuit only to have the liberal majority overrule their own three-judge panel.” Britt continued, saying, “The legislature has zero confidence in Josh Stein, who opposes voter ID, to defend the law in court. He has a demonstrated history of working with politically allied ‘opponents’ in legal cases to advance his own agenda.” Britt concluded with a promise:

We intend to be very public in our monitoring of Josh Stein’s ‘defense’ of this case over the next year, especially considering his office’s near-silence during the recent state voter ID trial. An intern could have mounted a more effective defense than Stein’s office did this spring.

Read the ruling below:

[image by Sara D. Davis/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos