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Flags fly in front of North Carolina’s Legislative Building on Raleigh’s Bicentennial Plaza.

Supreme Court: Legislatures May Intervene to Defend State Laws in Court

By Susan Frederick | June 23, 2022 | State Legislatures News | Print

The U.S. Supreme Court ruled 8-1 on Thursday that North Carolina’s legislative leaders could intervene in federal lawsuit to defend the constitutionality of the state’s voter ID law, even though they were not named as defendants.

The court decided the lawmakers had met the requirements of Federal Rules of Civil Procedure 24(a)(2), which allows anyone to intervene in a lawsuit on a timely motion where the interest claimed relates to the subject of the action and would be impaired if the intervenors were excluded from the lawsuit, and where the existing parties do not adequately represent those interests.

The court did not rule on whether North Carolina’s voter ID law was constitutional, only on whether the legislative leaders could join the lawsuit.

In 2018, North Carolina amended its constitution to require voters who vote in person to present photo identification at the polls. The General Assembly then passed implementing legislation, SB 824, which the governor vetoed. The legislature overrode the veto, putting the law into effect. The NAACP challenged the law and sued the governor and members of the state Board of Elections.

The 4th Circuit Court of Appeals rejected the legislators’ attempts to intervene, ruling that the state was already represented by the governor and the Board of Elections, and that those officials were “presumed” to adequately represent the state in this case. The Supreme Court disagreed.

Justice Neal Gorsuch, writing for the majority, noted that while a state may defend its laws with a “single voice, often through an attorney general … not every state has structured itself this way. Some have chosen to authorize multiple officials to defend their practical interests.”

The court based its holding on several factors. First, North Carolina statute (N.C. Gen. Stat. Ann. §1–72.2) permits the leaders of its two legislative chambers to participate in litigation under certain circumstances. Second, the court opined that leaders in different branches of state government might see the state’s interests differently, and that “important public perspectives would be lost without a mechanism allowing multiple officials to respond.”

The court, giving great deference to state legislative prerogatives, stated, “permitting the participation of lawfully authorized state agents promotes informed federal-court decision-making and avoids the risk of setting aside duly enacted state law based on an incomplete understanding of relevant state interests.”

Susan Frederick is senior federal affairs counsel in NCSL’s State-Federal Relations Program.

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