Raleigh, N.C. — Republican House and Senate leaders are backing a proposal that would require the state Attorney General's Office to defend local acts challenged in court.
The provision is part of a gut-and-amend of Senate Bill 667, now titled Omnibus Elections Changes. It was introduced in House Elections committee early Thursday morning.
The bill reads, "The State shall be a party whenever the validity or constitutionality of a local act of the General Assembly is the subject of an action in any court, and except as provided in G.S. 147-17, shall be represented by the Attorney General."
Local acts are legislative measures that apply directly to local governments in fewer than 15 counties. They are not subject to the governor's approval.
"We’ve had a couple of cases where local bills have been attacked, and no one had standing to defend who cared," Rep. Paul "Skip" Stam, R-Wake, told the committee. "It’s really unusual in court to disallow people who care about something to have any representation, but that’s what happened twice."
The two cases Stam was referring to were federal court challenges to redrawn City Council maps in Greensboro and school board maps in Wake County. In the Greensboro case, the defense table stood empty, while the only defense in the Wake County case was the Wake County Board of Elections, which could not take a position on the constitutionality of the maps.
"This is saying at least the AG will have standing to defend," Stam said. "You don’t get a very good result in an adversarial system when one side is represented and the other side is not."
However, the proposal goes beyond giving the Attorney General's Office standing, noted Rep. Pricey Harrison, D-Guilford.
"It looks like it forces the AG’s Office to defend what he or she might perceive as unconstitutional statute," said Harrison. "I’ve just got some problem with forcing the AG to defend what he or she perceives to be unconstitutional."
"We already have a statute requiring him to defend state laws that are attacked," Stam responded. "Not to get too political, but he has refused."
Back in 2013, lawmakers voted to give the state House speaker and the Senate president pro tem legal standing to defend any state laws against court challenges. While that authority has been used to intervene in cases involving legislative redistricting and the marriage amendment, it was not used in either the Greensboro case or the Wake County case.
In July 2015, after the hearing on the Greensboro maps, map sponsor Sen. Trudy Wade, R-Guilford, criticized Attorney General Roy Cooper for not defending the legislation. At the time, Cooper spokeswoman Samantha Cole said the Attorney General's Office had advised lawmakers that they would need to defend the map themselves because the defendant in that lawsuit was the Guilford County Board of Elections, not the state.
Harrison had prepared an amendment to strike the section but withdrew it after committee chairman Rep. David Lewis, R-Harnett, told the committee that the bill "is essentially a pre-conference bill with the Senate."
The bill passed the committee on a strict party-line vote, 20 to 9. It passed the House Thursday night, 73 to 40, and is now headed back to the Senate for a final vote.
Asked for comment, Attorney General spokeswoman Samantha Cole responded, "Our office will continue its work defending state law when the state is a party, and will work diligently to carry out this responsibility. We are reviewing the provision, and it appears the new law will expand the number of cases assigned to the Attorney General’s Office."
Cole pointed out that the AG's office has defended "a number of" constitutional challenges, including cases against abortion restrictions, vouchers, voter ID, teacher tenure, NCAE dues, Planned Parenthood funding, the Asheville water system, the Charlotte airport, and three redistricting cases.