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

• Decision Date: 14 August 2020
• Docket Number: No. 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, 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, 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.
• Court: U.S. Court of Appeals — Fourth Circuit

970 F.3d 489

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,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, 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.

No. 19-2273

United States Court of Appeals, Fourth Circuit.

Argued: May 27, 2020

Decided: August 14, 2020

ARGUED: David Henry Thompson, COOPER & KIRK PLLC, Washington, D.C., for Appellants. Stephen K. Wirth, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C.; Paul Mason Cox, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Peter A. Patterson, Nicole J. Moss, Haley N. Proctor, Nicole Frazer Reaves, COOPER & KIRK PLLC, Washington, D.C.; Nathan A. Huff, PHELPS DUNBAR LLP, Raleigh, North Carolina, for Appellants. Joshua H. Stein, Attorney General, Olga E. Vyotskaya de Brito, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for State Board Appellees. Irving Joyner, Cary, North Carolina; Penda D. Hair, Washington, D.C., Caitlin A. Swain, FORWARD JUSTICE, Durham, North Carolina; John C. Ulin, Los Angeles, California, James W. Cooper, Jeremy C. Karpatkin, Andrew T. Tutt, Jacob Zionce, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellees 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, and Winston Salem-Forsyth County NAACP.

Before HARRIS, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

Vacated and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Richardson joined. Judge Harris wrote a dissent.

QUATTLEBAUM, Circuit Judge:

Philip E. Berger, President Pro Tempore of the North Carolina Senate, and Timothy K. Moore, Speaker of the North Carolina House of Representatives, appeal the district court's denial of their renewed motion to intervene in an action brought by 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 and the Winston Salem-Forsyth County NAACP (collectively, the "NAACP"). For the reasons set forth below, we vacate the district court's order denying the motion and remand for further consideration consistent with this opinion.

I.

On December 6, 2018, after being referred to several committees and going through amendments and readings in both the House and Senate, the North Carolina General Assembly ratified Senate Bill 824, titled "An Act to Implement the Constitutional Amendment Requiring Photographic Identification to Vote" ("S.B. 824"), which established, inter alia , photographic voter identification requirements for elections in North Carolina. The bill was presented to Governor Roy Asberry Cooper, III, that same day. On December 14, 2018, Governor Cooper vetoed the bill. On December 18, 2018, the Senate voted to override the veto, and the next day, the House voted similarly. Thus, on December 19, 2018, S.B. 824 was enacted as North Carolina Session Law 2018-144.

On December 20, 2018, the NAACP sued Governor Cooper; the Chair of the North Carolina Board of Elections; the Secretary of the North Carolina State Board of Elections; and seven other members of the North Carolina State Board of Elections¹ (the "State Defendants") challenging the validity of S.B. 824. In its complaint, the NAACP contends that S.B. 824 has a disparate impact on African American and Latino citizens of North Carolina in violation of Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, as well as the Fourteenth and Fifteenth Amendments of the United States Constitution. The NAACP sought, among other relief, a declaration that the challenged provisions of S.B. 824 violate Section 2 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments, and an injunction against the implementation of the provisions of S.B. 824 that impose voter-identification requirements.

Relevant here, in challenging S.B. 824, the NAACP sued the Governor (who publicly opposed the bill) and the State Board (which is composed of members appointed by the Governor). The NAACP did not sue the North Carolina General Assembly, any of its general members, or any other proponents of the bill. As a result, the parties defending the bill were parties with an historical opposition to the bill or entities under the indirect control of such parties. Further, the Attorney General tasked to represent those defendants has a similar history of opposing the bill under challenge.

On January 14, 2019, Berger and Moore (the "Proposed Intervenors") moved under Federal Rule of Civil Procedure 24 to intervene on behalf of the North Carolina General Assembly to oppose the NAACP's challenges to S.B. 824. Seeking to intervene as a matter of right under Rule 24(a) and, alternatively, permissively under Rule 24(b), the Proposed Intervenors argued that state law, specifically N.C. Gen. Stat. § 1-72.2(a) and (b), expresses the public policy of the State of North Carolina that the President Pro Tempore of the Senate and the Speaker of the House represent the State of North Carolina in defense of its statutes. They further argued that the statute provides they have standing as agents of the State of North Carolina in such actions and requests that federal courts permit their intervention to adequately represent the State and General Assembly's interests in statutes, like S.B. 824, whose constitutionality is challenged. The State Defendants neither consented nor objected to the motion to intervene while the NAACP opposed the request to intervene as of right or permissively. (J.A. 371.)

On June 3, 2019, the district court denied the motion to intervene, largely concluding that the State Defendants were required by provisions of the North Carolina Constitution and other North Carolina statutes to defend the State, that the State Defendants had not abdicated their responsibility to defend S.B 824, and that, accordingly, the Proposed Intervenors failed to demonstrate the requisite "strong showing of inadequacy" to overcome the presumption of adequate representation by the State Defendants. The district court's denial was without prejudice to the motion being renewed if the Proposed Intervenors could show that the State Defendants no longer intended to defend the lawsuit and the requirements for intervention were otherwise satisfied. While denying the motion to intervene, the district court allowed the Proposed Intervenors to participate in the action by filing amicus curiae briefs.

On July 19, 2019, the Proposed Intervenors filed a renewed motion to intervene, arguing that it was apparent that the State Defendants would not fully defend S.B. 824. On September 17, 2019, after the State Defendants filed opposition papers, the Proposed Intervenors moved to ascertain the status of their renewed motion, noting that they had not been a part of discovery and initial planning of the S.B. 824 litigation, and informing the district court that, if their renewed motion was not ruled on by September 23, 2019, they planned to appeal the "de facto denial" of their motion and/or file a mandamus petition with the Fourth Circuit. (J.A. 778.)

On September 23, 2019, the Proposed Intervenors, having received no ruling from the court, noticed the appeal seeking review of a "de facto" denial of their renewed motion to intervene (No. 19-2048) and petitioned for a writ of mandamus directing the district court to permit intervention (No. 19-2056). The NAACP moved to dismiss the appeal. On October 8, 2019, we denied the mandamus petition and granted the motion to dismiss the interlocutory appeal, concluding that we lacked appellate jurisdiction based on the record at the time.

On November 7, 2019, the district court denied the renewed motion. The court concluded that its previous Rule 24 analysis, as set forth in its June 3 order, remained undisturbed and declined to revisit its rulings from that order. It then evaluated the Proposed Intervenors’ new allegations determining they did not involve any new evidence that the State Defendants had declined to defend the lawsuit. The district court thus denied the "Renewed Motion to Intervene" with prejudice and reiterated that the Proposed Intervenors were permitted to participate in the action by filing amicus curiae briefs.

On November 11, 2019, the Proposed Intervenors filed a notice of appeal from the order denying their renewed motion to intervene. (J.A. 3248.)

II.

Before we address the merits of the appeal, we must first consider several threshold matters.

A.

The NAACP argues that the Proposed Intervenors’ failure to appeal the denial of their initial motion to intervene divests us of appellate jurisdiction to consider this appeal. In response, the Proposed Intervenors argue we have jurisdiction to review the denial of the renewed motion to intervene which merged with the order denying their initial motion to intervene.

We may exercise jurisdiction only over final orders and certain interlocutory and collateral orders. See 28 U.S.C. §§ 1291 ; 1292; Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 545, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The denial of a ...