Courts Should Not Use Federal Procedural Rules to Diminish State Laws

This week, the American Legislative Exchange Council informed the U.S. Supreme Court in an amicus brief filed in Berger v. North Carolina State Conference of the NAACP that state legislatures should have the ability to defend the constitutionality of state laws in court. The Supreme Court is currently deciding whether to take the case.

At the heart of the case is the Fourth Circuit’s decision to deny the North Carolina’s legislature’s request to intervene in a case challenging one of the state’s voter integrity laws and the Constitution’s delegation to state legislatures the ability to establish time, manner, and place regulations for elections. The Circuit decided that the state’s Attorney General, for purposes of federal rules, adequately represented it and there was no need for the Legislature to intervene.

North Carolina state law, though, gives the Legislature the first, and final, say on who represents the state when the constitutionality of a law is challenged. Sometimes, this may be the Attorney General. In other cases, such as this one, the Legislature believed it would better represent the interests of the state. Through its decision, the Fourth Circuit elevated federal procedural rules above state laws, rather than allowing state law to govern.

ALEC’s brief educated the Court on a couple issues. First, principles of federalism and dual sovereignty require that State Legislatures be allowed to intervene in federal litigation and defend the constitutionality of their laws. Second, the Fourth Circuit’s decision denying North Carolina’s request to intervene diminishes the state’s authority to defend its powers under the U.S. Constitution.

A state knows the best person to represent its interests in court. Some states have decided to defer to their attorneys general for that representation. Other states, like North Carolina, vest that authority in the Legislature. The Fourth Circuit ignored the clear preference expressed by the Legislature, instead using its own analysis of the federal rules to add additional burdens that a legislature must overcome prior to intervening. That standard, if the Supreme Court fails to take the case, would likely prevent every legislature within the states comprising the Circuit from ever intervening in a case as long as the state’s attorney general claims to represent its interests.

The underlying issue in the case – whether the state’s voter integrity laws pass Constitutional muster – implicates the Constitution’s grant to state legislatures of the authority to regulate the “times, places and manner of holding elections.” As highlighted in the ALEC brief, “The Framers understood that it would be primarily the province of state legislatures to enact election rules with the only check being Congress.” This grant of authority means that state legislatures have “a unique and deep-rooted interest in state election laws,” which the Supreme Court recently recognized when it stated that a state has “a strong and entirely legitimate state interest [in] the prevention of electoral fraud.”

State legislatures have a strong interest ensuring that the laws it debates and enacts are found to be constitutional. These legislatures should be able to determine who should represent the state when laws are challenged. And while federal courts can establish procedural rules, courts’ analysis should not use the rules to trump state law. Instead, state law should be used to help interpret and inform federal procedural rules.