SCOTUS frees the Goat

(Washington, DC) Unless you were off the grid, camping in New Mexico, you’ve already heard about the US Supreme Court’s stunning 8-1 decision to allow North Carolina’s two most powerful lawmakers, House Speaker Tim Moore and Senate President pro tempore Phil Berger, to defend NC’s voter ID law in the federal courts, but here are the things you won’t hear on NPR and WRAL about this strange case.

That tethered-goat… again??!!

First, instead of suing the lawmakers over this law–as they did in the state’s 2013 voter ID lawsuit–the NAACP only went after the Governor and the NC State Board of Elections.

This is “justice” when Democrats sue Democrats in a court run by a Democrat Judge…

Why? Because they’re all on the same side! In Leftist lawfare,we call it the tethered-goat defense (H/t: Logan Churchwell at PILF) and discussed it more fully on this post.

The idea behing Leftist lawfare is to use the courts as a policy instrument against laws you don’t like. If the governor is on your side, you sue him with the understanding that he will only offer some theatrical opposition by the equally sympathetic Attorney General Josh Stein.

As Gorsuch noted in his opinion, “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” (p. 3).

We at Voter Integrity Project – NC were burned with that trick over the matter of 7,000 missing voters, whom VIP’s Mike Hyers and Carol Wheeldon had forced the state either do a better job at voter-list maintenance or to remove the voters from the rolls. We knew election officials hated Mike and Carol’s great work because of the bad publicity it created over their bloated morbidly obese voter rolls.

“Lucky” for the election officials, the NAACP rode into town and sued. But instead of suing VIP, they sued the State Board of Elections, who offered no credible defense and quickly embraced the unconstitutional Federal District Court ruling to return those 7,000 voters to the rolls and to outlaws voter challenges based on changes in residence.

Had they sued VIP, we could have shown the court exactly how we followed state law and we also would have poked holes in the federal voter-list maintenance laws that actually created that actually created the problem.

Back to today’s ruling, had the NAACP listed Moore and Burger as defendants, the law could have been adequately defended, but that’s not the goal in Leftist lawfare.

Second, the winners…

Our Legislature’s leaders were already peeved at the Leftist lawfare trick and the sorry defense Josh Stein provided in previous lawsuits, so they passed a really good law, allowing their branch of government to have standing in some circumstances. As Gorsuch noted,

State law provides that “[t]he 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,” “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. Ann. § 1–72.2(b)

Winners, Berger and Moore… kinda.

Moore and Berger get the win on this one. Today, we congratulate them for crafting this solution.

Of course, they already had a remedy on the books for an Attorney General who was this ethically challenged.

And who was that AG? It was Josh Stein again! That was when he rolled over at SCOTUS and threw away millions of taxpayer dollars the Legislature had invested in defending our prior voter ID law. Stein abruptly dropped NC’s appeal in order to avoid defending the law he had opposed as a State Senator.

Since defending the state’s law is part of his job description, the Legislature’s remedy already on the books is impeachment… but these are “Republican” politicians and impeachment would have taken courage.

Third, the losers…

The biggest losers in this case was North Carolina’s State Board of Elections. Just as they opposed VIP’s intervention as a defendant in this voter ID law, they also opposed the Legislature’s motion to intervene.

We lacked the bottomless pocketbooks for an appeal, but our Legislature somehow found the money to make the NCSBE lose and lose ugly with s stern critique from Gorsuch.

The Board submits only that, in fact, North Carolina law does not afford the legislative leaders
that authority. Id., at 49–50. But while we are hardly the final arbiters of North Carolina law, the Board’s argument seems more than a little difficult to square with the express statutory language above. One of these provisions is even entitled, “General Assembly Acting on Behalf of the State of North Carolina in Certain Actions.” § 120–32.6(b). It provides that the legislative leaders may defend state laws “as agents of the State.”

Perhaps realizing how weak their case was, the SBE helpfully added a second reason to oppose the Legislature’s involvement in defending their law and Gorsuch saw right through it.

Retreating, the Board argues alternatively that the statutes authorizing the legislative leaders to participate here violate the State Constitution by usurping authority vested in the executive branch. . . . But the Board’s logic is hard to follow given its concession that the legislative leaders may intervene permissively under Rule 24(b), and likely as a matter of right under [federal court rules] if the attorney general ceases to represent the Board.

Nor, for that matter, does the Board identify anything to support its suggestion that the State’s executive
branch holds a constitutional monopoly on representing North Carolina’s practical interests in court. Instead, the parties direct us to a provision stating that the General As
sembly may determine the scope of the attorney general’s powers.

And finally, Gorsuch delivered the kill shot reason the majority was allowing the Legislature to intervene in the NAACP’s tethered-goat lawsuit against Governor Cooper, the NCSBE, and AG Stein.

To hold otherwise would risk allowing a private plaintiff to pick its preferred defendants and potentially silence those whom the State deems essential to a fair understanding of its interests.


Now… could somebody kindly cut loose that goat?