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North Carolina State Conference of NAACP v. Cooper

United States District Court, M.D. North Carolina

June 3, 2019

ROY ASBERRY COOPER III, in his official capacity as the Governor of North Carolina; ROBERT CORDLE, in his official capacity as Chair of the North Carolina State Board of Elections; STELLA ANDERSON, in her official capacity as Secretary of the North Carolina State Board of Elections; KENNETH RAYMOND, JEFFERSON CARMON III, and DAVID C. BLACK, in their official capacities as members of the North Carolina State Board of Elections, [1] Defendants.



         Plaintiffs initiated this action against the above-named Defendants challenging the constitutionality of specific provisions of Senate Bill 824 (“S.B. 824”), titled “An Act to Implement the Constitutional Amendment Requiring Photographic Identification to Vote.” (See ECF No. 1; ECF No. 8-2 at 2.) S.B. 824 was passed by the North Carolina General Assembly (“General Assembly”) on December 5, 2018, and enacted into law as Session Law 2018-144 on December 19, 2018. (ECF No. 1 ¶¶ 1, 79.) Before the Court is a Motion to Intervene by Hon. Philip E. Berger (“Senator Berger”), in his official capacity as President Pro Tempore of the North Carolina Senate, and Hon. Timothy K. Moore (“Representative Moore”), in his official capacity as Speaker of the North Carolina House of Representatives (collectively, “Proposed Intervenors”). (ECF No. 7.) For the reasons that follow, the Court denies the Motion to Intervene without prejudice to the motion being renewed if Proposed Intervenors can demonstrate that the Defendants have, in fact, declined to defend the lawsuit and that all requirements for intervention have been satisfied pursuant to Rule 24 of the Federal Rules of Civil Procedure. Further, Proposed Intervenors are granted the right to participate in this action by filing amicus curiae briefs.

         I. BACKGROUND

         In November 2018, North Carolina voters approved a ballot measure amending the North Carolina State Constitution to require voters to provide photographic identification before voting in person.[2] (ECF No. 1 ¶¶ 62, 64; ECF No. 8 at 8.) On December 5, 2018, the General Assembly passed S.B. 824, which was thereafter vetoed by Roy Asberry Cooper III, Governor of North Carolina (the “Governor”), on December 14, 2018. (ECF No. 1 ¶¶ 1, 78; ECF No. 8 at 8; ECF No. 8-1 at 2-3; ECF No. 8-2.) The General Assembly nevertheless codified S.B. 824 into law by an override of the Governor's veto on December 19, 2018. (ECF No. 1 ¶¶ 1, 79; ECF No. 8-2 at 22.)

         On December 21, 2018, Plaintiffs filed suit in this Court against the Governor and the members of the North Carolina State Board of Elections. (See ECF No. 1.) All Defendants have been sued in their official capacities and all are represented by the North Carolina Attorney General. (See ECF Nos. 1, 19, 27, 28.) In the Complaint, Plaintiffs challenge the provisions of S.B. 824 which impose voter photo identification requirements, as well as the provisions “that expand the number of poll observers and the number[ ] of people who can challenge ballots.” (ECF No. 1 ¶¶ 106-07.) Plaintiffs allege that “[t]hese provisions, separately and together, will have a disproportionately negative impact on minority voters, ” (id. ¶ 80), ultimately resulting in “the effective denial of the franchise and dilution of [African American and Latino] voting strength, ” (id. ¶ 7). Plaintiffs' Complaint further alleges that the challenged provisions “impose discriminatory and unlawful burdens on the right to vote that are not justified by any legitimate or compelling state interest.” (Id. ¶ 8.) In addition, Plaintiffs allege that the challenged provisions of S.B. 824 violate Section 2 of the Voting Rights Act of 1965, as well as the Fourteenth and Fifteenth Amendments to the United States Constitution. (Id. ¶¶ 105-46.) Plaintiffs seek injunctive and declaratory relief to prevent Defendants “from implementing, enforcing, or giving effect to the [challenged] provisions of S.B. 824.” (Id. ¶ 147.)

         On January 14, 2019, less than one month after Plaintiff filed suit, Senator Berger and Representative Moore, acting in their official capacities, filed the instant Motion to Intervene on behalf of the General Assembly seeking intervention as of right pursuant to Rule 24(a) or, alternatively, permissive intervention pursuant to Rule 24(b).[3] (ECF Nos. 7, 8.) In response, the Governor states that he “does not take a position on the [M]otion to [I]ntervene.” (ECF No. 34 at 1.) Likewise, Defendants Robert Cordle, in his official capacity as Chair of the North Carolina State Board of Elections, Stella Anderson, in her official capacity as Secretary of the North Carolina State Board of Elections, and Kenneth Raymond, Jefferson Carmon III, and David C. Black, in their official capacities as members of the North Carolina State Board of Elections (collectively, the “BOE Defendants”) state in their response to the instant motion that they “neither consent nor object to the pending [M]otion to [I]ntervene.” (ECF No. 36 at 1.) Plaintiffs, however, oppose Proposed Intervenors' request to intervene as of right or permissively. (ECF No. 38.)


         A. Standing

         As an initial matter, the Court notes that in their response to the Motion to Intervene, Plaintiffs raise the issue of Article III standing which “is a threshold jurisdictional question, ” Pye v. United States, 269 F.3d 459, 466 (4th Cir. 2001). (See ECF No. 38 at 10-11, 22-25.) Specifically, Plaintiffs argue that Proposed Intervenors “may not intervene because [they] lack[ ] Article III standing, which is a requirement for intervention as a defendant in a federal court.” (Id. at 10-11, 22-23.) In support of this argument, Plaintiffs cite a number of cases from other circuits stating that an intervenor-defendant must establish Article III standing. (See Id. at 10, 22 (citing cases from the D.C. Circuit, as well as the Seventh, Eighth, and Tenth Circuit Courts of Appeals).) However, as noted by Proposed Intervenors, Plaintiffs fail to cite any Fourth Circuit case requiring that, in addition to satisfying the Rule 24 requirements, an intervenor-defendant must also establish Article III standing. (ECF No. 48 at 7.) Nor could this Court find a Fourth Circuit case setting forth such a requirement. Rather, it appears, that “[c]ourts remain divided . . . on the question of whether an intervenor must establish Article III standing.” 13A Charles A. Wright et al., Federal Practice & Procedure, § 3531, at 51 (3d ed. 2008). Compare City of Herriman v. Bell, 590 F.3d 1176, 1183-84 (10th Cir. 2010) (stating that would-be intervenors need not establish constitutional standing to intervene), and Perry v. Schwarzenegger, 630 F.3d 898, 906 (9th Cir. 2011) (same), with United States v. Metro. St. Louis Sewer Dist., 569 F.3d 829, 833 (8th Cir. 2009) (stating that “a party seeking to intervene must establish Article III standing in addition to the requirements of Rule 24”), and United States v. Philip Morris USA Inc., 566 F.3d 1095, 1145 (D.C. Cir. 2009) (same). Thus, given the silence on the issue by the Fourth Circuit, this Court declines to impose such a requirement on the Proposed Intervenor-Defendants in this action.

         B. Intervention as of Right

         Proposed Intervenors first seek intervention as of right pursuant to Rule 24(a) of the Federal Rules of Civil Procedure. (ECF No. 8 at 11-21.) The Fourth Circuit has “note[d] that liberal intervention is desirable to dispose of as much of a controversy ‘involving as many apparently concerned persons as is compatible with efficiency and due process.'” Feller v. Brock, 802 F.2d 722, 729 (4th Cir. 1986) (quoting Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967)). “Liberality does not, however, entail resolving every possible doubt in favor of intervention, and [Rule 24] sets standards for intervention that must be observed and applied thoughtfully by courts.” Ohio Valley Envtl. Coal., Inc. v. McCarthy, 313 F.R.D. 10, 16 (S.D. W.Va. 2015). Rule 24(a) provides as follows:

On timely motion, the court must permit anyone to intervene who:
. . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

Fed. R. Civ. P. 24(a)(2). The Fourth Circuit has interpreted Rule 24(a)(2) to entitle intervention as of right if, in addition to timeliness, [4] the movant demonstrates: “(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.” Teague v. Bakker, 931 F.2d 259, 260-61 (4th Cir. 1991). “[A] would-be intervenor bears the burden of demonstrating to the court a right to intervene.” Arista Records, LLC v. Doe No. 1, 254 F.R.D. 480, 481 (E.D. N.C. 2008) (alteration in original) (quoting In re Richman, 104 F.3d 654, 658 (4th Cir. 1997)). “If the movant fails to satisfy any one of the requirements, then intervention as of right is defeated.” Students for Fair Admissions Inc. v. Univ. of N.C. , 319 F.R.D. 490, 494 (M.D. N.C. 2017) (citing Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir. 1999)). See United Guar. Residential Ins. Co. of Iowa v. Phila. Sav. Fund Soc'y, 819 F.2d 473, 474 (4th Cir. 1987) (“In order to successfully intervene, . . . [movant] must meet all three requirements [of Rule 24(a)].”).

         1. Interest in the Subject Matter

         “While Rule 24(a) does not specify the nature of the interest required for a party to intervene as a matter of right, the Supreme Court has recognized that ‘[w]hat is obviously meant . . . is a significantly protectable interest.” Teague, 931 F.2d at 261 (alterations in original) (internal quotation marks omitted). Proposed Intervenors argue that they “have a significantly protectable interest in the validity of S.B. 824, which the North Carolina General Assembly enacted over the Governor's veto.” (ECF No. 8 at 12.) Plaintiffs argue in opposition that “[t]he General Assembly's interest in protecting S.B. 824 from invalidation amounts to nothing but a generalized interest, shared by all North Carolinians, in having laws enforced.” (ECF No. 38 at 16.)

         “Courts have recognized that legislators have an interest in defending the constitutionality of legislation passed by the legislature when the executive declines to do so.” Fisher-Borne v. Smith, 14 F.Supp.3d 699, 703, 707, 710 (M.D. N.C. 2014) (emphasis added) (granting motion to intervene “but only for the purpose of lodging an objection and preserving that objection” for appeal where it appeared to the court that the Attorney General did not intend to appeal on behalf of the State). See Revelis v. Napolitano, 844 F.Supp.2d 915, 924-25 (N.D. Ill. 2012) (finding that intervention of right was appropriate where “[t]he House [of Representatives] has an interest in defending the constitutionality of legislation which it passed when the executive branch declines to do so”); see also I.N.S. v. Chadha, 462 U.S. 919, 928, 939 (1983) (explaining that “Congress is . . . a proper party to defend the constitutionality of [a federal law]” where an agency of the government agreed with, and joined in, the plaintiff's challenge to the constitutionality of an immigration statute).

         Plaintiffs initiated this official-capacity suit against the Governor and the BOE Defendants (collectively, “State Defendants”), neither of whom have declined to defend the lawsuit. Nor have State Defendants expressed an intention to so decline. The Governor and the BOE Defendants are represented by the Attorney General, (see ECF Nos. 19, 27, 28), and although they take no position on the instant Motion to Intervene, they “dispute[ ] the contention raised by the [P]roposed [I]ntervenors that the Governor and/or the State Board members represented by the Attorney General's Office are not capable of defending this lawsuit.” (ECF No. 34 at 2 (footnote omitted); see ECF No. 36 at 2 (“For the reasons discussed by Governor Cooper in his response, the State Board Defendants [likewise] disagree with the Proposed Intervenors' contention . . . that the State Board Defendants represented by the [Attorney General] are not capable of defending this lawsuit.” (citation omitted).) The Governor further contends that the named defendants “and the Attorney General's Office are fully capable of performing their duties on behalf of the people of North Carolina.” (ECF No. 34 at 2.) The Governor and the BOE Defendants have each separately moved to dismiss Plaintiffs' Complaint, (see ECF Nos. 42, 44), as more fully discussed below.

         Proposed Intervenors argue that Supreme Court precedent “establishes that state legislative officials have the authority to defend state enactments in federal court when State law ‘authorize[s]' them ‘to represent the [State] Legislature in litigation.'” (ECF No. 8 at 12- 13 (alterations in original) ...

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