Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on June 23 and 24, 2022 (Part I).
Opinion: Berger v. North Carolina State Conf. of the NAACP, 21-248
Berger v. North Carolina State Conf. of the NAACP, 21-248. In an 8-1 decision, the Court held that two leaders of the North Carolina General Assembly were entitled to intervene as of right under Federal Rule of Civil Procedure 24(a)(2) to defend against a challenge to a state law. North Carolina law authorizes the leaders of its two legislative houses to participate in litigation on the state’s behalf under certain circumstances. In 2018, North Carolina amended the state constitution to require photo identification in order to vote. The Governor vetoed the bill, but the General Assembly overrode the veto. The NAACP sued the Governor (who was later dismissed from the suit) and the State Board of Elections (Board) in federal court, alleging that the voter-ID law is unconstitutional. The attorney general defended the law on behalf of the Board. The two legislative leaders repeatedly moved to intervene in the case on behalf of the General Assembly. The leaders argued that the Board offered only a “tepid” defense of the statute in parallel state-court proceedings, and that important state interests would not be adequately represented in light of the Governor’s opposition to the bill, the Board’s allegiance to the Governor (who may remove Board members), and the Attorney General’s opposition to earlier voter-ID efforts. The district court denied the motion to intervene, and the en banc Fourth Circuit affirmed, holding that the leaders could not overcome a “heightened presumption” that the Board “adequately represented” their interests. In an opinion by Justice Gorsuch, the Court reversed.
Rule 24(a)(2) provides that a court “must” permit anyone to intervene who (1) on timely motion, (2) “claims an interest relating 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,” (3) “unless existing parties adequately represent that interest.” Only the rule’s second and third requirements were disputed. Starting with the second, the Court stated that federal courts “should rarely question that a state’s interests will be practically impaired or impeded if its duly authorized representatives are excluded from participating in federal litigation challenging state law.” Doing so would ignore the state’s choice of who should represent its interests, while encouraging plaintiffs to control which state actors they will face in litigation. The Court found that respecting states’ distribution of governmental powers enables states to balance federal authority and serve as local laboratories for innovation and experimentation. Participation of authorized state agents promotes informed decisionmaking by federal courts and avoids the risk of setting aside a state law based on an incomplete understanding of the state interests. Thus, the Court held that the legislative leaders have an interest that may be impaired without their participation. Contrary to the NAACP’s argument, those leaders are not already “existing” parties in the lawsuit. Although the state’s interests are at stake, the NAACP sued only specific state officials, and a plaintiff who “chooses to name this or that official defendant does not necessarily and always capture all relevant state interests.”
The lower courts held that the leaders did not overcome a presumption that the Board adequately represented their interests, but the Court had previously described Rule 24’s test as presenting proposed intervenors with only a “minimal challenge.” Here, North Carolina authorized different agents to defend its interests because each may vindicate different points of view on the state’s behalf. “For a federal court to presume a full overlap of interests when state law more nearly presumes the opposite would make little sense and do much violence to our system of cooperative federalism.” Even if different state agents have “related” interests, they cannot be presumed to have “identical” interests that would trigger a presumption of adequate representation. The Court did not “cast aspersions” on anyone, but it noted that the history of this case reveals why a state might authorize multiple agents to represent its interests. For example, the Board made some litigation decisions based on administrative concerns, whereas the legislative leaders would focus on “defending the law vigorously on the merits,” thereby offering a different perspective. The Board members were potentially removable by the Governor who vetoed the bill, and they were represented by an elected attorney general who might have felt allegiance to the voting public and who had previously opposed similar legislation. This illustrates the different viewpoints of the Board and the legislative leaders. The Court concluded that whatever additional burdens intervenors will place on federal courts are within the bounds of ordinary case management.
Justice Sotomayor dissented, writing that Rule 24 does not give a state “the right to have multiple parties represent the same interest.” She inferred that although the Court denied casting aspersions, it seemed to believe that the Attorney General’s performance fell short in defending the law at issue. In her opinion, the state’s interests were being adequately represented by an Attorney General whose defense of the law “has thus far proved successful,” and the Court wrongly created a presumption of inadequate representation. Justice Sotomayor opined that district courts have a duty to assess the adequacy of existing representation, keeping in mind the costs intervention will have on the original parties, the court, and all others whose interests depend on timely resolution of a given case. The Court should not allow state law to “hijack federal courts’ ability to manage litigation involving States.” Justice Sotomayor disagreed that the legislative leaders had any distinct interest in the law, only a disagreement over strategy at different stages of litigation, which does not render representation inadequate.