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North Carolina State Conference of The NAACP v. Cooper

United States District Court, M.D. North Carolina

November 7, 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, Defendants.


          Loretta C. Biggs, United States District Judge

         Before the Court is a motion captioned “Renewed Motion to Intervene, ” (ECF No. 60), by Philip E. Berger, in his official capacity as President Pro Tempore of the North Carolina Senate, and Timothy K. Moore, in his official capacity as Speaker of the North Carolina House of Representatives (collectively, “Proposed Intervenors”). For the reasons that follow, the motion will be denied.

         I. BACKGROUND

         Plaintiffs initiated this action on December 20, 2018, challenging the constitutionality of specific provisions of Senate Bill 824 (“S.B. 824”), “An Act to Implement the Constitutional Amendment Requiring Photographic Identification to Vote.”[1] (See ECF Nos. 1; 8-2 at 2.) On January 14, 2019, Proposed Intervenors filed a motion to intervene on behalf of the General Assembly, seeking intervention as of right pursuant to Federal Rule of Civil Procedure 24(a) or, alternatively, permissive intervention pursuant to Rule 24(b). (See ECF Nos. 7; 8 at 2.) In its June 3rd order, this Court denied that motion, but did so without prejudice to the motion being renewed “if it [could] be demonstrated that State Defendants have in fact declined to defend the instant lawsuit.”[2] (ECF No. 56 at 23). The June 3rd order was not appealed within the time required and, therefore, remains the law of this case. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16 (1988); Smith v. SEECO, Inc., 922 F.3d 398, 404 (8th Cir. 2019).

         On July 19-just six weeks after the Court denied their motion to intervene- Proposed Intervenors filed the instant motion, contending that the Defendant State Board of Election's (the “State Board”) conduct in this case and a related state-court case, Holmes v. Moore, No. 18-cv-15292 ( N.C. Super. Ct.), had made it “apparent that the State Board will decline to defend adequately, if at all, the key claim in this lawsuit.” (ECF Nos. 60; 61 at 6-7, 9.) On September 17, Proposed Intervenors informed this Court that, in the event their renewed motion was not decided by September 20, they would treat the Court's silence as a “de facto denial of their motion.” (ECF No. 71 at 4.) No. decision was issued, and on September 23 Proposed Intervenors filed a notice of appeal from the self-declared “de facto denial of their Renewed Motion to Intervene.” (ECF No. 74 at 2.) On September 26, Proposed Intervenors further filed a petition for writ of mandamus, asking the Fourth Circuit to order this Court to allow intervention. (ECF No. 81 at 2.) The Fourth Circuit summarily dismissed both the interlocutory appeal and the mandamus petition on October 8. (ECF Nos. 88, 90.)

         The State Board of Elections neither consents nor objects to the instant motion, but remains adamant that it is “ready to defend the constitutionality of [S.B. 824].” (ECF No. 65 at 2.) Plaintiffs, on the other hand, oppose the instant motion on the grounds that “no [newly] relevant facts or circumstances” have arisen in the time since the earlier denial, and that the Court's reasons for denying permissive intervention “apply with even greater force now.” (ECF No. 66 at 14-15, 20.)


         In support of this motion, Proposed Intervenors state that they “continue to believe that they were entitled to intervene as of right based on the arguments made in their prior briefing to the Court.” (ECF No. 61 at 16 n.1.) They further argue that they “reserve the right to challenge the Court's rejection of those arguments on appeal.” (Id.) It is clear that Proposed Intervenors misapprehend the status and posture of this case. This Court's Rule 24(a) analysis, set out extensively in its June 3rd order denying Proposed Intervenors' motion to intervene, remains undisturbed. Proposed Intervenors had the opportunity to appeal the Court's denial order; they failed to do so.

         This Court has ruled, and the arguments addressed in its June 3rd denial order will not again be addressed here.[3] See SEECO, 922 F.3d at 404 (explaining that “[t]he denial of a second motion to intervene covering the same grounds as the first . . . does not restart the clock for purposes of an appeal”). Rather this Court will only consider whether Proposed Intervenors have presented evidence, newly available, that speaks to the narrow exception outlined in its prior order: that which “demonstrate[s] that [the State Board] ha[s] in fact declined to defend the instant lawsuit.” (ECF No. 56 at 23.)

         This Court previously explained that Proposed Intervenors' “subjective belief in [the State Board's] ability and incentive to litigate this action” is insufficient to support their claim to intervention as of right. (Id. at 18.) However, Proposed Intervenors now argue that the State Board's recent conduct in both this case and Holmes amounts to something more-hard evidence of an “unwillingness to robustly defend S.B. 824.” (ECF No. 61 at 20.) As detailed below, it is abundantly clear that the State Board is actively and adequately defending this lawsuit. Nevertheless, the Court will evaluate Proposed Intervenors' new allegations.

         A. The Executive Branch Is Defending This Lawsuit

         Proposed Intervenors contend that “the executive branch has declined to robustly and fully defend S.B. 824 in this suit.” (Id. at 19.) A review of the proceedings suggests otherwise. From the outset, the State Board has consistently “denied all substantive allegations of unconstitutionality” in this case. (See ECF Nos. 59; 65 at 6-7.) As one of its first actions, the Board moved to dismiss the suit on federalism grounds; had it succeeded, that motion would have brought this case to a temporary or complete halt. (ECF No. 57 at 6-11.) Further, the Board recently filed an expansive brief opposing Plaintiffs' motion for preliminary injunction on the merits. (See ECF No. 97 at 18-43.) In sum, it is clear to this Court that, at present, the State Board and Attorney General are “meeting [their] duty to defend this action.” (ECF No. 65 at 10.) Proposed Intervenors have offered no real evidence to the contrary.

         B. The Litigation Choices in Holmes Do Not Indicate a Failure to Defend

         Proposed Intervenors urge the Court to look outside of this suit, arguing that the Board's litigation choices in Holmes are predictive of how its defense strategy will ultimately develop here. (See ECF No. 61 at 20.) Proposed Intervenors do not point to a single case suggesting that a defendant's performance-whether adequate, inadequate, or otherwise-in one lawsuit invites intervention in another. Further, the Court finds no merit in Proposed Intervenors' argument that it should draw inferences about how the State Board will act when, as here, the parties, claims, and forums in the two cases are all distinct.[4] (See ECF No. 65-3.) Even so, Proposed ...

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