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By Will Doran August 16, 2016

Is NC Attorney General Roy Cooper really 'costing taxpayers money' on the state's voter ID case?

Attorney General Roy Cooper, the Democratic challenger in the North Carolina governor’s race this fall, has been repeatedly accused by Republicans of politicizing the office by not defending laws unpopular with his Democratic base.

The latest flap is over North Carolina’s voter ID law, which was overturned July 29 by a federal appeals court. Cooper represented the state through the trial and appellate court levels. But after the unanimous and strongly worded ruling against the state from the federal 4th Circuit Court of Appeals, Cooper said he wouldn’t pursue another appeal.

"I think this is what we’re going to have," he said, according to The News & Observer.

Gov. Pat McCrory, the Republican incumbent whose seat Cooper is trying to take this November, blasted him for that. McCrory later announced the state would ask the U.S. Supreme Court to reverse the ruling, even without Cooper.

"If any North Carolina citizen decided not to do their job, they would no longer have a paycheck," McCrory said in a press release. "Roy Cooper should not be held to a different standard. Roy Cooper’s refusal to do his job is costing taxpayers money, so his office must reimburse taxpayers immediately."

Cooper makes $127,561 a year, and we’ll let others decide if he should work for free instead. We wanted to look into McCrory’s claim that "Roy Cooper’s refusal to do his job is costing taxpayers money."

That’s a two-part issue: Is he refusing to do his job? And by not having his office represent the state on further appeal, is he costing the state money?

Concerns with Cooper

Republican leaders said they didn’t trust Cooper, since he has said he didn’t personally agree with the voter ID law. So they hired outside lawyers to work alongside Cooper’s employees.

Cooper’s team won the voter ID case at trial – hardly the outcome of someone trying to sabotage it – before losing on appeal.

But McCrory spokesman Ricky Diaz said it was more than just Cooper’s comments that led to the hiring of the private attorneys – it was the fact that Cooper’s political campaign has received contributions from billionaire George Soros.

Soros is a Democratic donor who has funded challenges to voting laws in several states, including North Carolina. Diaz said that’s a conflict of interest that should have led Cooper to step down from office.

"There is precedent for attorneys general in North Carolina to resign while running for higher office when it conflicts with their duties," he said, citing former AG Robert Morgan, who resigned in 1974 to campaign full-time for the U.S. Senate.

Cooper’s campaign disagrees.

"Attorney General Cooper is doing his job by advising the state when they have passed clearly unconstitutional laws that will not be upheld by the courts," said campaign spokeswoman Megan Jacobs.

The job of the attorney general

We’ve already looked into an earlier claim, from N.C. Senate leader Phil Berger, that Cooper was not doing his job by refusing to defend the LGBT law known as House Bill 2, which is being challenged by individuals as well as the federal government.

We rated Berger’s claim Half True. State law says the attorney general shall represent the state in court, and it doesn’t give any exceptions. But legal experts say the attorney general does have valid reasons not to represent the state sometimes.

For instance, they argue, the AG takes an oath to uphold the constitution and thus shouldn’t defend a law he truly believes is unconstitutional.

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The voter ID situation isn’t totally similar to the HB2 situation, though. While Cooper argued from the outset that HB2 was unconstitutional, his office did defend the state’s voter ID law for years.

So can an attorney general start representing his state in court but stop before the matter is finished? Legal experts are split.

Michael Gerhardt, a UNC-Chapel Hill law professor, said he thinks Cooper’s actions on voter ID were acceptable. The question, he said, comes down to whether or not the AG is allowed to change his mind.

"My take is that he can," Gerhardt said.

But Campbell University law professor Gregory Wallace said he believes the AG’s discretion is more limited, and stopping representation partway through a case deserves strong scrutiny.

"Refusing to defend should be rare and exceptional," he said. "When it happens in several cases over a short period of time which all involve highly politicized issues relevant to the AG's campaign for governor, voters reasonably may infer that the AG’s reasons are political, not constitutional."

Cooper has done this before.

He defended North Carolina’s 2012 constitutional amendment banning gay marriage, for two years, until the 4th Circuit Court of Appeals struck down a similar ban in Virginia. Cooper then said he would not continue North Carolina’s case, dubbing it a lost cause. The Supreme Court later proved him right, ruling in favor of gay marriage in 2015.

Losing the state money?

Whether or not Cooper’s actions are within the scope of his power, it’s a separate question whether he’s costing the state more money by not defending the law. That could be the case if the state suddenly had to hire private attorneys to take up its cause.

But the state has been paying private attorneys from the start, even when Cooper was on the case. And it wasn’t just one set of attorneys. McCrory’s office hired one law firm, and the General Assembly hired a different law firm.

In total, according to a recent report by WRAL-TV in Raleigh, the legislature has spent more than $4.8 million in state funds on its outside lawyers. And we don’t know how much extra McCrory has spent for the same case; WRAL said the governor’s office did not respond to its records request.

Noelle Talley, a spokeswoman for the N.C. Department of Justice, said the private lawyers didn’t split up tasks with the state’s lawyers.

"The work was duplicative," she said.

So really, Cooper is saving the state money. If the Supreme Court agrees to hear the case, lawyers from his office will not be traveling on the taxpayer dime to Washington, D.C., and the private attorneys who will argue it were already on the public payroll.

Talley couldn’t say exactly how much taxpayers might save, but the scenario she described includes savings in the hundreds of dollars – small savings, to be sure, but savings nonetheless.

"Travel expenses would likely have included airfare, a hotel room for a couple of nights, and meals for one attorney," she said.

Our ruling

Gov. Pat McCrory said that in the voter ID lawsuit, Attorney General Roy Cooper’s "refusal to do his job is costing taxpayers money."

There is a question whether Cooper has the power to decide not to appeal further. But the issue of money is more clear – his decision is actually saving the state money.

Since McCrory hit on a valid topic of debate with his claim about Cooper’s job duties but missed the mark on his claim about money, we rate this claim Mostly False.

Our Sources

Email interview with Megan Jacobs, Roy Cooper campaign spokeswoman

Email interview with Ricky Diaz, Pat McCrory campaign spokesman

Email interview with Michael Gerhardt, UNC-Chapel Hill law professor

Email interview with Gregory Wallace, Campbell University law professor

4th Circuit Court of Appeals opinion on voter ID, finding "discriminatory intent" in the state law, July 29, 2016

Columbia School of Law, "State Attorneys General and the Client-Attorney Relationship: Establishing the Power to Sue State Officers," 2005

National Association of Attorney General Training and Research Institute (NAAGTRI) updates on court decisions regarding the powers and duties of attorneys general, 2007-present

WRAL-TV report, Aug. 7, 2016, "Legislature's legal bills top $9M in defense of state laws"

Statutory duties of the Attorney General of North Carolina

PolitiFact NC, April 7, 2016, "N.C. Sen. Phil Berger says A.G. Roy Cooper is failing his duties by not defending HB2 lawsuit"

North Carolina state government employee salary database, searchable by name or agency

The News & Observer, July 16, 2016, "Former US Sen. Robert Morgan of Lillington dies"

The News & Observer, Aug. 3, 2016, "NC will defend voter ID without attorney general"

The News & Observer, July 29, 2016, "4th U.S. Circuit judges overturn North Carolina’s voter ID law"

The News & Observer, March 12, 2016, "Slicing, dicing the money in the NC governor campaign"

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Is NC Attorney General Roy Cooper really 'costing taxpayers money' on the state's voter ID case?

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