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

Decision Date07 June 2021
Docket NumberNo. 19-2273,19-2273
Parties NORTH CAROLINA STATE CONFERENCE OF the NAACP; Chapel Hill-Carrboro NAACP; Greensboro NAACP; High Point NAACP; Moore County NAACP; Stokes County Branch of the NAACP; Winston Salem-Forsyth County NAACP, Plaintiffs – Appellees, v. Philip E. BERGER, in his official capacity as President Pro Tempore of the North Carolina Senate; Timothy K. Moore, in his official capacity as Speaker of the North Carolina House of Representatives, Appellants, and Ken Raymond, in his official capacity as a member of the North Carolina State Board of Elections; Stella Anderson, in her official capacity as Secretary of the North Carolina State Board of Elections; Damon Circosta, in his official capacity as Chair of the North Carolina State Board of Elections; Jefferson Carmon III, in his official capacity as a member of the North Carolina State Board of Elections; David C. Black, in his official capacity as a member of the North Carolina State Board of Elections, Defendants – Appellees.
CourtU.S. Court of Appeals — Fourth Circuit


PAMELA HARRIS, Circuit Judge:

In this appeal, we are asked to decide whether the leaders of the North Carolina House and Senate are entitled to intervene, on behalf of the State of North Carolina, in litigation over the constitutionality of the State's voter-ID law. What makes this case unusual is that North Carolina's Attorney General, appearing for the State Board of Elections, already is representing the State's interest in the validity of that law, actively defending its constitutionality in both state and federal court. Nevertheless, the legislative leaders have moved twice before the district court to intervene so that they also can speak for the State, insisting that this case requires not one but two representatives of the State's interest. Twice, the district court rejected these requests.

We see no abuse of discretion in that decision. At this point in the proceedings, the legislative leaders may assert only one interest in support of intervention: that of the State of North Carolina in defending its voter-ID law. It follows that they have a right to intervene under Rule 24(a)(2) of the Federal Rules of Civil Procedure only 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." See Planned Parenthood of Wis., Inc. v. Kaul , 942 F.3d 793, 801 (7th Cir. 2019). After reviewing the district court's careful evaluation of the Attorney General's litigation conduct, we are convinced that the court did not abuse its discretion in declining to make that extraordinary finding here. Because that is enough to preclude intervention as of right under Rule 24(a)(2), and because we similarly defer to the district court's judgment denying permissive intervention under Rule 24(b), we affirm the district court.


In December 2018, the North Carolina General Assembly passed Senate Bill 824, "An Act to Implement the Constitutional Amendment Requiring Photographic Identification to Vote" ("S.B. 824"). After the House and Senate overrode a veto by North Carolina Governor Roy Asberry Cooper III, S.B. 824 was enacted on December 19, 2018, as North Carolina Session Law 2018-144.

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. See 2018 N.C. Sess. Laws 144, § 1.2(a). To make that easier, the law charges county boards of elections with providing qualifying ID cards free of charge, and provides a mechanism for those without ID to vote by provisional ballot. See id. §§ 1.1(a), 1.2(a).

Along with these voter-ID provisions, S.B. 824 also expands the number of partisan poll observers, as well as the grounds any individual voter can raise to challenge another voter's ballot. See id. §§ 3.1(c), 3.3.

On December 20, 2018 – the day after the law's enactment – the North Carolina State Conference of the NAACP and several of the state's local NAACP branches (collectively, "the NAACP") filed suit challenging S.B. 824. The complaint named as defendants Governor Cooper and several members of the North Carolina State Board of Elections (collectively, "the State Board"), all in their official capacities. The NAACP alleged that S.B. 824 has a disparate impact on African American and Latino residents of North Carolina, resulting in "effective denial of the franchise and dilution of minority voting strength" in violation of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. J.A. 30. The complaint also alleged that several provisions of S.B. 824 intentionally discriminate against African American and Latino voters in violation of the Fourteenth and Fifteenth Amendments of the U.S. Constitution. The NAACP requested declaratory relief and an injunction against the implementation of the challenged provisions.


In this appeal, we consider two successive requests by North Carolina's legislative leaders to intervene to defend against the NAACP's challenge to S.B. 824. The procedural history is complicated. But it also is necessary to understand the posture of this appeal and the resulting limits on our jurisdiction, so we describe it in some detail.


In January of 2019, Philip E. Berger, the President Pro Tempore of the North Carolina Senate, and Timothy K. Moore, the Speaker of the North Carolina House of Representatives, filed their first intervention motion, seeking to intervene on behalf of the North Carolina General Assembly to defend S.B. 824. The state legislative leaders – whom we refer to as "the Leaders" – claimed entitlement to intervene as of right under Federal Rule of Civil Procedure 24(a)(2), and in the alternative asked for permission to intervene under Rule 24(b). The NAACP opposed the motion, and the Governor and the State Board, through the Attorney General as counsel, took no position.

In this first motion, the Leaders purported to speak on behalf of the General Assembly, rather than the State of North Carolina as a whole. That status, the Leaders argued, gave them a protectable interest justifying intervention as of right under Rule 24(a)(2). As the Leaders explained, a North Carolina statute, recently enacted, provides that they "jointly have standing to intervene on behalf of the General Assembly as a party in any judicial proceeding challenging a North Carolina statute," N.C. Gen. Stat. § 1-72.2(b) (emphasis added), and "request[s]" that federal courts permit participation by both the State's legislative and executive branches in cases challenging the validity of state law, id. § 1-72.2(a). According to the Leaders, the General Assembly's "institutional interest in seeing that [its] enactments are not ‘nullified’ " thus satisfied Rule 24(a)(2) ’s interest requirement. J.A. 113–14 (quoting Ariz. State Legis. v. Ariz. Indep. Redistricting Comm'n , 576 U.S. 787, 803, 135 S.Ct. 2652, 192 L.Ed.2d 704 (2015) ).

Moreover, the Leaders continued, that interest was "not adequately represented" already by the existing defendants – the Governor and the State Board, through the Attorney General – for purposes of Rule 24(a)(2) ’s adequacy prong. 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." J.A. 117.

The district court denied the Leaders’ motion on June 3, 2019, finding that the Leaders did not meet the requirements for either mandatory or permissive intervention. See N.C. State Conf. of the NAACP v. Cooper , 332 F.R.D. 161, 171, 173 (M.D.N.C. 2019) (" NAACP I "). The court first rejected the NAACP's threshold argument that the Leaders lacked Article III standing. Because the Leaders sought to intervene only as defendants, the court concluded, and were not themselves invoking the court's jurisdiction, it was not incumbent on them to establish Article III standing. See id. at 165. Acknowledging that courts are divided on this question, the district court found no "Fourth Circuit case setting forth such a requirement" and so "decline[d] to impose" one itself. Id.

The court turned then to intervention as of right, for which a movant must demonstrate: "(1) an interest in the subject matter of the action; (2) that the protection of this interest would be impaired because of the action; and (3) that the applicant's interest is not adequately represented by existing parties to the litigation." Id. at 165 (quoting Teague v. Bakker , 931 F.2d 259, 260–61 (4th Cir. 1991) ). The Leaders could not satisfy those requirements, the district court concluded, mostly because the existing defendants, through the Attorney General, already were actively defending S.B. 824.

As to the interest prong, the court held that, at least while the Governor and the State Board remained in the case, the Leaders did not have a significantly protectable interest in likewise defending the statute's legality. Id. at 168. The court distinguished cases in which state legislators were permitted to intervene in defense of a statute "[w]hen it became apparent that neither the [state] Attorney General nor the named defendants would defend the statute," id. at 167 (quoting Karcher v. May , 484 U.S. 72, 75, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987) ); here, by contrast, the state defendants, represented by the Attorney General, already were defending against the NAACP's challenge to S.B. 824. The court recognized North Carolina's "public policy" in favor of intervention by the Leaders to represent the interests of the General Assembly, id. at 166–67 (quoting N.C. Gen. Stat. § 1-72.2(a) ), but explained that intervention as of...

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