RALEIGH — Investigate Attorney General Josh Stein, says a former member of the Federal Elections Commission.
“You have an unethical attorney general. I’m going to say that straight out,” said Hans Von Spakovsky, now a lawyer and senior fellow at the Washington, D.C-based Heritage Foundation.
Von Spakovsky wants the North Carolina State Bar to investigate Stein’s part in killing the state’s appeal to the U.S. Supreme Court in a voter ID lawsuit. Von Spakovsky made the comments during a recent presentation at the Conservative Leadership Conference in Raleigh.
If the State Bar fails to act on a “no-question violation of the ethics rule governing lawyers in this state” it’s giving in to politics instead of doing its job policing the legal profession, von Spakovsky said.
At issue is Democrat Stein’s intervention in a U.S. Supreme Court appeal by the General Assembly’s Republican leadership of a lower court’s ruling in North Carolina v. North Carolina State Conference of the NAACP.
A three-judge panel of the 4th U.S. Circuit Court of Appeals had ruled an omnibus election law violated the federal Voting Rights Act. It required voters to present an approved form of photo identification, reduced the early voting period from 17 to 10 days, and eliminated out-of-precinct voting, same-day registration and voting, and pre-registration of 16-year-olds.
Shortly after Stein took office, he joined with newly elected Gov. Roy Cooper to file a pleading with the U.S. Supreme Court to withdraw the appeal, which had been filed by former Gov. Pat McCrory.
The Supreme Court rejected a motion from House Speaker Tim Moore, R-Cleveland, and Senate leader Phil Berger, R-Rockingham, to intervene.
The lawmakers argued Stein didn’t have authority to unilaterally withdraw the appeal because state law designates the General Assembly as a client of the attorney general when constitutionality of legislation is litigated. State law also empowers the General Assembly to hire private attorneys as lead counsel to defend the law, which they did in this case.
“Given the blizzard of filings over who is and who is not authorized to seek review in this court under North Carolina law,” Chief Justice John Roberts wrote, the U.S. Supreme Court chose not to accept the case, but did not rule on its merits.
Von Spakovsky isn’t alone in his condemnation of Stein. “We are surprised that nobody has filed a complaint, and we are certainly weighing our options in that area,” Jay DeLancy, executive director of the Voter Integrity Project NC, told Carolina Journal.
He said von Spakovsky’s comments reinforce those made in an opinion column by J. Christian Adams, president of the Public Interest Legal Foundation and a former attorney with the U.S. Department of Justice Voting Rights Section.
Adams filed a lawsuit for the Voter Integrity Project NC, and won a settlement late last month against the Wake County Board of Elections for the board’s failure to maintain accurate voter rolls, among other issues. DeLancy said he had been considering filing a State Bar grievance against Stein but wanted to concentrate on the Wake case before deciding whether to fight another legal battle.
Stein spokeswoman Laura Brewer called the matter rehashed “nonsense” and “unfounded.”
Katherine Jean, State Bar counsel, said it would be inappropriate to talk about whether alleged conduct of a lawyer violates the Rules of Professional Conduct. If a grievance is filed, the Bar’s Grievance Committee decides. She said the agency doesn’t disclose whether a grievance has been filed or an investigation is under way.
Berger and Moore in a news release have said Stein’s action violated state law because he previously testified “on behalf of left-wing interest groups that opposed the voter ID law while he was contemplating a run for attorney general, and Stein’s father represented the plaintiffs in the voter ID case for years — conflicts of interest that should have prevented the attorney general from representing the state.”
Von Spakovsky said a lawyer who is a witness in a case can’t act as a lawyer representing one of the parties. It’s an explicit rule in the professional code of conduct in every state.
Further, he said, Stein didn’t consult with the client — the state legislature — for permission to withdraw the appeal. “This is not a grey area. This is a black-and-white issue,” von Spakovsky said.
Stein countered that contention in his legal filings, citing a federal case he claimed supports his position. But the court in that case also warned against a lawyer serving dual roles to avoid any potential conflict of interest between attorney and client.
Far from being resolved through the voter ID case, the same legal conflict between the two parties resurfaced last week in court filings by legislative lawyers in the Covington v. North Carolina redistricting lawsuit.
The General Assembly decides who represents it in lawsuits, the lawyers wrote.