‘My duty is to the Constitution.’ Why AG Stein won’t defend abortion, election cases

As the state’s top lawyer, the attorney general is typically tasked with defending some of the most controversial laws passed by the General Assembly.

But attorneys general are themselves politicians, elected in statewide races, and they are often faced with the conundrum of defending laws in court that they’ve criticized in public.

This is the case for North Carolina Attorney General Josh Stein, a Democrat who has either recused himself from or refused to defend the state against several high-profile political lawsuits involving abortion, elections, gerrymandering and more.

In an interview with The News & Observer, Stein, who is running for governor, said it’s his duty to defend the laws of the state, even if he doesn’t always agree with them.

“Now, if those laws are unconstitutional, then that’s a different question,” he said. “Because my duty is to the Constitution, not to the General Assembly.”

Stein refuses to defend abortion restrictions

Stein has consistently refused to defend restrictions on abortion.

After the landmark U.S. Supreme Court ruling in 2022 that repealed the federal right to abortion, Republican leaders urged Stein to reinstate the state’s existing 20-week ban.

He denied the request, writing in a statement that the Department of Justice would not “take action that would restrict women’s ability to make their own reproductive health care decisions.”

Senate leader Phil Berger quickly criticized Stein’s decision, saying he “swore an oath to uphold and enforce North Carolina law, and this is the latest example of his refusal to do his job.”

Last year, after Republicans were sued by Planned Parenthood for enacting a new 12-week abortion ban, Stein refused to defend parts of the law in court, writing that it was “riddled with incoherence and uncertainty,” in a filing in June.

But just because the state’s top lawyer refuses to defend a law, that doesn’t mean it’s doomed.

North Carolina’s top Republican lawmakers frequently intervene in lawsuits that challenge laws passed by the legislature.

Shortly after Stein announced he would not defend the abortion ban in court, Berger and House Speaker Tim Moore filed a motion seeking to join the case as defendants.

Stein recuses himself from several election cases

Not defending a law isn’t the same thing as recusing oneself, though.

When the attorney general decides to recuse himself from a case, the Department of Justice defends the state, but a firewall is established between Stein and the DOJ attorneys who are handling the case.

By contrast, when the attorney general declines to defend a law, as Stein did with the new abortion restrictions, “he remains involved in the case as the head of the Department of Justice,” according to Olivia Weidie, Stein’s deputy press secretary.

Stein has recused himself from several cases involving election laws and redistricting.

One of those cases, Pierce v. North Carolina State Board of Elections, alleges that new districts drawn for the state Senate dilute the votes of Black residents in the eastern part of the state.

Last month, Stein joined Gov. Roy Cooper in filing a brief in support of the plaintiffs who brought the lawsuit, asking the judge to block the contested districts quickly so no elections could be held under potentially illegal maps.

“Our state has a shameful legacy of discriminating against Black voters,” Stein said in a press release at the time. “It’s unlawful, and I will never stop fighting to make sure the people’s voting rights are protected.”

Stein has also recused himself from three cases that challenge a controversial new elections law, which was enacted in October after Republicans overrode Cooper’s veto.

He publicly opposed the bill, which makes a variety of changes to elections such as eliminating the three-day grace period for receiving absentee ballots and empowering partisan poll observers.

“The right to vote is the people’s most fundamental freedom in our democracy. It’s how we hold our government accountable,” Stein said in a statement praising Cooper’s veto of the bill. “But far-right politicians in the legislature want to restrict that right by putting up barriers to the ballot box.”

Republican leaders have criticized Stein for not defending laws he disagrees with, but Mitch Kokai, senior analyst with the conservative John Locke Foundation, said Stein has done a good job of being upfront about removing himself from cases involving laws he doesn’t support.

“I think where you would have more of a problem is in a case where the attorney general doesn’t really want to defend the law, is clearly on record as being against it, but then, does not step aside and puts forward some sort of half-hearted defense,” he told The N&O.