NC NAACP State Conference v. Philip BergerNC NAACP State Conference v. Philip Berger
v.
Appellants,
and
Defendants – Appellees.
Appeal from the United States District Court for the Middle District of North Carolina at Greensboro. Loretta C. Biggs, District Judge. (1:18-cv-01034-LCB-LPA)
Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, and RUSHING, Circuit Judges.
Affirmed by published opinion. Judge Harris wrote the majority opinion, in which Chief Judge Gregory and Judges Motz, King, Keenan, Wynn, Diaz, Floyd, and Thacker joined. Judge Wilkinson wrote a dissenting opinion. Judge Niemeyer wrote a dissenting opinion. Judge Quattlebaum wrote a dissenting opinion, in which Judges Niemeyer, Agee, Richardson, and Rushing joined.
ARGUED: Peter A. Patterson, COOPER & KIRK PLLC, Washington, D.C., for Appellants. Stephen K. Wirth, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C.; James Wellner Doggett, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: David H. Thompson, Nicole J. Moss, Haley N. Proctor, Nicole Frazer Reaves, COOPER & KIRK PLLC, Washington, D.C.; Nathan A. Huff, PHELPS DUNBAR LLP, Raleigh, North Carolina, for Appellants. Joshua H. Stein, Attorney General, Olga E. Vysotskaya de Brito, Special Deputy Attorney General, Paul M. Cox, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees Damon Circosta, Stella E. Anderson, David C. Black, Ken Raymond, and Jefferson Carmon III. Irving Joyner, Cary, North Carolina; Penda D. Hair, Washington, D.C., Caitlin A. Swain, FORWARD JUSTICE, Durham, North Carolina; John C. Ulin, Los Angeles, California, James W. Cooper, Jeremy C. Karpatkin, Andrew T. Tutt, Jacob Zionce, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellees North Carolina State Conference of the NAACP, Chapel Hill-Carrboro NAACP, Greensboro NAACP, High Point NAACP, Moore County NAACP, Stokes County Branch of the NAACP, and Winston Salem-Forsyth County NAACP.
In this appeal, we are asked to decide whether the leaders of the North Carolina House and Senate are entitled to intervene, on behalf of the State of North Carolina, in litigation over the constitutionality of the State‘s voter-ID law. What makes this case unusual is that North Carolina‘s Attorney General, appearing for the State Board of Elections, already is representing the State‘s interest in the validity of that law, actively defending its constitutionality in both state and federal court. Nevertheless, the legislative leaders have moved twice before the district court to intervene so that they also can speak for the State, insisting that this case requires not one but two representatives of the State‘s interest. Twice, the district court rejected these requests.
We see no abuse of discretion in that decision. At this point in the proceedings, the legislative leaders may assert only one interest in support of intervention: that of the State of North Carolina in defending its voter-ID law. It follows that they have a right to intervene under
A.
In December 2018, the North Carolina General Assembly passed Senate Bill 824, “An Act to Implement the Constitutional Amendment Requiring Photographic Identification to Vote” (“S.B. 824“). After the House and Senate overrode a veto by North Carolina Governor Roy Asberry Cooper III, S.B. 824 was enacted on December 19, 2018, as North Carolina Session Law 2018-144.
This new voter-ID law requires, subject to some exceptions, that individuals voting either in person or by absentee ballot present one of ten forms of authorized photographic identification. See 2018 N.C. Sess. Laws 144, § 1.2(a). To make that easier, the law charges county boards of elections with providing qualifying ID cards free of charge, and provides a mechanism for those without ID to vote by provisional ballot. See id. §§ 1.1(a), 1.2(a). Along with these voter-ID provisions, S.B. 824 also expands the number of partisan poll observers, as well as the grounds any individual voter can raise to challenge another voter‘s ballot. See id. §§ 3.1(c), 3.3.
On December 20, 2018 – the day after the law‘s enactment – the North Carolina State Conference of the NAACP and several of the state‘s local NAACP branches (collectively, “the NAACP“) filed suit challenging S.B. 824. The complaint named as defendants Governor Cooper and several members of the North Carolina State Board of Elections (collectively, “the State Board“), all in their official capacities. The NAACP alleged that S.B. 824 has a disparate impact on African American and Latino residents of
B.
In this appeal, we consider two successive requests by North Carolina‘s legislative leaders to intervene to defend against the NAACP‘s challenge to S.B. 824. The procedural history is complicated. But it also is necessary to understand the posture of this appeal and the resulting limits on our jurisdiction, so we describe it in some detail.
1.
In January of 2019, Philip E. Berger, the President Pro Tempore of the North Carolina Senate, and Timothy K. Moore, the Speaker of the North Carolina House of Representatives, filed their first intervention motion, seeking to intervene on behalf of the North Carolina General Assembly to defend S.B. 824. The state legislative leaders – whom we refer to as “the Leaders” – claimed entitlement to intervene as of right under
In this first motion, the Leaders purported to speak on behalf of the General Assembly, rather than the State of North Carolina as a whole. That status, the Leaders
Moreover, the Leaders continued, that interest was “not adequately represented” already by the existing defendants – the Governor and the State Board, through the Attorney General – for purposes of
The district court denied the Leaders’ motion on June 3, 2019, finding that the Leaders did not meet the requirements for either mandatory or permissive intervention. See N.C. State Conf. of the NAACP v. Cooper, 332 F.R.D. 161, 171, 173 (M.D.N.C. 2019) (“NAACP I“). The court first rejected the NAACP‘s threshold argument that the Leaders lacked Article III standing. Because the Leaders sought to intervene only as defendants,
The court turned then to intervention as of right, for which a movant must demonstrate: “(1) an interest in the subject matter of the action; (2) that the protection of this interest would be impaired because of the action; and (3) that the applicant‘s interest is not adequately represented by existing parties to the litigation.” Id. (quoting Teague v. Bakker, 931 F.2d 259, 260–61 (4th Cir. 1991)). The Leaders could not satisfy those requirements, the district court concluded, mostly because the existing defendants, through the Attorney General, already were actively defending S.B. 824.
As to the interest prong, the court held that, at least while the Governor and the State Board remained in the case, the Leaders did not have a significantly protectable interest in likewise defending the statute‘s legality. Id. at 168. The court distinguished cases in which state legislators were permitted to intervene in defense of a statute “[w]hen it became apparent that neither the [state] Attorney General nor the named defendants would defend the statute,” id. at 167 (quoting Karcher v. May, 484 U.S. 72, 75 (1987)); here, by contrast, the state defendants, represented by the Attorney General, already were defending against the NAACP‘s challenge to S.B. 824. The court recognized North Carolina‘s “public policy” in favor of intervention by the Leaders to represent the interests of the General Assembly, id. at 166–67 (quoting
As to the adequacy prong, the district court held that because the Attorney General already was defending the lawsuit on behalf of the state defendants, the Leaders would be required to “mount a strong showing of inadequacy” to overcome a “presumption of adequate representation.” Id. at 169 (quoting Stuart v. Huff, 706 F.3d 345, 352 (4th Cir. 2013)). The Leaders could not make that showing, the court concluded. The defendants already had moved to dismiss the NAACP‘s complaint, and there was no record evidence suggesting that the Governor, the State Board, or the Attorney General had abdicated their responsibility to defend the law. See id. at 169–71.
The court also denied the Leaders’ request for permissive intervention under
The district court entered its denial of the Leaders’ motion without prejudice. Id. at 173. Clarifying its disposition, the court indicated that it would entertain a renewed request for intervention “should it become apparent during the litigation” that the state defendants, through the Attorney General, “no longer intend to defend this lawsuit.” Id. Barring any such change in circumstances, however, the Leaders’ participation would be limited to
The Leaders did not appeal the district court‘s order denying their motion to intervene.
2.
Instead, six weeks later, the Leaders filed their second, renewed motion for intervention, again seeking intervention both as of right and by permission. The Leaders acknowledged that the court already had denied those requests. But the court‘s order, the Leaders believed, was “not necessarily its final word on the matter,” given its stated willingness to entertain a new motion if the Attorney General stopped defending the suit. J.A. 477.
Much of the Leaders’ renewed case for intervention repeated arguments the district court already had rejected. But the Leaders also made two new points especially relevant here. First, the Leaders claimed that a recent Supreme Court decision, Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019), had “clarified” the precise nature of the interests they sought to represent in litigation over S.B. 824. J.A. 485. In Bethune-Hill, the Leaders explained, the Supreme Court confirmed that a state may designate the legislature to serve as the state‘s own agent in federal litigation; and in its state statutes, the Leaders continued, North Carolina had done just that, designating them, by virtue of their positions in the legislature, as representatives of the State of North Carolina‘s interest in the validity and enforcement of its laws. The Leaders thus claimed, for the first time, to represent two different interests in defending S.B. 824: the distinct interest of the General
Second, the Leaders contended that the contingency the district court had envisioned in its first order had come to pass, because months of litigation in the district court and parallel state proceedings had made clear that the Attorney General was not vigorously defending S.B. 824. In the federal case, the Leaders argued, the Attorney General, though winning dismissal of the Governor from the case, had argued only for abstention on federalism grounds and failed to develop the factual record through expert reports. And in the state-court case, Holmes v. Moore, No. 18-CVS-15292 (N.C. Super. Ct.) – in which the Leaders, too, were named as defendants – the Attorney General had moved to dismiss too few of the complaint‘s counts and been insufficiently aggressive as to discovery and its opposition to a preliminary injunction. All told, the Leaders concluded, the Attorney General‘s performance showed that he could not be trusted to defend S.B. 824, clearing what they called the “minimal” hurdle of
Two months after this second motion to intervene, but before the district court had ruled on it, the Leaders sought to accelerate the process with a ruling from our court. On the theory that the district court had “de facto denied” their motion by not acting on it, the Leaders filed an interlocutory appeal and petitioned for a writ of mandamus. In October of 2019, we dismissed the appeal for lack of jurisdiction, given the absence of a ruling by the district court, and denied the mandamus petition.
First, however, the district court briefly addressed the Supreme Court‘s Bethune-Hill decision and reaffirmed its view that the Leaders had no protectable interest in defending S.B. 824 so long as the Attorney General was doing so. The court acknowledged that under Bethune-Hill, North Carolina undoubtedly has the “prerogative to ‘designate agents to represent [it] in federal court.‘” Id. at *2 n.3 (quoting Bethune-Hill, 139 S. Ct. at 1951). But the district court found it “far from clear” that North Carolina law in fact had authorized the Leaders to defend the State‘s interests in court alongside the State‘s Attorney General – who was expressly charged with “appear[ing] for the State.” Id. (quoting
As for permissive intervention, the court found its earlier judgment prescient. Since its last order, the court noted, the Leaders had “prematurely” filed a renewed motion to intervene, improperly appealed before any denial had been entered, and unsuccessfully sought the “extraordinary remedy of mandamus.” Id. at *4. This litigation conduct confirmed that the Leaders’ participation as parties would “unnecessarily complicate and delay” the progress of the case, and the court found no basis for reversing its earlier denial of permissive intervention. Id.
3.
Immediately after this second order denying intervention – but five months after the first – the Leaders filed a notice of appeal to this court. On appeal, the NAACP continued to oppose the Leaders’ efforts to intervene. The State Board, through the Attorney General,
In August of 2020, a panel of this court held that the district court abused its discretion in denying the Leaders’ renewed motion for intervention, vacated the district court‘s order, and remanded for reconsideration of the Leaders’ request. N.C. State Conf. of the NAACP v. Berger, 970 F.3d 489 (4th Cir.), reh‘g en banc granted, 825 F. App‘x 122 (4th Cir. 2020) (mem.). Upon petitions for rehearing by the NAACP and the State Board, we vacated the panel opinion and now consider the case en banc.
There is one final turn in the procedural history of this case. In December of 2019 – while the Leaders’ appeal from the district court‘s second order was pending – the district court ruled for the NAACP and preliminarily enjoined S.B. 824‘s enforcement. See N.C. State Conf. of the NAACP v. Cooper, 430 F. Supp. 3d 15, 54 (M.D.N.C. 2019). The State Board, represented by the Attorney General, promptly appealed that decision, and we allowed the Leaders to intervene in that appeal. In December of 2020 – while the question of intervention was under en banc reconsideration – we ruled for the State Board, holding that the district court had abused its discretion in issuing the preliminary injunction. See N.C. State Conf. of the NAACP v. Raymond, 981 F.3d 295, 311 (4th Cir. 2020). A district court trial on the merits, originally scheduled for January 2021, now has been postponed pending the resolution of this separate appeal regarding intervention.
We begin with the scope of our appellate jurisdiction. Given the course of proceedings in the district court, we conclude that we have power to review only those questions resolved in the district court‘s second order denying intervention, as that is the only final order timely appealed to this court.
Subject to certain exceptions not applicable here,
That is just what happened here. The district court denied the Leaders’ first motion to intervene on June 3, 2019. The Leaders did not appeal that order within 30 days of its
The Leaders dispute one and only one step in this straightforward analysis: According to the Leaders, even if orders denying intervention generally are final and appealable, the district court‘s first order was not, as it was entered “without prejudice.” See NAACP I, 332 F.R.D. at 173. As the Leaders understand it, that without-prejudice dismissal expressly left open the possibility of further litigation, indicating that an amendment could cure any defect in their motion. It follows, they argue, that the district court‘s denial of intervention was not a final order under our case law – which means that they had neither the ability nor the obligation to take an immediate appeal.
That argument misreads both our precedent and the district court‘s order. We have dealt extensively with the finality of without-prejudice dismissals of complaints, and we agree with the Leaders that we may analogize to those cases here. But what those cases
Applied to the “specific facts of [this] case,” id. at 610, those factors point decisively to a final and immediately appealable order. The district court “signaled that it was finished” with the merits of the Leaders’ first request for intervention, notwithstanding its styling of the denial as “without prejudice.” As the court itself later explained, the window left open in its initial order was a “narrow” one, available only if the State Board and Attorney General “in fact declined to defend” S.B. 824 in the future. NAACP II, 2019 WL 5840845, at *2. Because that contingency had not yet – and might never – come to pass, the Leaders could not then amend or correct their motion to change the result. The bottom-line effect of the court‘s ruling was clear: The Leaders were not entitled to intervene under then-current circumstances. Under our precedent, that determination was final, and if the Leaders disagreed, then they were required to take a timely appeal.
That conclusion is consistent with the approach other circuits have taken in procedurally similar intervention appeals. The Seventh Circuit, for instance, recently confronted an order much like the one at issue here: a without-prejudice denial of a motion to intervene that expressly invited a renewed request if a “concrete, substantive conflict or
The Leaders rely on a different and earlier Seventh Circuit case, United States v. City of Milwaukee, 144 F.3d 524 (1998), in which the court deemed non-final a district court‘s without-prejudice denial of intervention. But that case, the Seventh Circuit explained in Driftless Area Land Conservancy, was very different: There, the denial rested on a “purely technical error” in the intervention motion – the failure to include a proposed pleading – that could be cured immediately. See 969 F.3d at 746 (discussing Milwaukee, 144 F.3d at 527–30). Cases like this one, by contrast – in which a district court denies intervention on the merits, but “without prejudice” in recognition that circumstances might change – are “not remotely analogous.” Id. What matters for finality is not “the incantation of the words ‘without prejudice,‘” but “that the judge addressed the substantive merits of the intervention motion,” not just a procedural flaw, and “conclusively denied” the motion. Id. at 745 (citation omitted).
And, again, the same rule holds even if – as here – would-be intervenors file a renewed motion to intervene, and then timely appeal the denial of that second motion. Under those circumstances, too, courts will not consider the merits of the initial denial, because that denial was not timely appealed. See EPA v. City of Green Forest, 921 F.2d 1394, 1401 (8th Cir. 1990) (concluding that court lacked jurisdiction over reasoning in
It is true, as the Leaders note, that there are some cases in which courts will review the merits of an initial denial of intervention, even when the putative intervenors have appealed only the denial of a second motion. But in each of those cases, the district court‘s second order denying intervention – the one appealed – itself made a “fresh evaluation” of the original intervention motion, so that the first order‘s reasoning and rulings merged into the second. See Hodgson v. United Mine Workers of Am., 473 F.2d 118, 126–27 (D.C. Cir. 1972) (explaining that district court had exercised discretion to make a “fresh evaluation of the intervention application“); see also, e.g., Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851, 857 n.3 (5th Cir. 1979) (explaining that district court had treated second intervention request as motion for reconsideration). Here, contrary to the Leaders’ argument, there has been no wholesale merger. Instead, the district court expressly declined to reconsider its earlier analysis, evaluating only whether the Attorney General had become an inadequate representative of the Leaders’ purported interest in the defense of S.B. 824.
In sum, our jurisdiction over this appeal is coextensive with the district court‘s narrow focus in its second order denying intervention – the only order on appeal. We thus proceed to consider those issues, and only those issues, decided or “fresh[ly] evaluat[ed],” see Hodgson, 473 F.2d at 127, in that second order. As a result, our emphasis, like the district court‘s, is on the application of
III.
As all parties agree, the intervention issue in this case is governed by federal law, and specifically by
As explained below, we conclude that the district court did not abuse its discretion in determining that the Leaders’ purported interest in defending S.B. 824 on behalf of the State of North Carolina was adequately represented already by the State Board of Elections and Attorney General. That is enough to defeat the Leaders’ claim to mandatory intervention. Accordingly, we need not consider whether the Leaders have satisfied
As further detailed below, we also find no abuse of discretion in the district court’s renewed consideration and denial of the Leaders’ request for permissive intervention. Accordingly, we affirm the judgment of the district court.
A.
Turning to the district court’s application of
That role is further informed by the second key feature of this case: its highly unusual posture. This is not a case like those decided by the Supreme Court and relied on by the Leaders here – Bethune-Hill, 139 S. Ct. 1945, Hollingsworth v. Perry, 570 U.S. 693 (2013), Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), and Karcher v. May, 484 U.S. 72 (1987) – in which a state representative, usually a state attorney general, is not defending state law, or has declined to appeal an adverse ruling. As the Supreme Court’s multiple encounters with this recurring fact pattern attest, such cases may present difficult questions about the standing and right of other entities to intervene to continue a case in the state attorney general’s stead. But at bottom, the issue in those cases is whether any state representative will be permitted to defend a state’s interest in the validity of its laws, once the state’s “default” representative has declined to do so. See Kaul, 942 F.3d at 800.
Here, by contrast, the State of North Carolina’s “default” representative – the Attorney General – has not “dropped out of the case.” Id. The Attorney General is charged, by North Carolina statute, with representing the State’s interest in cases involving challenges to state law. See
As we have explained, the only interest the Leaders may now assert in support of intervention under
The Seventh Circuit recently – only after the district court issued its decisions – became the first federal court of appeals to confront precisely this question, and it explained why, under these circumstances, we must be especially circumspect in reviewing a district court’s denial of mandatory intervention. In Planned Parenthood of Wisconsin, Inc. v. Kaul, just as here, a state legislative entity, relying on a purported authorization in state law, sought to intervene as of right to defend the State’s interest in the constitutionality of one of its statutes. See 942 F.3d at 796. According to the Wisconsin legislature, the State’s Attorney General, though defending the law, was doing so only nominally, failing to
With that as context, we turn to the district court’s application of
B.
In its opinion denying the Leaders’ renewed request for intervention, the district court reviewed the proceedings to date and concluded that the State Board of Elections and Attorney General continued to “actively and adequately” defend S.B. 824 for purposes of
On appeal, the Leaders’ primary challenge is to the legal standards employed by the district court in its
In assessing whether an existing party to this litigation – the State Board, through the Attorney General – adequately represented the State’s interest in the validity of S.B. 824, the district court applied two distinct legal standards. First, as it explained in its initial order, it applied the long-standing presumption of adequate representation that arises when “the party seeking intervention has the same ultimate objective as a party to the suit.” NAACP I, 332 F.R.D. at 168 (quoting Westinghouse, 542 F.2d at 216). Because the Leaders’ ultimate objective – upholding S.B. 824 – was the same as that pursued by the State Board and Attorney General, the court continued, the Westinghouse presumption could be overcome only if the Leaders could “demonstrate adversity of interest, collusion, or nonfeasance.” Id. (quoting Westinghouse, 542 F.2d at 216). And second, the court understood our decision in Stuart to require that the Leaders make an especially “strong showing of inadequacy” to rebut the Westinghouse presumption because their objective was shared with a governmental defendant – the State Board – rather than a private litigant. Id. at 168 (quoting Stuart, 706 F.3d at 352).4
On appeal, the Leaders’ primary argument is that the district court erred in applying both those standards. And it is true that no matter how deferential our review, application
We begin with Westinghouse’s well-established presumption of adequacy, which may be overcome on a showing of adversity of interest, collusion, or malfeasance – but not by mere “disagreement over how to approach the conduct of the litigation” in question. Stuart, 706 F.3d at 353. According to the Leaders, that presumption – which we and virtually all our sister circuits have applied for decades5 – is inconsistent with the Supreme Court’s more generous approach to intervention, and we should take this opportunity to overrule Westinghouse and abandon the presumption. We have rejected that argument before. See Stuart, 706 F.3d at 351–52 (rejecting claim that presumption of adequacy – heightened or otherwise – is inconsistent with Supreme Court precedent). And we continue to disagree.
The Leaders rest their argument on a footnote in Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972), in which the Supreme Court described the burden for
“Nor could it be any other way,” as we explained in Stuart. Id. at 354. Absent a meaningful presumption of adequacy, federal courts would be required under
Nor are we persuaded by the Leaders’ back-up claim: that even if the Westinghouse presumption remains good law, it does not apply in this case because they seek to advance
In an effort to find some daylight between their own ultimate objective and that of the State Board and Attorney General, the Leaders suggest that the Board’s institutional interest in administering elections gives it a distinct goal, not shared by the Leaders: an interest in expediently obtaining clear guidance from the courts as to what law will govern upcoming elections. And it is true that the State Board acknowledged that interest in a filing before the district court. See J.A. 589. But as we have explained, there is nothing unreasonable about the adoption by state defendants of a litigation strategy designed to produce an “expeditious final ruling on the constitutionality” of state law. Stuart, 706 F.3d at 354. And here, the specific request of the State Board to which the Leaders allude – that any temporary relief granted by the court be flexible enough to allow for prompt implementation of the law if the preliminary injunction were later vacated – is consistent, not in conflict, with its ultimate goal of defending the constitutionality of S.B. 824. See NAACP II, 2019 WL 5840845, at *4 (explaining that “while a ‘primary objective’ of the
That brings us to the second of the standards the district court applied, requiring that the Leaders, in seeking to rebut the Westinghouse presumption, “mount a strong showing of inadequacy.” NAACP I, 332 F.R.D. at 169 (quoting Stuart, 706 F.3d at 352). We held in Stuart that “a more exacting showing of inadequacy should be required where the proposed intervenor shares the same objective as a governmental party,” like the State Board here, as opposed to a private litigant. 706 F.3d at 351. Governmental entities are entitled to this heightened presumption of adequacy, we reasoned, in part because they are uniquely well-situated to defend a state statute under attack, given their ability to speak in a representative capacity and their “familiarity with the matters of public concern that lead to the statute’s passage in the first place.” Id. Focusing on that reasoning, the Leaders argue that Stuart does not apply in a case like this one, where the proposed intervenor is not a private party, as in Stuart, but rather another governmental entity, equally well-suited to speak in defense of a state statute.
We agree with the Leaders to this extent: The better reading of Stuart is that it does not by its terms control this case. But “that is not, by itself, a reason to reach another
Although some of Stuart’s reasoning does not translate to this context, one of its main pillars does: A government defendant, given its “basic duty to represent the public interest,” is a presumptively adequate defender of duly enacted statutes. Stuart, 706 F.3d at 351. And when a “governmental official . . . is legally required to represent” the state’s interest – as is the Attorney General here – then it is “reasonable, fair and consistent with the practical inquiry required by
Moreover, as the Seventh Circuit explained in Kaul, in cases like this one, a proposed intervenor’s governmental status makes a heightened presumption of adequacy more appropriate, not less. A private party seeking to intervene can argue that although it seeks the same objective as the state’s representative, the state’s interests – informed, as they must be, by the concerns of the general public – do not perfectly overlap with his or her more individualized interests. See Kaul, 942 F.3d at 801. But the Leaders – like the
Finally, the practical concerns we identified in Stuart about a less exacting standard for inadequacy are not abated simply because a proposed intervenor is governmental and not private. Government intervenors, no less than private ones, run the risk of rendering litigation “unmanageable” in the federal courts. Kaul, 942 F.3d at 802; see Stuart, 706 F.3d at 350 (explaining “profound implications” of intervention on district courts’ trial management). Faced with the prospect of intervention based only on a minimal showing of inadequacy, the original government defendant “could be compelled to modify its litigation strategy” to suit the putative intervenor’s preferences “or else suffer the consequences of a geometrically protracted, costly, and complicated litigation.” Stuart, 706 F.3d at 351.
We do not, of course, question a sovereign state’s authority to designate its preferred legal representative in court proceedings. See Bethune-Hill, 139 S. Ct. at 1951 (citing Hollingsworth, 570 U.S. at 710). If North Carolina’s General Assembly, in its considered judgment, believes that the Attorney General is not adequately representing the State in this or any case, then it of course is free to remove the Attorney General and substitute some other representative, including the Leaders. But what the Leaders are asking for is more than that: The right of a state to designate not one but two representatives – or three, or more, because there is no discernible limiting principle here – in a single federal case,
Accordingly, we take this opportunity to clarify that Stuart’s heightened presumption of adequacy applies when governmental as well as private entities seek to intervene on the side of governmental defendants. The district court therefore did not err when it required the Leaders to make a “strong showing” of inadequacy to rebut the Westinghouse presumption. NAACP I, 332 F.R.D. at 169. We note, however, that this heightened presumption is not critical to the resolution of this case. As we explain below, with or without the overlay of a “strong showing” requirement, the Leaders cannot overcome the standard Westinghouse presumption that the State Board of Elections and Attorney General are adequately pursuing the shared objective of defending S.B. 824’s validity.
2.
At this point in the analysis, we are in the heartland of the deference owed a district court’s judgment under
First, there is no ground to set aside the district court’s finding – and indeed, we do not understand the Leaders to contest this point – that the State Board and Attorney General in fact continue to defend S.B. 824. At the outset of its opinion denying the Leaders’ renewed motion to intervene, the district court determined that the Attorney General, on behalf of the State Board, had taken and continued to take active steps to defend S.B. 824 in court. In this federal action, the court explained, the Attorney General had “consistently denied all substantive allegations of unconstitutionality,” moved to dismiss the case on federalism grounds, and recently filed an “expansive brief” opposing on the merits the plaintiffs’ motion for a preliminary injunction. NAACP II, 2019 WL 5840845, at *3. And in state court, the Attorney General had moved to dismiss five of six counts of the Holmes plaintiffs’ complaint and opposed a preliminary injunction. See id. at *3–4. This was not a case, in other words, in which the Attorney General actually had “abandoned” the defense of S.B. 824 or indicated that he would do so in the future. Id. at *4.
In arguing that the Attorney General nevertheless is an inadequate representative of the State’s interest in S.B. 824 – and that the district court abused its discretion in finding otherwise – the Leaders consistently have advanced two central arguments. First, they object to the way in which the Attorney General has chosen to defend S.B. 824. According
With respect to this federal court litigation, for instance, the Leaders’ renewed motion focused on an alleged lack of vigor in the State Board’s opposition to the NAACP’s preliminary injunction request. In particular, the Leaders argued, the Board did not hire experts to submit reports in opposition to that request, nor move to stay the preliminary injunction once entered. But we confronted very similar objections in Stuart, in which the
And indeed, the course of litigation since the district court’s intervention decision has only confirmed that the Attorney General’s litigation approach was well within the range of acceptable strategy. After the district court issued a preliminary injunction, the State Board promptly and successfully appealed that decision, securing a reversal of the preliminary injunction. See N.C. State Conf. of the NAACP v. Raymond, 981 F.3d 295, 311 (4th Cir. 2020). Although we permitted the Leaders to intervene to make legal arguments in that appeal, our reversal was based on the record the Attorney General created in the district court, without the need for additional fact or expert evidence. See id. at 310–11.
Likewise, the district court was within its discretion in finding no new evidence of nonfeasance or inadequacy in the Attorney General’s then-recent litigation choices in the
In short, after canvassing the recent litigation conduct cited by the Leaders in their renewed motion, the district court determined that the State Board, through the Attorney General, continued to “actively and adequately” defend S.B. 824. See NAACP II, 2019 WL 5840845, at *2. The Leaders’ objections, the court concluded, remained “mere strategic disagreements” about the pursuit of a shared objective, insufficient to rebut the presumption of adequacy. Id. at *3. We owe substantial deference to that judgment, see Stuart, 706 F.3d at 349–50, and see no reason to disturb it here. Indeed, we are inclined to agree with the district court that the Leaders’ new evidence of alleged inadequacy – coming in a case in which the Attorney General successfully moved to dismiss the Governor as a defendant, vigorously opposed a preliminary injunction, and then successfully appealed from the entry of that injunction – reflects no more than routine disagreement about litigation tactics. And if those disagreements were themselves enough to rebut the presumption of adequacy, that “would simply open the door to a complicating host of intervening parties with hardly a corresponding benefit.” Id. at 353.
That leaves the Leaders’ second central argument: the suggestion that the Attorney General is not mounting an even more aggressive defense of S.B. 824 because he, like the Governor, is opposed to voter-ID laws as a matter of public policy. The Leaders point us to past statements by both the Attorney General and the Governor opposing a prior voter-ID law, arguing that it curtailed the right of North Carolina citizens to vote. And after he assumed his current position, the Leaders emphasize, the Attorney General, acting on
That is a startling accusation. The Attorney General has a statutory duty to represent and defend the State and its interests in this litigation. See
In any event, the district court found there was no evidence in the record indicating that the Attorney General‘s policy preferences left him without the proper “level of interest” or “incentive” to robustly litigate on behalf of S.B. 824. NAACP I, 332 F.R.D. at 170. Nor, the court determined, has the Governor‘s control of appointments to the State Board caused the Board to fall short in its defense of that law. See id. at 171. Any suggestion that the Governor might use his appointment power to direct the State Board or Attorney General to slow-walk the State‘s defense of S.B. 824, the court held, was no more than “conclusory speculation,” insufficient on the current record to rebut the presumption of adequate representation. Id. at 170, 171. We see no abuse of discretion in that considered judgment.10
C.
Finally, we turn to the district court‘s reevaluation and reaffirmation, in its second order, of its denial of permissive intervention under
The district court‘s original decision to deny permissive intervention – while allowing amicus participation – rested on its finding that the addition of the Leaders as parties would result in unnecessary complications and delay, jeopardizing the court‘s ability to reach final judgment in a timely manner and likely prejudicing the plaintiffs, who would be required to address “dueling defendants” with multiple litigation strategies all purporting to represent the same state interest. NAACP I, 332 F.R.D. at 172. In its decision reviewing the Leaders’ renewed motion – the decision on appeal – the district court expressly reaffirmed that finding. NAACP II, 2019 WL 5840845, at *4. And indeed, the court found, the Leaders’ litigation conduct in the intervening months – appealing a purported “de facto” denial of their motion before the court had ruled on it, and seeking the extraordinary remedy of mandamus – had only “further convinced” it that intervention would “distract from the pressing issues in this case.” Id.
The Leaders disagree, as is their right, insisting that their presence as parties, rather than amici, would facilitate and not hinder the prompt and equitable resolution of this litigation. But the district court‘s contrary conclusion is a factual judgment, informed by its “on the scene presence” and going directly to its trial management prerogatives, to which we owe the most substantial deference. See Stuart, 706 F.3d at 350 (internal citation omitted). We have no grounds for setting aside the court‘s finding as a “clear abuse of discretion.” McHenry, 677 F.3d at 219. Moreover, that finding is sufficient by itself to justify the denial of permissive intervention under
IV.
For the reasons given above, the judgment of the district court is affirmed.
AFFIRMED
Every attorney general who looks in the mirror sees a governor. Or so it is said. Therein lies a temptation. When a challenge is brought to an unpopular or controversial state law, an attorney general‘s defense of the law may be less than wholehearted. If the plaintiffs in the case are politically influential, the temptation to pull punches becomes even stronger. It casts no aspersions on anyone to note the obvious: North Carolina‘s voter photo ID law is a very controversial statute. See
The attorney general‘s office exists at the crossroads of law and politics. Electoral ambitions frequently collide with an AG‘s obligations both to his client and to the court. But this fact alone does not allow courts to be cynical. Perhaps I am naïve in not taking a darker view of human nature, but I believe that when a state statute is under challenge, an AG‘s professional and ethical obligations—and certainly those of the Department of Justice which he leads—will most often prevail over the political itch. The AG, after all, is the state‘s chief legal officer, and that should mean a lot.
How to disentangle the legal from the political? Trial courts are best equipped to do so. The district court is best situated to assess the “adequacy” of an existing party‘s representation of a proposed intervenor‘s interest. See
I find much to commend in Judge Harris‘s opinion, which underscores these points well. And here we face the added fact that the Attorney General has both taken an appeal from the preliminary injunction entered against the state statute and prevailed before this court in having the statute upheld. See NC State Conf. of the NAACP v. Raymond, 981 F.3d 295 (4th Cir. 2020).
So why then allow intervention? And here Judge Quattlebaum has ably presented the argument. This case may present just that narrow set of circumstances in which intervention should be permitted. For one, the prospective intervenor is not a private party as in Stuart v. Huff, 706 F.3d 345 (4th Cir. 2013), but a coordinate branch of state government. State law envisions a role for the General Assembly when a state statute is
While it is by no means clear that state law can mandate that federal courts allow a single state to speak with dual voices in federal proceedings, it is altogether clear that federal law itself has an especially important role to play in election law cases. No less an authority than our Constitution leaves the legislatures of the states the power to “prescribe[]” the “Times, Places and Manner of holding Elections.”
While I compliment Judge Harris’ craftsmanship in discussing Federal Rule of Civil Procedure 24, I concur in Judge Quattlebaum‘s fine opinion and request that he show me as joining it. I write separately only to emphasize that the issue is, I believe, more than a procedural one under
While intervention under
The plaintiffs in this case seek a declaration that a North Carolina election law is invalid, and they named as defendants the Governor and the North Carolina State Board of Elections. Yet, state law anticipates that the State will be sued when the validity or constitutionality of an act of the General Assembly is challenged. See
To be sure, the procedural principles of
Here, the State of North Carolina, as sovereign, did designate the General Assembly to represent its interests. And if we give its choice effect, then the analysis conducted by the majority in concluding that the General Assembly may not be allowed to intervene
North Carolina recognized a potential problem. It anticipated that there could be times when its executive branch would not vigorously enforce the state‘s duly-enacted legislation. To address that concern, North Carolina passed a law that requests the North Carolina General Assembly be permitted, alongside the executive branch, to defend any federal action challenging a North Carolina statute.
More specifically, North Carolina enacted
Subsequently, North Carolina passed its current voter identification bill. In response, the state chapter of the NAACP and several county branches (collectively the “NAACP”) sued North Carolina‘s Governor—who, like the NAACP, opposed the bill—and the members of the State Board of Elections that the Governor appointed, claiming the law was unconstitutional.
North Carolina‘s Attorney General, who also publicly opposed the law, was tasked with defending it on behalf of the Governor and the State Board of Elections. The authority for the Attorney General to defend the law was grounded in North Carolina law.
However, North Carolina‘s Speaker of the House of Representatives and President Pro Tempore of the Senate (the “Leaders”) believed that the NAACP‘s challenge to the voter identification law involved the exact situation contemplated by
For good reason, district courts are afforded discretion in resolving motions to intervene. Appellate courts should generally avoid micromanaging district courts in such matters. But this is not your run of the mill intervention case. Here, the district court excluded from its analysis the express policy of North Carolina as reflected in its democratically-enacted statutes. Although federal courts need not completely defer to that public policy decision, the district court cannot fail to give the State‘s choice any weight.
The district court also applied the incorrect legal standard, extending the heightened burden of a “strong showing” of inadequacy to circumstances where, until today, it did not apply. For both of these reasons, I would vacate the district court‘s order denying intervention and remand so that the district court can consider the requested intervention, evaluating all relevant factors, under the proper legal standard.
I.
In 2018, the North Carolina General Assembly ratified Senate Bill 824, titled “An Act to Implement the Constitutional Amendment Requiring Photographic Identification to Vote” (“S.B. 824”), which established, among other things, photographic voter
The Senate and House voted to override the veto. Thus, S.B. 824 was enacted as
Relevant here, in challenging S.B. 824, the NAACP sued the Governor—who publicly and aggressively opposed the bill—and the State Board of Elections—which is made up of members appointed by the Governor. As a result, the parties defending S.B.
In January 2019, the Leaders moved under
Six weeks later, in July, the Leaders filed a renewed motion to intervene, arguing that it was apparent that the State Defendants would not fully defend S.B. 824. In November, the district court denied the renewed motion. The court concluded that its previous Rule 24 analysis, as set forth in its initial order, remained “the law of this case,” focusing on whether the Leaders presented newly available evidence demonstrating that the State Defendants declined to defend this lawsuit. J.A. 3239, 3241. It then evaluated the Leaders’ new allegations, determining they did not involve any new evidence. The district court thus denied the renewed motion to intervene, this time with prejudice, and reiterated that the Leaders could participate in the action by filing amicus curiae briefs.
On November 11, 2019, the Leaders filed a notice of appeal from the order denying their renewed motion to intervene.
We review the denial of a motion to intervene for abuse of discretion. In re Sierra Club, 945 F.2d 776, 779 (4th Cir. 1991). But while our review is deferential, we still must ensure that the district court included the relevant factors in its intervention analysis. See Hill v. W. Elec. Co. Inc., 672 F.2d 381, 387 (4th Cir. 1982) (“[W]e think the court failed to consider or gave insufficient weight to another factor possibly militating in favor of intervention.”). Another of our responsibilities is to ensure that intervention decisions are not based on incorrect legal principles. See Stuart v. Huff, 706 F.3d 345, 349–50 (4th Cir. 2013); see also Feller v. Brock, 802 F.2d 722, 729–30 (4th Cir. 1986) (finding that denial of intervention as of right to apple pickers was reversible error and admitting intervenors as parties-defendant); Hill, 672 F.2d at 385–86, 392 (remanding action for proper consideration of the motion for permissive intervention because the district court did not properly apply legal standards). Here, the district court erred in both respects. It first ignored North Carolina‘s law requesting two agents in cases challenging the constitutionality of its duly-enacted statutes. And then it compounded the error by setting the bar for the Intervenors to clear too high.
III.
A party seeking to intervene must have “an interest relating to the property or transaction that is the subject of the action . . . .”
Rather than look to the North Carolina law, the district court relied on cases finding that individual legislators lack a sufficient protectable interest to intervene in litigation over statutes for which they voted. As a general principle, I agree. But that is not what we have here. The Leaders rely not only on their general position as legislators, but also on
Additionally, the Majority‘s view of our jurisdiction has a decided impact on what part of its opinion constitutes binding precedent going forward. The Majority‘s decision concerning jurisdiction effectively resolves the first two requirements against the Leaders. Consequently, while its jurisdictional analysis is binding precedent of this Circuit, the Majority‘s subsequent discussion of the adequacy issue, properly construed, is dicta and not binding in future cases. See Pittston Co. v. United States, 199 F.3d 694, 703 (4th Cir. 1999) (“Dictum is [a] “statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding—that, being peripheral, may not have received the full and careful consideration of the court that uttered it.“” (quoting United States v. Crawley, 837 F.2d 291, 292 (7th Cir. 1988))).
Importantly, this statute does not limit the role of the General Assembly to instances in which the executive branch declines to defend or participate in the action. Of course, as the district court noted in its initial order,
In Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019), the Supreme Court addressed whether the Virginia House of Delegates and its Speaker had, as intervenors, standing to appeal to defend Virginia‘s redistricting plan after the Commonwealth of Virginia announced it would not file an appeal to the Supreme Court. Bethune-Hill, 139 S. Ct. at 1950. The Commonwealth moved to dismiss the House‘s appeal for lack of standing. The Supreme Court granted that motion and dismissed the appeal. The Court held that the “House, as a single chamber of a bicameral legislature, has no standing to appeal the invalidation of the redistricting plan separately from the State of which it is a part.” Id. But while holding that the House lacked standing there, Bethune-Hill also emphasized “a State has standing to defend the constitutionality of its statute.” Id. at 1951 (citation omitted). “[A] State must be able to designate agents to represent it in federal court,” and “if the State had designated [a legislative branch] to represent its interests . . . the [legislative branch] could stand in for the State.” Id. (citation omitted). That choice, the Court explained, “belongs to Virginia.” Id. at 1952. While in that case, Virginia had chosen to speak only with “a single voice,” that of the executive, nothing in the opinion suggested it could not have dual agents. Id. Indeed, the main point from Bethune-Hill is that states have great deference in deciding who represents their interests. Id. at 1952.
And here the Leaders represent the entire bicameral legislative branch in North Carolina, making this matter comparable to Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S.Ct. 2652 (2015). In that case, the Court recognized the Arizona legislature‘s standing to challenge a ballot initiative threatening its authority over redistricting. See also Arizonans for Official English v. Arizona, 520 U.S. 43, 65 (1997) (“We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State‘s interests.“).
As the Majority points out, in Bethune-Hill, Hollingsworth and Arizonans for Official English, the state representative was no longer defending the state or declined to appeal an adverse ruling. That distinction, to the Majority, means those decisions have little
Finally, in determining that the Leaders lacked a sufficient interest in the S.B. 824 litigation, the district court also found the Leaders’ reliance on the Supreme Court case Karcher v. May, 484 U.S. 72 (1987), misplaced. The district court reasoned that the issue before the Supreme Court there was whether public officials, who participated as intervenors in their official capacities, could continue to appeal an adverse judgment after leaving office—an issue that the district court indicated is not present here. Respectfully, the district court reads Karcher too narrowly. Karcher also confirmed that “[t]he authority to pursue the lawsuit on behalf of the legislature belongs to those who succeeded [the legislators] in office.” Id. at 77. Although the issues presented here may not be identical to those presented there, Karcher reiterates the role that active legislators play in defending a lawsuit depends on a particular state‘s law, which is an issue relevant to the interests asserted by the Leaders.
And this is the case even if you follow the Majority‘s view that we may only review the second order. When the district court issued its initial order, it lacked the benefit of Bethune-Hill. But its second order addresses Bethune-Hill, even if only in a footnote, stating, without analysis, that Bethune-Hill does not “change the calculus.” J.A. 3241. The second order also cites
2.
Having found no protectable interest, the district court predictably found the Leaders failed to satisfy
3.
Finally, I turn to adequate representation—the third requirement for intervention as of right. On this issue, the Leaders complain the State Defendants have consistently failed to adequately defend North Carolina‘s voter identification legislation. They argue that the State Defendants’ efforts have been less than rigorous in Holmes, the parallel state court case, which, according to Leaders, is consistent with the State Defendants’ withdrawal of a viable petition for certiorari to the Supreme Court in litigation over North Carolina‘s prior voter identification law. Further, the Leaders argue the State Defendants have continued
The district court, as noted above, determined that the Leaders had not made a sufficient showing of inadequacy. While we afford district courts discretion in resolving motions to intervene, a court necessarily abuses its discretion when it applies the wrong legal standard to evaluate adequacy and when it excludes pertinent factors from consideration. Here, the district court did both.
a.
Beginning with the legal standard for adequacy, the district court initially acknowledged that a would-be intervenor generally bears a minimal burden of showing inadequacy of representation by an existing party. See Trbovich v. United Mine Workers, 404 U.S. 528 (1972). But it also applied a presumption of adequacy from our Commonwealth of Virginia v. Westinghouse Electric Corporation, 542 F.2d 214, 216 (4th Cir. 1976) decision that arises when a party seeking intervention has the same ultimate objective as a party to the suit. Under that presumption, the proposed intervenor must establish one of three factors—adversity of interest, collusion or nonfeasance—to
The district court then concluded its adequacy analysis by holding “[the Leaders] have failed to sustain their burden of demonstrating the requisite ‘strong showing of inadequacy’ to overcome the presumption of adequate representation by State Defendants and their counsel, the Attorney General.” J.A. 386 (emphasis added). In using the phrase “strong showing of inadequacy,” the district court added a heightened burden to overcome the Westinghouse presumption. In imposing that heightened burden, it cited our decision in Stuart v. Huff, 706 F.3d 345 (4th Cir. 2013), which requires intervenors to “mount a strong showing of inadequacy” where defendants are represented by a government agency. Stuart, 706 F.3d at 352.
I disagree that the Leaders needed to overcome that presumption by the heightened standard of a “strong showing.” See Trbovich, 404 U.S. at 538 n.10. That heightened standard from Stuart does not, and should not, apply here.
In Stuart, abortion-services providers sued state officials over a North Carolina statute restricting abortions. 706 F.3d at 347. A group of pro-life medical professionals and others sought to intervene claiming the state defendants would not adequately protect their interests. Thus, we addressed whether “to permit private persons and entities to intervene in the government‘s defense of a statute . . . .” Id. at 351 (emphasis added). We held that, in such a situation, “the putative intervenor must mount a strong showing of inadequacy” in the context of those private persons and entities on the basis of government entities’ duty to represent the people in public litigation matters. Id. at 352.
Second, we noted that “to permit private persons and entities to intervene in the government‘s defense of a statute upon only a nominal showing would greatly complicate the government‘s job.” Id. That makes sense. Allowing private citizens party status in a state‘s defense of its laws raises a host of concerns ably identified in Stuart. But this, of course, is not a case where a member of the public is seeking to intervene in the
Stuart was, and remains, an important decision. Nothing I say here is intended to suggest otherwise or to in any way carve back its application. But the “strong showing” standard it imposed was for situations in which private litigants seek to intervene in the government‘s defense. The reasons set forth in Stuart for requiring a “strong showing” of inadequacy simply are not present here. Thus, Stuart does not govern and should not be expanded. That does not mean the Leaders’ motion should be granted. It just means it should not be saddled with the heightened burden of making a “strong showing.”
The Majority, in concluding that Stuart should be extended, relies in part on the Seventh Circuit‘s decision in Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793 (7th Cir. 2019). And Kaul does, in fact, impose a heightened burden—one requiring a proposed intervenor to establish gross negligence or bad faith—to overcome the presumption of adequacy that circuit applied when a state attorney general was defending the constitutionality of a law. Kaul, 942 F.3d at 801. In fact, the burden it imposes is more onerous than that required under Stuart. But with respect to the Majority and our sister circuit, I find the burden Kaul applied is too far removed from the text of
Further, I find the reasoning of Kaul puzzling. There, the Seventh Circuit left no doubt that it would defer to the Legislature if it were to designate one agent to represent the state regardless of which entity it was. In fact, the Seventh Circuit said it could “see no reason why a federal court would bat an eye if a state required its attorney general to withdraw from his representation and allow another entity, including a legislature, to take over a case.” Kaul, 942 F.3d at 802. It would not, however, defer to a statute that called for the Legislature to litigate alongside the Attorney General. But in Bethune-Hill, Hollingsworth, Arizona State Legislature and Karcher, the Supreme Court has made clear that states should be able to select their agents to defend the constitutionality of their laws and here we have statutory language that gives the North Carolina General Assembly final decision-making authority with respect to the defense of a challenged act. See
Kaul also contends a heightened burden is needed to avoid drawing the district courts into an “intractable procedural mess that would result from the extraordinary step of allowing a single entity, even a state, to have two independent parties simultaneously
For all of these reasons, I would not extend Stuart‘s heightened burden of a strong showing of inadequacy to the situation presented here.
b.
But if the Leaders need not satisfy the heightened standard of a strong showing, what is the proper standard? To answer that question, I return to Westinghouse. There, we indicated the standard for establishing inadequacy generally was the minimal burden set forth by the Supreme Court in Trbovich. Westinghouse, 542 F.2d at 216. As already noted, we then held that if the proposed intervenor seeks the same ultimate relief as an existing party, the proposed intervenor must show either adversity of interest, collusion or malfeasance. Id. But while our Westinghouse decision concludes that a proposed intervenor seeking the same ultimate relief as an existing party must show one of those three factors, it does not hold or even suggest any change from the minimal burden of establishing those
c.
Having described the proper standard for evaluating adequacy, I turn to the pertinent factors the district court should consider in applying this standard. Using the standard outlined above, the district court should consider the evidence presented by the parties, as well as
The district court did not consider
B.
Last, the district court also denied the Leaders’ alternative request for permissive intervention. But it erred in doing so without even considering the North Carolina statute requesting that the General Assembly be permitted to intervene.
Permissive intervention contemplates intervention upon timely application “when an applicant‘s claim or defense and the main action have a question of law or fact in common.” See Newport News Shipbuilding & Drydock Co., 646 F.2d at 118 n.1. “If intervention of right is not warranted, a court may still allow an applicant to intervene permissively under
Of note, the district court expressed concern with the potential for delays, which could result from adding the Leaders as parties, and with the additional burdens on the court and potential prejudice to the NAACP. And our appellate review of those concerns is deferential because ”
In denying permissive intervention, the district court failed to even consider
IV.
For the above-stated reasons, I respectfully dissent.
Notes
The Leaders appear to disavow this approach, recognizing the problems it would create. Instead, they assure us that state laws designating legislative agents as additional representatives will not lead necessarily to intervention as of right – precisely because the adequacy prong will remain an independent check. Even where laws like