In Berger v. North Carolina State Conference of the NAACP the U.S. Supreme Court held 8-1 that two leaders of North Carolina’s state legislature may participate as intervenors in a challenge to North Carolina’s voter identification (voter-ID) law.
In November 2018, North Carolinians amended their State Constitution to require voter-ID. The governor vetoed legislation implementing the amendment, and the attorney general voted against an earlier voter-ID law when he was a state legislator. The NAACP sued the governor and the state board of elections. The attorney general is defending the elections board. The speaker of the State House of Representatives and president pro tempore of the State Senate (legislative leaders) moved to intervene in the case.
Federal Rules of Civil Procedure Rule 24(a)(2) states a “court must permit anyone to intervene” who, (1) “[o]n timely motion,” (2) “claims an interest relating to 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.”
The parties agreed the legislative leaders’ motion to intervene was timely. Justice Gorsuch, writing for the Court, concluded that they met the Rule’s other two requirements.
Regarding whether “legislative leaders have claimed an interest in the resolution of this lawsuit that may be practically impaired or impeded without their participation” state law indicates they do, according to the Court.
“North Carolina has expressly authorized the legislative leaders to defend the State’s practical interests in litigation of this sort. State law provides that ‘[t]he Speaker of the House of Representatives and the President Pro Tempore of the Senate, as agents of the State, by and through counsel of their choice,’ ‘shall jointly have standing 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.’”
To determine whether the legislative leaders’ interests in this lawsuit are “adequately represent[ed]” by the attorney general the lower court applied a “presumption” they were and held that the leaders could not overcome this presumption.
The Court concluded that “a presumption of adequate representation is inappropriate when a duly authorized state agent seeks to intervene to defend a state law.” “Any presumption against intervention is especially inappropriate when wielded to displace a State’s prerogative to select which agents may defend its laws and protect its interests. Normally, a State’s chosen representatives should be greeted in federal court with respect, not adverse presumptions.”
After the Court ignored the presumption of adequate representation it explained how “this litigation illustrates how divided state governments sometimes warrant participation by multiple state officials in federal court.”
“When confronted with a motion for a preliminary injunction, the Board declined to offer expert-witness affidavits in support of [the voter-ID law], even though its opponent offered many and the legislative leaders sought to supplement the record with their own. After the District Court issued its (ultimately overturned) injunction, the Board declined to seek a stay. That tactical choice, motivated by the Board’s overriding concern for stability and certainty, meant that the State could not enforce its new law during a statewide election. Throughout, Board members have been appointed and potentially removable by a Governor who vetoed [the voter-ID law], and who filed his own briefs in this litigation calling the law ‘unconstitutional’ and arguing that it ‘should never go into effect.’ And at all times, the Board has been represented by an attorney general who, though no doubt a vigorous advocate for his clients’ interests, is also an elected official who may feel allegiance to the voting public or share the Board’s administrative concerns.”