Why the North Carolina Berger Voter ID Case Pending in the U.S. Supreme Court Would Benefit from Certification to the State High Court: Part Two in a Series

Posted in: Constitutional Law

In Part One of this series, we discussed the historical and doctrinal background of so-called certification, a practice by which federal courts (especially federal appellate courts) certify questions to state high courts when cases in federal court might turn in whole or in part on unresolved questions of state law. We observed that certification is a voluntary practice, inasmuch as neither federal courts nor Congress (we think—although we haven’t looked carefully at that issue) can require state courts to assist federal courts by answering certified questions. And we also observed that almost all states have adopted at least some mechanism for certification in some instances. One (and perhaps the only) state that seemingly has no provision or allowance for certification is North Carolina. And a pending case at the U.S. Supreme Court suggests why that is a mistake on North Carolina’s part.

In Berger v. North Carolina State Conference of the NAACP, the issue before the Court is whether two leaders of the North Carolina legislature have the right, under Federal Rule of Civil Procedure 24(a), to intervene in a federal lawsuit involving a challenge to North Carolina’s recently enacted voter ID law. The two legislators claim that because of their status as leaders of the legislative branch, a status recognized by state statutes, these legislators must be permitted to intervene to defend the voter ID requirement. The parties in the litigation—the NAACP as plaintiff and the state board of elections (and its members) as defendants represented by the state attorney general—dispute the legislators’ interpretation of the state statutes the legislators invoke as a basis for intervention. Certification to the North Carolina Supreme Court, were it available, could generate a definitive resolution of the important underlying state statutory (and perhaps also state constitutional) law issue bearing on the case. Instead, the Supreme Court is left to muck around in state law as it tries to resolve the intervention claim.

Some background is necessary to appreciate all this. In December 2018, implementing an amendment to the state constitution adopted the month before, the North Carolina General Assembly (the term North Carolina uses for its legislature) enacted (over the veto of Democratic Governor Roy Cooper) a requirement that voters produce a photo ID in order to cast a ballot. The law incorporates a provision allowing would-be voters lacking an approved photo ID to submit an “Impediment Declaration Form” along with an affidavit explaining why they do not have an ID and to cast a provisional ballot; a provisional ballot is counted unless the county election board has reason to believe the affidavit was false. The law also makes available free photo IDs at election offices throughout the state.

Soon after the voter ID law took effect, the North Carolina NAACP sued the State Board of Elections and its members, arguing that the law violates section 2 of the Voting Rights Act because it disproportionately impacts African American and Latino voters, and that it intentionally discriminates on the basis of race in violation of the Fourteenth and Fifteenth Amendments, and unduly burdens the right to vote in violation of the Fourteenth Amendment.

Philip Berger, the President Pro Tempore of the North Carolina Senate, and Timothy Moore, the Speaker of the North Carolina House of Representatives, sought to intervene as parties in the federal lawsuit under FRCP Rule 24(a). That Rule provides (in relevant part) that “the 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.”

Berger and Moore contend that they have a right to intervene because as a matter of state law they hold an interest, on behalf of the state, in upholding state laws and thus they are necessary parties to the lawsuit and indeed should have been named as Defendants from the outset. In asserting their interest, Berger and Moore rely principally on two provisions of North Carolina statutory law:

Whenever the validity or constitutionality of an act of the General Assembly or a provision of the Constitution of North Carolina is the subject of an action in any State or federal court, the Speaker of the House of Representatives and the President Pro Tempore of the Senate, as agents of the State through the General Assembly, shall be necessary parties. . . . In such cases, the General Assembly through the Speaker of the House of Representatives and President Pro Tempore of the Senate jointly shall possess final decision-making authority with respect to the defense of the challenged act of the General Assembly or provision of the North Carolina Constitution. N.C. GEN. STAT. § 120-32.6(b)

The Speaker of the House of Representatives and the President Pro Tempore of the Senate, as agents of the State, by and through counsel of their choice, including private counsel, shall jointly have standing to intervene on behalf of the General Assembly as a party in any judicial proceeding challenging a North Carolina statute or provision of the North Carolina Constitution. N.C. GEN. STAT. § 1-72.2(b)

Berger and Moore read these provisions as making them responsible for the defense of state laws challenged on constitutional grounds. Intervention is particularly warranted, Berger and Moore contend, because their statutorily recognized interest differs from the interests of the Election Board itself in the lawsuit. Although the Board is represented in the litigation by North Carolina’s Attorney General, the Board’s primary interest, Berger and Moore argue, lies in getting a clear determination of which laws must be applied in future elections—that is, in simply having the dispute definitely resolved one way or the other. That interest, Berger and Moore say, involves mere election administration—rather than vigorous defense of the challenged voter ID law on the merits. Berger and Moore thus assert that, consistent with the particular interest the Board cares about, as the litigation has proceeded the Attorney General (a Democrat) has not offered the full defense of the statute that they themselves would mount in light of their singular interest in upholding state laws.

Berger and Moore twice filed motions in the district court to intervene. The district court denied each motion, the second time with prejudice. The court’s basic view was that it is the job of the state attorney general to defend state statutes, the attorney general is in court doing that in the case, and that the two legislators merely have a disagreement with the attorney general over the best litigation strategy. Thus, the district court reasoned, any interest the legislators hold is already adequately represented so that intervention under the very terms of Rule 24(a) is unavailable. On appeal from the district court’s denial of the second motion to intervene, the Fourth Circuit panel reversed but the en banc court then upheld the district court’s decision (largely on the same rationale as the district court). As to the merits of the challenge to the voter ID law, the district court had entered a preliminary injunction blocking the ID requirement from being enforced. That injunction was vacated by the Fourth Circuit. The litigation is now stayed in the district court pending the Supreme Court’s resolution of the legislators’ motion to intervene.

At the Supreme Court, the NAACP (the plaintiff) and the Board of Elections and its members (the defendant) dispute the legislators’ interpretation of the state statutes as conferring upon them an essential interest in defending laws for the state. The Board (represented by the attorney general) does not necessarily oppose intervention by the legislators, but it argues that intervention can be based only on an interest held solely or especially by the General Assembly and not the interest of the state generally (and the Board takes no position on whether such an adequate and distinct interest exists here). According to the Board, the state statutes the legislators rely upon do not permit them to assert the interests of the state as a whole. The Board emphasizes that section 1-72.2(b) (above) refers to legislators having “standing to intervene on behalf of the General Assembly” and that section 120-32.6(b) refers to the legislators as “agents of the State through the General Assembly.” Accordingly, the Board contends, the legislators are simply wrong to read the statutes as conferring any broader interest beyond that of the state legislature itself. Further, the Board argues, if the statutes were read in the way the legislators advocate, the statutes would violate the separation of powers provision of the state constitution because they would be improperly authorizing two members of the General Assembly to exercise executive authority over the post-enactment enforcement of state laws.

The NAACP follows the Board’s reading of the state statutes. (In a nod to the unavailability of certification to the state’s highest court, the NAACP argues that the Supreme Court should not resolve the contested issue of state law in the first instance but instead remand to the lower courts for them to decide it.) It argues also that intervention was properly denied. In its view, the lower courts correctly held that under Rule 24(a) the legislators were required to overcome a presumption of adequate representation and that given the role of the attorney general in the case they failed to do that. The NAACP’s further view is that, as a matter of federal judicial management, states are entitled to just one representative party in federal actions. Permitting multiple parties asserting the interests of a state, the NAACP contends, would create havoc in trial processes.

We are not experts in North Carolina law and so we have no basis to determine whether the state statutes indeed give the two legislators’ the role they assert and, if they do, whether those statutes comport with the state constitution. Neither does the U.S. Supreme Court. On what basis can it decide whether the views of the state attorney general or those of two state legislative leaders reflect the correct interpretation of a state law? Were the laws of any other state involved, getting the views of that state’s supreme court would be a no-brainer. As it is, the parties report that the only available state court ruling is a 2020 decision by a North Carolina trial court (which took an approach consistent with the approach the state AG now offers). That’s no substitute for a definitive construction by a state’s highest court.

North Carolina’s failure to adopt (actually, its choice not to adopt) a statute (bills have been proposed) to provide for certification of uncertain issues of state law creates the problem that took the legislatures’ leaders all the way to the U.S. Supreme Court. The legislators now argue that federal courts should respect a state’s allocation of responsibility to defend challenged state laws. “In an important category of cases,” the legislators write in their brief, North Carolina has designated legislative branch officials as necessary agents to defend the State’s interests. . . . Rather than inventing presumptions that frustrate North Carolina’s policy, the Court should interpret Rule 24 to accommodate the State’s choice of who may act as its agents in litigation.”

We think there is considerable merit to the proposition that states should be able to allocate state governmental functions in various ways without being forced to conform to a federal model. That is, we are not sure we agree with the NAACP that a state could not, if it clearly so chose, decide to have multiple representatives in federal court with their respective powers laid out. But accommodating a state’s choice requires figuring out what that choice is in the first place. State sovereignty isn’t protected if federal courts read state statutes incorrectly.

Indeed, we are hard-pressed to disagree with Chief Justice Roberts’s observation at oral argument that “If the sovereign state that is a party in the case has a law that says these people have to represent us, I don’t know of any federal interest that outweighs that.” But it’s the “if” that presents the question we would want the state supreme court to answer.

Perhaps after this case, the leaders of the General Assembly will take up legislation to provide for certification.  And if they lose because the Court doesn’t want to forge ahead and fashion new state law in this field and instead falls back on the traditional model of singular executive-branch representation embraced by the federal system and that of other states, the North Carolina legislature will have only itself to blame.

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