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102 N.C. L. Rev. F. 1 (2023)

handle is hein.journals/addendum102 and id is 1 raw text is: 102 N.C. L. REV. F. 1 (2023) Who Speaks for the State? Examining the Consequences of Berger v. North Carolina State Conference of the NAACP* When North Carolinians vote for their attorney general, they select the candidate who can best represent their state in the courtroom. But the U.S. Supreme Court in Berger v. North Carolina State Conference of the NAACP upended this common understanding of the attorney general's job. Instead of trusting the executive branch to execute and defend the state's laws, the Court permitted two state legislators, supported by partisan outside counsel, to represent the entire State of North Carolina in nearly any litigation that could arise. Such a major grant of executive power to the legislature ignores the state constitution's strict separation of powers mandate, which protects each branch from seizure of power by the others. This Article discusses the impacts of the Berger decision. First, taxpayers will bear significant costs as the North Carolina General Assembly pays outside attorneys to litigate for the State rather than using apolitical career staff at the North Carolina Department of Justice. Second, litigation will become increasingly polarized as the General Assembly employs hyper-partisan counsel or uses pro bono support from ideologically extreme nonprofits. Polarization in the state is only furthered by the Court's characterization of the state attorney general as a pure partisan player rather than a legal advocate for all North Carolinians. And finally, this Article examines the Court's growing deference to state legislatures as supposed bastions of democratic values despite evidence that these bodies are the least democratic branch in most states across the country. While Berger specifically applies to North Carolina, its implications extend to all purple states grappling with emboldened legislatures poised to make similar power grabs. INTRO DU CTIO N ....................................................................................... 2 I. BACKGROUND OF BERGER V. NORTH CAROLINA STATE CONFERENCE OF THE NAACP .......................................................4 II. BERGER'S IMPLICATIONS IN NORTH CAROLINA AND BEYOND ..... 8 A. Cost to the State ...........................................................................9 B. Increased Polarization............................................................. 14 1. Reliance on Partisan Outside Counsel .............................. 14 2. The Attorney General as a Partisan Player........................ 16 C . Selective Federalism ................................................................ 18 1. Short Shrift to the State Constitution...............................19 * © 2023 Lizzie Wallace.

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