Berger v. N.C. State Conference of the NAACP

• Decision Date: 23 June 2022
• Docket Number: 21-248
• Citation: 142 S.Ct. 2191,213 L.Ed.2d 517
• Parties: Philip E. BERGER, et al., Petitioners v. NORTH CAROLINA STATE CONFERENCE OF THE NAACP, et al.
• Court: U.S. Supreme Court

142 S.Ct. 2191

213 L.Ed.2d 517

Philip E. BERGER, et al., Petitioners

v.NORTH CAROLINA STATE CONFERENCE OF THE NAACP, et al.

No. 21-248

Supreme Court of the United States.

Argued March 21, 2022

Decided June 23, 2022

David H. Thompson, Washington, DC, for the Petitioners.

Elisabeth S. Theodore, Washington DC, for the NAACP Respondents.

Deputy Solicitor General Sarah Boyce, for the State Respondents.

David H. Thompson, Counsel of Record, Peter A. Patterson, Brian W. Barnes, Nicole J. Moss, Nicholas A. Varone, Cooper & Kirk, PLLC, New Hampshire, Avenue, N.W. Washington, D.C. for Petitioners.

Caitlin A. Swain, Penda D. Hair, Kathleen E. Roblez, Aviance D. Brown, Ashley M. Mitchell, Lori L. Sherman, Forward Justice, Durham, NC, Irving Joyner, Cary, NC, Elisabeth S. Theodore, Counsel of Record, Andrew T. Tutt, Stephen K. Wirth, Samuel F. Callahan, Kolya D. Glick, John Swanson, Dana Or, Arnold & Porter, Kaye Scholer LLP, Washington, DC, for Respondents.

Joshua H. Stein, Attorney General, Ryan Y. Park, Solicitor General, Counsel of Record, Sarah G. Boyce, James W. Doggett, Deputy Solicitors General, Sripriya Narasimhan, Deputy General Counsel, South A. Moore, General Counsel Fellow, Olga E. Vysotskaya de Brito, Terence Steed, Mary Carla Babb, Laura McHenry, Special Deputy Attorneys General, N.C. Department of Justice, Raleigh, NC, for Petitioners.

Justice GORSUCH delivered the opinion of the Court.

At the heart of this lawsuit lies a challenge to the constitutionality of a North Carolina election law. But the merits of that dispute are not before us, only an antecedent question of civil procedure: Are two leaders of North Carolina's state legislature entitled to participate in the case under the terms of Federal Rule of Civil Procedure 24(a)(2) ?

I

A

Within wide constitutional bounds, States are free to structure themselves as they wish. Often, they choose to conduct their affairs through a variety of branches, agencies, and elected and appointed officials. These constituent pieces sometimes work together to achieve shared goals; other times they reach very different judgments about important policy questions and act accordingly. This diffusion of governmental powers within and across institutions may be an everyday feature of American life. But it can also pose its difficulties when a State's laws or policies are challenged in federal court.

Suppose someone seeks to attack a state law on the ground that it is inconsistent with the Federal Constitution. Generally, States themselves are immune from suit in federal court. See Sossamon v. Texas , 563 U.S. 277, 284, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011). So usually a plaintiff will sue the individual state officials most responsible for enforcing the law in question and seek injunctive or declaratory relief against them. See Ex parte Young , 209 U.S. 123, 159–160, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Despite the artifice, of course, a State will as a practical matter often retain a strong interest in this kind of litigation. After all, however captioned, a suit of this sort can implicate "the continued enforceability of [the State's] own statutes." Maine v. Taylor , 477 U.S. 131, 137, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986). To defend its practical interests, the State may choose to mount a legal defense of the named official defendants and speak with a "single voice," often through an attorney general. Virginia House of Delegates v . Bethune-Hill , 587 U. S. ––––, ––––, 139 S.Ct. 1945, 1952, 204 L.Ed.2d 305 (2019).

Still, not every State has structured itself this way. Some have chosen to authorize multiple officials to defend their practical interests in cases like these. See ibid. North Carolina falls into this camp. The State's attorney general wields some authority to represent individual official defendants in federal litigation. See Martin v. Thornburg , 320 N.C. 533, 545–546, 359 S.E.2d 472, 479 (1987) ; N. C. Const., Art. III, §§ 7 (1), (2) (establishing the office of attorney general and declaring that his "duties shall be prescribed by law"). But North Carolina's General Assembly has also empowered the leaders of its two legislative houses to participate in litigation on the State's behalf under certain circumstances and with counsel of their own choosing. See N. C. Gen. Stat. Ann. § 1–72.2 (2021).

The reasons why a State might choose to proceed this way are understandable enough. Sometimes leaders in different branches of government may see the State's interests at stake in litigation differently. Some States may judge that important public perspectives would be lost without a mechanism allowing multiple officials to respond. It seems North Carolina has some experience with just these sorts of issues. More than once a North Carolina attorney general has opposed laws enacted by the General Assembly and declined to defend them fully in federal litigation. See, e.g. , North Carolina v . North Carolina State Conference of NAACP , 581 U. S. ––––, ––––, 137 S.Ct. 1399, 1399, 198 L.Ed.2d 220 (2017) (ROBERTS, C. J., statement respecting denial of certiorari); App. 79; see also N. Devins & S. Prakash, Fifty States, Fifty Attorneys General, and Fifty Approaches to the Duty To Defend, 124 Yale L. J. 2100, 2152, n. 217, 2187 (2015).

B

The facts of this case also illustrate how divided state government can lead to disagreements over the defense of state law in federal court. In November 2018, the people of North Carolina amended the State Constitution to provide that "[v]oters offering to vote in person shall present photographic identification [(photo ID)]." Art. VI, § 2(4). The people further provided that "[t]he General Assembly shall enact general laws governing the requirements of such photographic identification, which may include exceptions." Ibid. Consistent with that directive, the General Assembly eventually approved Senate Bill 824 (S. B. 824). 2017 Gen. Assem., 2018 Reg. Sess. Under that law's terms, those seeking to vote must do one of three things: present an acceptable photo ID, complete a provisional ballot and later produce a photo ID, or submit a form explaining why they cannot present a photo ID. See N. C. Gen. Stat. Ann. §§ 163A–1145.1(a), (c), (d), as added by § 1.2(a), 2018 N. C. Sess. Laws 144, pp. 73–74. Photo ID cards are available free of charge in each of the State's 100 counties without the need for corroborating documentation. § 163A–869.1, as added by § 1.1(a), id ., at 72–73. After the law's passage, the Governor vetoed the bill, the General Assembly responded by overriding that veto, and S. B. 824 went into effect on December 19, 2018.

The next day, the National Association for the Advancement of Colored People (NAACP) sued the Governor and the members of the State Board of Elections (collectively, Board). The Governor appoints the Board's members and may remove them under certain circumstances. See N. C. Gen. Stat. Ann. §§ 143B–16, 163–19, 163–40. In its lawsuit, the NAACP alleged that S. B. 824 offends the Federal Constitution. The State's attorney general assumed responsibility for defending the Board. See § 114–2. Like the Governor, the attorney general is an independently elected official. See N. C. Const., Art. III, § 7 (1). Much like the Governor, too, while serving as a state senator the attorney general voted against an earlier voter-ID law and filed a declaration in support of a legal challenge against it. See North Carolina State Conference of NAACP v. McCrory , 997 F.Supp.2d 322, 337–338, 357–359 (MDNC 2014).

Soon, the speaker of the State House of Representatives and president pro tempore of the State Senate (legislative leaders) moved to intervene. App. 52. They noted that North Carolina law expressly authorizes them "to intervene on behalf of the General Assembly as a party in any judicial proceeding challenging a North Carolina statute or provision of the North Carolina Constitution." N. C. Gen. Stat. Ann. § 1–72.2(b). They observed that, in cases of this sort, state law further provides that "both the General Assembly and the Governor constitute the State of North Carolina." § 1–72.2(a). And the legislative leaders suggested that, without their participation, important state interests would not be adequately represented in light of the Governor's opposition to S. B. 824, the Board's allegiance to the Governor, and the attorney general's opposition to earlier voter-ID efforts. App. 65–70. Finally, the legislative leaders pointed to parallel state-court proceedings in which they claimed the Board had offered only a "tepid" defense of S. B. 824. Id. , at 127, n. 1.

The District Court denied the motion to intervene. North Carolina State Conference of NAACP v. Cooper , 332 F.R.D. 161 (MDNC 2019). In doing so, the court applied a "presumption" that the legislative leaders’ interests would be adequately represented by the Governor and Board and their legal representative, the attorney general. Id. , at 168–170. On the court's view, the legislative leaders might someday have an interest sufficient to warrant intervention if the existing parties refused to offer any defense of S. B. 824. Id. , at 166. But because nothing like that had yet happened, the District Court denied the motion to intervene without prejudice to renewal later. Id. , at 172–173.

In time, the legislative leaders took up the District Court's offer to renew their motion. They pointed to this Court's intervening decision in Bethune-Hill , which "clarified" that legislative leaders sometimes may be legally entitled to intervene and represent "the interest of the State in defending the constitutionality of " a state law. App. 159. They also updated the District Court on the Board's conduct in state-court proceedings. There, the Board had conceded that its " ‘primary objective’ " wasn't defending S. B. 824, but obtaining guidance regarding which law it would need to enforce in an upcoming election (S. B. 824 or preexisting law). Id. , at 156. Seizing on this concession, the state-cour...