In defeat for Berger and Moore, federal lawsuit on N.C. voter ID law will proceed without their intervention

In a defeat for North Carolina House Speaker Tim Moore and Senate President Pro Tem Phil Berger, the U.S. Fourth Circuit Court of Appeals ruled Monday against the lawmakers’ effort to intervene in a lawsuit testing North Carolina’s 2018 Voter ID law. Most Court of Appeals cases are handled by three-judge panels, but in this case, the court acted en banc with all 15 judges participating after a rehearing. The vote was 9-6.

The suit, filed by NC NAACP, challenged the constitutionality of the Republican-backed voter ID law (SB 824) enacted by legislators in the last month of lame duck period of the Republican supermajority in December 2018, following an override of Gov. Roy Cooper’s veto.

The law requires most voters to produce an unexpired photo ID when casting their ballot or cast a provisional ballot instead.

The plaintiffs argued that the law would have a disparate impact on communities of color, and would amount to “effective denial of the franchise and dilution of minority voting strength”– a violation of the Voting Rights Act. In response, Moore and Berger asked the court for permission to litigate on the state’s behalf, noting Attorney General Josh Stein’s opposition to the law.

In 2019, U.S. District Court Judge Loretta Biggs denied two consecutive requests by state House and Senate leaders to directly intervene in the case. She concluded that Moore and Berger failed to show that the Attorney General’s office has demonstrated a “strong showing of inadequacy.” In the ruling, Biggs cited unnecessary delays that could be caused by the intervention. She did allow Moore and Berger to file amicus briefs expressing their views on the law. Biggs also granted the plaintiff’s motion to enjoin the law from being enacted.

In August 2020, however, a three-judge Fourth Circuit panel found that Biggs erred in denying the legislative leaders’ petition to intervene and in December, another three-judge panel also vacated her ruling that blocked the enforcement of the voter ID law, saying that voting rights groups are not likely going to succeed in showing the law’s discriminatory intent in the claim regarding the merits of the law. The judges also highlighted the bipartisanship and voter support of the bill.

The Monday decision only affects the intervention claim and reaffirmed Biggs’ ruling. Writing for the majority, Judge Pamela Harris stated that Berger and Moore “have a right to intervene under Rule 24(a)(2) of the Federal Rules of Civil Procedure only if a federal court first finds that the Attorney General is inadequately representing that same interest, in dereliction of his statutory duties – a finding that would be ‘extraordinary.’ After reviewing the district court’s careful evaluation of the Attorney General’s litigation conduct, we are convinced that the court did not abuse its discretion in declining to make that extraordinary finding here.”

In a dissenting opinion joined by four other judges, Judge Marvin Quattlebaum wrote: “With no intent to disparage the Attorney General, I see no reason he is either the “most natural” agent to defend S.B. 824 — a law that he has publicly opposed— or is more familiar with the matters of public concern that led to its passage in the first place as opposed to the Leaders.”

The trial on the merits was delayed pending on the procedural decision on intervention. A separate lawsuit challenging the law was heard by a three-judge panel in state court in April. A judgment has not been issued.