This morning’s 8–1 decision in Berger v. North Carolina State Conference of the NAACP stands for an important value that is often under attack from the left: the adversarial process. The question was whether North Carolina state legislative leaders (Republicans) could intervene in a federal lawsuit over the state’s voter-ID law when the state’s elected attorney general (a Democrat) was opposed to the law and likely to undermine it in court rather than defend it. Just last week, in Arizona v. City of San Francisco, the Court declined to consider a similar issue regarding the Biden administration undermining a Trump-era rule rather than defend it in court; in Arizona, the Court found that there were too many complicating issues and dismissed it from the docket, but not before Chief Justice John Roberts warned that the federal government settling cases against it was a potentially improper way to repeal regulations without complying with the usual notice-and-comment procedures. In March, in Cameron v. EMW Women’s Surgical Center, P. S. C., the Court allowed Kentucky attorney general Daniel Cameron to intervene in an appeal defending his state’s partial-birth abortion ban when the state’s Democratic governor, Andy Beshear, tried to abandon the appeal.
This has become a common modus operandi for Democrats seeking to rig the judicial game against legislation, constitutional provisions, and ballot initiatives by colluding with the people suing to strike down these democratic enactments: lie down, refuse to defend them, reach a settlement, or wait for a lower-court ruling and abandon the appeal. In the 2013 Hollingsworth v. Perry case, a refusal to appeal prevented the Supreme Court from hearing challenges to decisions striking down California’s ban on state recognition of same-sex marriages — a ban that passed by popular vote in California in 2008 with over 7 million votes. Thus, the voters of California could get a day in court only from California federal judges who had a deeply vested interest in ruling on one side of the case. Not every law passed by the voters should survive a court challenge, but a duly enacted law representing the public will ought to be struck down by the courts only after a full, fair adversarial presentation of the issues. That is the American way; it conflicts with the progressive supervised-democracy model in which officials who lack the constitutional power to repeal a law can nonetheless kill it permanently by temporary non-enforcement and non-defense.
There was a similar problem here: The North Carolina voter-ID law was passed over a veto by Democratic governor Roy Cooper, and Democratic attorney general Josh Stein had not only voted against the state’s prior voter-ID law as a state senator, he helped the NAACP — the party suing against the current law — in its lawsuit against the prior law, by submitting a sworn declaration supporting its position. So, North Carolina’s legislative leaders made a motion to intervene in the case as parties, to defend the state’s laws and prevent the case from settling without their consent. The relevant rule of federal court procedure, Rule 24(a)(2), provides that a “court must permit anyone to intervene” who “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest,” unless “existing parties adequately represent that interest.”
As Justice Neil Gorsuch’s opinion for the majority noted, North Carolina law explicitly authorizes the leaders of the legislature to intervene in this situation. So, the immediate question was whether they qualified to do so under the federal rule. Gorsuch deferred to state law on whether the North Carolina legislative leaders had a sufficient interest in the case, so the issue came down to whether the attorney general would adequately defend the law. The Court rejected the idea that courts should just presume adequate representation where state law has explicitly authorized some other party to intervene: “a presumption of adequate representation is inappropriate when a duly authorized state agent seeks to intervene to defend a state law.” That law existed for a reason: “More than once a North Carolina attorney general has opposed laws enacted by the General Assembly and declined to defend them fully in federal litigation.” And the facts of Stein’s approach to defending Cooper and the North Carolina State Board of Elections gave reason to believe that a more thorough defense might come from someone who actually wanted the defense to succeed:
When confronted with a motion for a preliminary injunction, the Board declined to offer expert-witness affidavits in support of S. B. 824, even though its opponent offered many and the legislative leaders sought to supplement the record with their own. After the District Court issued its (ultimately overturned) injunction, the Board declined to seek a stay. That tactical choice, motivated by the Board’s overriding concern for stability and certainty, meant that the State could not enforce its new law during a statewide election [the March, 2020 primary election]. Throughout, Board members have been appointed and potentially removable by a Governor who vetoed S. B. 824 and who filed his own briefs in this litigation calling the law “unconstitutional” and arguing that it “should never go into effect.”
This was enough to convince even Justices Stephen Breyer and Elena Kagan to join the majority; only Justice Sonia Sotomayor was willing to entertain the fiction, in dissent, that Stein was putting up an adequate defense. Sotomayor argued that Stein and the legislative leaders “share the same interest: ensuring the validity and enforcement of S. B. 824. . . . [The legislative leaders] seek only to represent the State’s interest in defending state law, an interest that [Stein and the Board] already represent.” She claims that declining to fight for enforcement of the voter-ID law while the litigation was proceeding “was merely a choice about litigation strategy,” as if elected Democrats were Solomonically disinterested in the outcomes of the 2020 elections (specifically the March 2020 primaries, but at the time, the general election loomed in the background, including Cooper’s own reelection bid). Of course, nobody actually believes this.
Looming in the background is another, broader issue: When, exactly, does the Supreme Court take a state’s internal allocation of powers at face value, and when does it not? This has been a particularly recurring issue in election law cases, because the elections clauses of Article I, Section 4, and Article II, Section 1, refer to presidential electors being selected in each state, and the “Times, Places and Manner of holding Elections” for Congress in each state, as matters determined “by the Legislature thereof.” The Court has returned a number of times to what “the Legislature” means. In Smiley v. Holm (1932), for example, it held that a state’s normal legislative process still allows a governor to veto an election law. In Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the Court allowed a state constitution to hand a legislative power (the drawing of legislative districts) over to an independent commission. There have been other, more extensive debates since Bush v. Gore over the “independent state legislature doctrine” and to what extent federal courts can or must prevent state courts and state executive agencies from overriding the work of state legislatures in this area. One side issue in 2020’s cases — particularly in North Carolina — was whether state executive agencies such as the Cooper-appointed North Carolina Board of Elections could properly cite state law as a basis for exercising de facto legislative powers that undermined the state’s election laws passed by the legislature.
Berger does not resolve that issue, because it does not deal with a constitutional provision that applies explicitly to the powers of a state’s “Legislature.” But it does lay out the general background presumption that federal courts should not, in the ordinary case, second-guess how state law allocates powers within the states — and looking ahead to elections-clause cases may well be another factor that motivated Kagan and Breyer to join Gorsuch’s opinion on this point:
Within wide constitutional bounds, States are free to structure themselves as they wish. Often, they choose to conduct their affairs through a variety of branches, agencies, and elected and appointed officials. . . .
No one questions that States may organize themselves in a variety of ways. After all, the separation of government powers has long been recognized as vital to the preservation of liberty, and it is through the power to structure its government, and the character of those who exercise government authority, that a State defines itself as a sovereign. . . . Nor does anyone question that, when a State chooses to allocate authority among different officials who do not answer to one another, different interests and perspectives, all important to the administration of state government, may emerge. . . .
Appropriate respect for these realities suggests that federal courts should rarely question that a State’s interests will be practically impaired or impeded if its duly authorized representatives are excluded from participating in federal litigation challenging state law. To hold otherwise would not only evince disrespect for a State’s chosen means of diffusing its sovereign powers among various branches and officials. It would not only risk turning a deaf federal ear to voices the State has deemed crucial to understanding the full range of its interests. It would encourage plaintiffs to make strategic choices to control which state agents they will face across the aisle in federal court. It would tempt litigants to select as their defendants those individual officials they consider most sympathetic to their cause or most inclined to settle favorably and quickly. All of which would risk a hobbled litigation rather than a full and fair adversarial testing of the State’s interests and arguments. . . .
Through the General Assembly, the people of North Carolina have authorized the leaders of their legislature to defend duly enacted state statutes against constitutional challenge. Ordinarily, a federal court must respect that kind of sovereign choice, not assemble presumptions against it.
Whether the Court sings a different tune when asked to define specifically who is a “Legislature” as contemplated by the elections clauses will await another day.