What do you do if you believe that the attorneys tasked with defending a state law or agency sympathize with the plaintiff?
That is not an idle question, but a real problem that the United States Supreme Court has recognized since at least 1850 (Lord v. Veazie):
The objection in the case before us is, not that the proceedings were amicable, but that there is no real conflict of interest between them; that the plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both of the parties to this suit desire it to be.
When one branch of government is tasked with defending the actions of another branch in court, there is at least the possibility that their hearts might not be in that defense, but with the plaintiff. We witnessed just that in the 2020 election when the North Carolina Department of Justice (NCDOJ) convinced the State Board of Elections (SBE) to let Executive Director Karen Brinson Bell negotiate a settlement rather than defend election laws passed by the General Assembly.
In September, board members of the SBE authorized Bell to negotiate a settlement of a lawsuit brought by Democratic attorney Marc Elias. Soon after, two members of the board resigned in protest, saying that they had been misled by SBE staff and NC Department of Justice attorneys about the case. An additional problem is that Bell had already publicly supported many of the positions taken by Elias in the lawsuit to weaken election integrity laws passed by the General Assembly.
The resulting settlement between Bell and Elias was just the kind of agreement between two parties with “no real conflict between them” that the Supreme Court warned us against in Lord v. Veazie (noted above).
A provision of the 2021 state budget made repeating that kind of collusive lawsuit settlement impossible as long as the state legislature is an intervening defendant (it was already impossible if the primary defendant already opposed a settlement).
Bill would let election officials pick their defenders in court
Typically, the state attorney general defends the SBE in lawsuits. State law also allows the SBE to assist county election boards in litigation with the attorney general’s help.
But what if election officials believe that the attorney general and his subordinates are more sympathetic to the policy position of plaintiffs than to them? After all, it was only after a recommendation of NCDOJ attorneys that the SBE board consented to entering settlement negotiations with Marc Elias in 2020. The attorney general heads the NCDOJ.
A provision of the House budget, Section 28.3, would allow the SBE to “retain private counsel to provide legal services, including litigation services, to the State Board or the Executive Director in any action or matter arising in the scope and course of the Board’s or the Director’s official duties.” In addition, the SBE could retain private counsel to “provide legal assistance in execution of its authority to assist county boards of election.” Again, they would only be authorized to regain private counsel to help defend county election officials in the scope of their official duties.
In both cases, the SBE, not the attorney general, would “supervise and manage” private counsel hired under that section.
I believe that the SBE would still use the services of the attorney general and the NCDOJ in most circumstances. While the bill states that the SBE “may use funds available to the Board of Elections” to pay for private counsel, they would have to use funds from their budget unless funding is provided for that purpose. So, absent an indication that the attorney general may be sympathetic to a plaintiff or their cause (such as past public statements), I suspect that election officials would continue to use the attorney general’s services.
That said, the provision would give election officials flexibility in how they defend themselves from lawsuits and give them greater confidence that whoever is defending them in a lawsuit is zealously protecting their interests. That can be a confidence worth paying for.
