Press Release

American Legislative Exchange Council files Amicus Brief in Case Determining the Role of Legislatures in State Elections

December 15th, 2021
Bill Ashworth


The American Legislative Exchange Council (“ALEC”), has filed an amicus brief with the Supreme Court in the case of Berger v. North Carolina Conference of the NAACP, asking the court to preserve the traditional Constitutional role and responsibility of state legislatures in crafting the rules for federal elections. ALEC is America’s largest non-partisan, voluntary membership organization of state legislators dedicated to the principles of limited government, free markets, and federalism.

“State legislatures should have the ability to defend the constitutionality of state laws in court,” noted Bartlett Cleland, ALEC Counsel. The ALEC amicus brief argues that state legislatures have a strong interest in ensuring that the laws it debates and enacts are found to be constitutional. As such, state 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.

The case stems from a dispute between members of the legislature and the state attorney general. A recently enacted North Carolina voter-ID law is being challenged on the grounds that it violates the Constitution and the federal Voting Rights Act. Although the state attorney general, a Democrat, is representing the State’s interest in the validity of that law, Republicans Phil Berger, President Pro Tempore of the North Carolina Senate, and Tim Moore, Speaker of the North Carolina House of Representatives, sought to intervene to also represent the interests of the state. The question presented to the court is whether the two North Carolina legislators have a right to intervene in this case to defend a state voter-ID law, based upon North Carolina law and Article 1, Section 4 of the US Constitution which gives state legislatures the power to prescribe the “Times, Places, and Manner” of holding elections. U.S. Const., art. I, § 4. 

In addition, ALEC argues that traditional rules of federalism, particularly when viewed through the lens of the Constitutions’ delegation of election rulemaking to state legislatures, support North Carolina’s decision to divide the authority to defend state election laws from constitutional challenge among both the legislature and the attorney general.

“Unfortunately, we live in a time of divided government—not only at the federal, but state level as well. In the Berger case, the state legislature is simply asking the court to recognize that states have the right to determine who best represents its interests when the constitutionality of a state statute is challenged—particularly in cases where a state law has been enacted through overriding the Governor’s veto and in the face of vocal opposition by the Attorney General,” noted Jonathon Hauenschild, ALEC Counsel.

The case is Berger v. North Carolina State Conference of the NAACP, Docket number: 21-248 and came to the Supreme Court on a writ of certiorari to the United States Court of Appeals for the 4th Circuit. To review the lower court’s opinion, click here. Oral arguments are scheduled for this winter and decision is likely in mid-June of 2022.



The American Legislative Exchange Council is the largest nonpartisan, voluntary membership organization of state legislators in the United States. The Council is governed by state legislators who comprise the Board of Directors and is advised by the Private Enterprise Advisory Council, a group of private, foundation and think tank members. For more information about the American Legislative Exchange Council, please visit: