Attorney General Brnovich Leads 23 States in Supporting Defense of State Laws by Attorneys General at SCOTUS

WASHINGTON, D.C. – Attorney General Mark Brnovich announced today that Arizona led a 23-state merits brief before the Supreme Court of the United States (SCOTUS) urging the Court to reverse a troubling decision by the Sixth Circuit Court of Appeals that usurps the democratic process by empowering officials to strategically surrender in lawsuits challenging state laws they don't politically agree with. 

General Brnovich and the coalition are asking SCOTUS to consider whether a state attorney general should be allowed to intervene to defend a state law, after a federal court of appeals invalidates it and no other state official will defend it. Absent correction from SCOTUS, the coalition argues single officials will be empowered to circumvent the democratic process and repeal laws they disagree with.

"Our office has stepped in several times over the last year to defend state and federal laws and rules when the named parties refused to," said Attorney General Mark Brnovich. "I am proud to lead this coalition of 23 attorneys general who will uphold the rule of law regardless of political pressure."

The attorneys general have an interest in fully defending the constitutionality of their state laws in our dual-sovereign system of government, and the decision by the Sixth Circuit violates fundamental principles of federalism and democracy. The problem of strategic capitulation in litigation is not reserved to Kentucky. For example, the Arizona Attorney General’s Office (AGO) had to intervene in several important election cases in 2020 after other election officials declined to defend challenged election laws.

One such prominent Arizona case is Brnovich v. DNC, which was argued at SCOTUS in March earlier this year. As Arizona’s SCOTUS brief notes, “The fact that the Court has granted certiorari in Brnovich only underscores that even if one state official does not wish to pursue an appeal to conclusion, the issues may still be meritorious and the State retains its legitimate sovereign interest in defending its laws.”
 
In their 2-1 decision last year, the Sixth Circuit prevented the Kentucky Attorney General from intervening to defend a 2018 Kentucky law after the state official named in the lawsuit declined to continue through the appellate process. As Judge Bush observed in his dissent, this “is a plaintiff’s dream case: what if every litigant who successfully challenged the constitutionality of a state law could bar the state attorney general from seeking complete appellate review?”

The Kentucky Attorney General and the 23-state coalition led by Arizona are asking SCOTUS to consider whether a state attorney general should be allowed to intervene to defend a state law, after a federal court of appeals invalidates it and no other state official will defend it.
 
Attorney General Brnovich was joined in the brief by Attorneys General representing the following states: Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.
 
The case will be scheduled for oral argument sometime in the fall.
 
A copy of the brief is available here.