Bench Memos

Law & the Courts

North Carolina Governor’s Supreme Court Hijinx

In late December, the state of North Carolina, its then-governor Patrick McCrory, the state board of elections, and the executive director and individual members of the state board of elections filed a joint petition for certiorari seeking the Supreme Court’s review of a Fourth Circuit ruling striking down various state election reforms. Briefing on the petition was completed last week.

Then, just yesterday, acting at the behest of new governor Roy Cooper, new North Carolina attorney general Josh Stein filed a motion confusingly titled “Motion of Petitioners the State of Carolina and Governor Roy Cooper to Dismiss the Case” (emphasis added). Contrary to the title, the motion itself asks only that Cooper and the state of North Carolina “be dismissed as parties to the case.”

Cooper had the motion filed without providing any advance notice to his fellow petitioners. Even worse, he and Stein failed to inform the leadership of North Carolina’s General Assembly, even though it was that legislative leadership that had actually retained counsel to represent the state of North Carolina in the Supreme Court proceedings. This happened after Cooper, who was then attorney general, declined to continue to handle the matter and said (per paraphrase in this article) that the “[o]utside counsel … who are already involved in the case can handle any [Supreme Court] appeals.”

In a letter yesterday, the governor’s office now claims that the two firms that the General Assembly retained to represent the state were not authorized to do so. In response, an attorney from one of the firms explains in detail that Cooper’s new claim “is completely inconsistent with the position” he took as attorney general and that the firms intend to continue representing the state.