Why can my state's AG file this amicus brief?
November 9, 2020 1:11 PM   Subscribe

Hopefully this is answerable legally and not chatfilter: why is it legal/ethical for my state's Attorney General to use his time and the color of his authority to file this amicus brief regarding a case in a different state?
posted by ftm to Law & Government (6 answers total)
 
I am an attorney, but I am not your attorney. This is not legal advice.

As a clarifying matter, the amici are the states themselves, not their respective AG's offices. The AG's offices are essentially acting as the states' law firms. But the AGs are elected, and so they want to trumpet their involvement for PR purposes.

The brief itself [pdf] contains the amici's statement of interest, which boils down to:
First, the States have a strong interest in safeguarding the separation of powers among state actors in the regulation of Presidential elections. ... Second, States outside Pennsylvania have a strong interest in preventing the effective invalidation of their own voters’ choices through illegal voting in Pennsylvania.
So that's their theory of why they have an interest in the outcome of the case.

As for why it's legal or ethical for the South Carolina AG to use his time and the color of his authority to be involved, I imagine they would point to South Carolina Code § 1-7-40:
[The Attorney General] shall appear for the State in the Supreme Court and the court of appeals in the trial and argument of all causes, criminal and civil, in which the State is a party or interested, and in these causes in any other court or tribunal when required by the Governor or either branch of the General Assembly.
I assume "Supreme Court" here refers to the Supreme Court of South Carolina and so the second half of § 1-7-40 is probably the relevant part ("any other court...when required by the Governor"). The press release doesn't mention it, but I imagine the governor signed off on the AG's involvement.
posted by jedicus at 1:35 PM on November 9, 2020 [2 favorites]


This is not legal advice.

An individual need not have actual standing (VERY broadly speaking, a concrete interest) to file an amicus brief, only leave of the court, consent of all parties (in some cases), or legal authorization to do so as of right. State AGs have the last one and so can file an amicus brief essentially in any case in the federal court system that takes their fancy. While I suppose it's possible South Carolina law might restrict your AG from this kind of activity, usually state AGs have broad discretion under state law to pursue the perceived legal interests of the state through litigation. State attorney general is a partisan position.

It would be unethical under federal bar rules if the brief were deceptive or if the legal positions advanced were not a plausible extension of existing law. I haven't reviewed the brief--ordinarily I would say that neither were at all likely to be true, but we live in extraordinary times.
posted by praemunire at 1:36 PM on November 9, 2020 [2 favorites]


You wrote "why is it legal/ethical" - well, those two are basically unrelated. It doesn't have to be ethical if it's legal.
posted by showbiz_liz at 1:52 PM on November 9, 2020 [1 favorite]


Looking at it in a nonpartisan sense, judges in SC can choose to rely on or take into account the decisions in other similar jurisdictions. This is particularly the case for decisions on voting and elections since they are less likely to come up in any given state. For example, when the NC supreme court ruled on gerrymandering recently, they cited a number of decisions about redistricting in other states. So, it's not at all unreasonable for an unrelated state to consider itself an interested party, particularly if they have similar legislation on their own books.
posted by plonkee at 2:32 PM on November 9, 2020 [1 favorite]


D’oh! Should have read the actual brief, that’s pretty clear. Thanks jedicus and y’all.
posted by ftm at 3:43 PM on November 9, 2020


> States outside Pennsylvania have a strong interest in preventing the effective invalidation of their own voters’ choices through illegal voting in Pennsylvania.

The fact that this is said doesn't make it true, though.

It is very common for the courts to accept amicus briefs regularly, and then to give them all the consideration they deserve.
posted by yclipse at 8:10 PM on November 9, 2020


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