In North Carolina NAACP State Conf. v. Berger, No. 19-2273 (4th Cir. June 7, 2021), the en banc Fourth Circuit (splitting along party lines) holds 9-6 that a state legislature may only intervene to defend a state law under Fed. R. Civ. P. 24(a)(2) “if a federal court first finds that the Attorney General is inadequately representing that same interest, in dereliction of his statutory duties – a finding that would be ‘extraordinary.’”
In December 2018, the North Carolina General Assembly passed, over the governor’s veto, Senate Bill 824 (S.B. 824). “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.” The NAACP immediately filed suit, alleging that the new law violated Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, as well as the Fourteenth and Fifteenth Amendments.
The GOP legislative leaders moved to intervene under Rule 24(a)(2) on behalf of the General Assembly. “Pointing to past statements opposing voter-ID laws by the Governor and Attorney General, as well as their activity in litigation over previous voter-ID laws in North Carolina, the Leaders claimed that the defendants ‘cannot be trusted to defend S.B. 824 in the same, rigorous manner as Proposed Intervenors – and very well might not defend the law at all.’” The district court denied the motion and the legislators did not appeal.
After the first failed attempt, the legislators renewed their motion citing the intervening U.S. Supreme Court decision, Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019). They argued that under Bethune-Hill they had authority to represent the interests of the State of North Carolina. The legislators also made a record that the Attorney General was not “vigorously defending S.B. 824,” among other things, “argu[ing] only for abstention on federalism grounds and fail[ing] to develop the factual record through expert reports.” The district court again denied the motion.
Judge Harris, writing for the majority, finds no grounds for the legislature to intervene and affirms the district court. First, the court finds appellate jurisdiction, despite that the order denying intervention was nominally “without prejudice.” The district court “signaled that it was finished” with the merits of the intervention motion. “[T]he 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 …. 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.” The order was practically final.
The majority then holds that the legislative leaders failed to establish grounds for mandatory intervention, Fed. R. Civ. P. 24(a)(2), particularly that “existing parties” did not “adequately represent [their] interest,” and thus the district court did not abuse its discretion denying their motion. The court notes the “highly unusual posture” of the case. In most cases involving intervention by state legislators, “a state representative, usually a state attorney general, is not defending state law, or has declined to appeal an adverse ruling …. Here, by contrast, the State of North Carolina’s ‘default’ representative – the Attorney General – has not ‘dropped out of the case.’”
The Fourth Circuit applies the circuit’s “the long-standing [Westinghouse] presumption of adequate representation that arises when ‘the party seeking intervention has the same ultimate objective as a party to the suit,’” unless there is proof of “adversity of interest, collusion, or nonfeasance.” The legislators’ counsel “conceded at oral argument before the en banc court” that the Attorney General seeks “precisely the same objective that they would pursue if allowed to intervene”: upholding the voter-ID statute.
The majority also holds that the legislators did not meet the high burden of rebutting the Westinghouse presumption. The district court found, rather than stark differences of interest between the parties, “only the kind of garden-variety disagreements over litigation strategy that we and other courts consistently have deemed insufficient to overcome a presumption of adequacy.” And “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.”
The majority then takes on “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 so cannot be trusted to robustly defend the act. “That is a startling accusation. The Attorney General has a statutory duty to represent and defend the State and its interests in this litigation …. That the Attorney General may have expressed policy views at odds with S.B. 824 in the past is no ground for a federal court to infer that he would abdicate his official duty to the State by subterfuge, mounting a sham defense of the statute. To suggest otherwise is a disservice to the dignified work of government lawyers who each day put aside their own policy and political preferences to advocate dutifully on behalf of their governments and the general public.”
The dissenting judges instead would have credited N.C. Gen. Stat. §§ 1-72.2 which authorizes the General Assembly to represent the interests of the state in court.
Judge Wilkinson observes that the legislature’s authority was underscored by the “Times, Places and Manner of holding Elections” clause of the U.S. Const. art. I, § 4, cl. 1. “This important task was not delegated to state government in general but to state legislatures in particular …. [T]he ‘interests’ of the proposed intervenors in this case could hardly be more apparent. And in ‘divided government’ states like North Carolina, the danger that the executive or judicial branches may seek to override the constitutionally prescribed legislative role is more than theoretical.”
Judge Niemeyer “emphasize[s] that the issue is … more than a procedural one under Rule 24 …. [U]nderlying that application [of the rule] are questions of substantive state law regarding who the relevant parties are and who defends the state’s interest. The majority opinion does not, except most obliquely, address these questions. And its failure to recognize these aspects is especially significant in view of the history of S.B. 824, which entails a story of political conflicts and differences between the branches of North Carolina government.”
Finally, Judge Quattlebaum (writing for five judges) holds that majority failed to give sufficient weight to the General Assembly’s interest under state law. “The district court did not consider §1-72.2 in its adequacy analysis. But in enacting that statute, North Carolina has expressed its desire for the Leaders to represent it in litigation like the case before us. Implicit in that expression is the state’s belief that, without the involvement of the Leaders, it will not be adequately represented. North Carolina, in enacting the statute, made the predictive judgment that there will be cases where the Executive Branch will not adequately represent its interests. And without stating one way or the other as to whether the Leaders should prevail, the public comments of the Governor and the Attorney General, and the other information they allege, are sufficient to require the statute to be considered.”