This Report summarizes an opinion issued on November 22, 2021 (Part I); and cases granted review on November 15 and 24, 2021 (Part II).
Cases Granted Review: Berger v. North Carolina State Conference of the NAACP, 21-248
Berger v. North Carolina State Conference of the NAACP, 21-248. North Carolina law provides that, when a state statute is challenged as unconstitutional, the Speaker of the House of Representatives and the President Pro Tempore of the Senate shall be necessary parties and have standing to intervene on behalf of the General Assembly as a party. In this case, the en banc Fourth Circuit affirmed a district court ruling denying the Speaker and President Pro Tempore’s attempt to intervene as of right in a case challenging the state’s voter ID law. The three questions presented are: (1) “Whether a state agent authorized by state law to defend the State’s interest in litigation must overcome a presumption of adequate representation to intervene as of right in a case in which a state official is a defendant.” (2) “Whether a district court’s determination of adequate representation in ruling on a motion to intervene as of right is reviewed de novo or for abuse of discretion.” (3) “Whether Petitioners are entitled to intervene as of right in this litigation.”
In 2016, the Fourth Circuit held that a strict voter ID law enacted by North Carolina was invalid because it was enacted with racially discriminatory intent. After taking office, Governor Roy Cooper, represented by Attorney General Josh Stein, successfully moved to dismiss the state’s cert petition. The state General Assembly responded by enacting a law making the Speaker of the House of Representatives and the President Pro Tempore of the Senate “necessary parties” when a state statute is challenged as unconstitutional. In 2018, North Carolina adopted a less-strict voter ID law (over Governor Cooper’s veto). Plaintiffs filed this suit in district court against Governor Cooper and the members of the North Carolina State Board of Elections alleging that the law (S.B. 824) violates Section 2 of the Voting Rights Act and Section 2 and the Fourteenth and Fifteenth Amendments. Petitioners (the Speaker of the House of Representatives and the President Pro Tempore of the Senate) filed a motion to intervene as of right, which was denied without prejudice. In July 2019, petitioners filed a renewed motion to intervene, alleging that the State Board’s defense in parallel state-court litigation showed that it had a primary objective simply of obtaining guidance from the courts on what law it would need to apply. The district court denied intervention, concluding that the State Board (represented by the Attorney General office) was defending the lawsuit and that the litigation choices the State Board made in the state litigation were irrelevant. Less than two months later, the district court granted the plaintiffs’ preliminary injunction motion. The State Board appealed the preliminary injunction but did not seek a stay pending appeal “due to the disruptive effect such relief would have had on the primary election.” On December 2, 2020, the Fourth Circuit reversed the district court’s decision granting a preliminary injunction. Meanwhile, petitioners appealed the denial of their renewed intervention motion, and a divided panel of the Fourth Circuit reversed and remanded. The Fourth Circuit granted en banc review, however, and by a 9-6 vote affirmed the district court’s denial of intervention as of right. 999 F.3d 915.
Under Federal Rule of Civil Procedure 24(a)(2), a party must be allowed to intervene if it filed a timely motion and shows that (1) it has an interest in the subject matter of the action, (2) the interest will be impaired by the action, and (3) the interest is not adequately represented by the existing parties. The en banc Fourth Circuit held that petitioners could not intervene because the Attorney General was already adequately representing the state’s interest in defending S.B. 824. The court reasoned that it has long presumed that an intervenor’s interests will be adequately represented if it shares the same objective as an existing party. Here, petitioners and the existing defendants shared the same objective in defending S.B. 824. The court found that, although petitioners might have some “garden variety disagreements” with “the way in which the Attorney General has chosen to defend S.B. 824,” that is insufficient to overcome the presumption. The court further ruled that the district court had reasonably found that the policy preferences of the Governor and Attorney General had not affected the defense of S.B. 824.
Petitioners argue that the circuits are divided “over whether a state-designated agent must overcome a presumption of adequate representation when seeking to intervene alongside another state official in defense of state law. The Sixth Circuit has rejected any such presumption.” In petitioners’ view, the Supreme Court rejected such a presumption in Trbovich v. United Mine Workers of America, 404 U.S. 528 (1972), which said that an intervenor need make only a “minimal” showing “that representation of his interest may be inadequate.” Petitioners further maintain that nothing in the text of Rule 24(a)(2) “suggests that the ‘adequacy’ of an existing party’s representation should form a significant barrier to intervention.” Petitioners add that “[a] presumption of adequate representation also is insufficiently respectful of sovereign determinations about which agents are necessary to defend a State’s interests in federal court.” Petitioners next contend that the circuits are divided 7-5 on “the question of what standard of review applies to a district court’s decision on a motion to intervene as of right under Rule 24(a)(2).” They maintain that the en banc Fourth Circuit improperly reviewed the district court’s ruling for abuse of discretion, rather than de novo. De novo review applies, they say, because “[q]uestions of law are reviewed de novo,” and “[t]he inquiry under Rule 24(a)(2) is whether Petitioners are entitled to intervene ‘as of right.’ This is not a discretionary judgment.” And whether the putative intervenor’s interests are adequately represented is a “forward-looking” legal judgment. Lastly, petitioners assert that “[u]nder the proper analytical framework, [they] are entitled to intervene as of right in this case.”
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]