Backus et al v. State of South Carolina, The et al
ORDER granting 94 Motion to Intervene Signed by Honorable Patrick Michael Duffy on 2-8-2012.(prei, )
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
VANDROTH BACKUS, WILLIE
HARRISON BROWN, CHARLESANN )
BUTTONE, BOOKER MANIGAULT,
EDWARD MCKNIGHT, MOSES MIMS, )
JR, ROOSEVELT WALLACE, and
WILLIAM G. WILDER, on behalf of
themselves and all other similarly situated )
THE STATE OF SOUTH CAROLINA, )
NIKKI R. HALEY, in her capacity as
Governor, KEN ARD, in his capacity as
Lieutenant Governor, GLENN F.
MCCONNELL, in his capacity as
President Pro Tempore of the Senate and
Chairman of the Senate Judiciary
Committee, ROBERT W. HARRELL, JR, )
in his capacity as Speaker of the House of )
Representatives, JAMES H. HARRISON, )
in his capacity as Chairman of the House of )
Representatives’ Judiciary Committee,
ALAN D. CLEMMONS, in his capacity as )
Chairman of the House of Representatives’ )
Elections Law Subcommittee, MARCI
ANDINO, in her capacity as Executive
Director of the Election Commission,
JOHN H. HUDGENS, III, Chairman,
NICOLE S. WHITE, MARILYN
BOWERS, MARK BENSON, and
THOMAS WARING, in their capacity as )
Commissioners of the Elections
Case No.: 3:11-cv-03120-HFF-MBS-PMD
This matter is before the Court on Senator Dick Elliott’s Motion to Intervene. For the
reasons stated herein, the Court grants the Motion.
On November 11, 2011, Plaintiffs Vandroth Backus, Willie Harrison Brown, Charlesann
Buttone, Booker Manigault, Roosevelt Wallace, and William G. Wilder (“Plaintiffs”) filed a
complaint seeking declaratory and injunctive relief under Section 2 of the Voting Rights Act of
1965 (“VRA”), 42 U.S.C. § 1973, 42 U.S.C. §1983, Article I, Section 2 of the United States
Constitution, and the Fourteenth and Fifteenth Amendments to the United States Constitution.
Edward McKnight and Moses Mims were added as Plaintiffs in the amended complaint filed on
November 23, 2011. The Amended Complaint alleges that race was the predominant factor in
drawing the redistricting plans because the demographics of the plans show that Defendants
packed additional black voters into districts contrary to natural population shift and contrary to
traditional redistricting principles. Pls.’ Am. Compl. ¶¶ 63-65. Plaintiffs allege an intentional
effort to diminish black voting power in violation of the VRA. Pls.’ Reply Ct. Order 5.
Per the Court’s Order issued on January 19, 2012, Plaintiffs filed a Reply clarifying their
case, specifically the districts at issue, and submitted alternative redistricting plans. Relevant to
this Motion, Plaintiffs allege that “the Senate decided at the outset to draw nine majority-black
Senate Districts 19, 21, 30, 32, 36, 39, 40, 42 and 45 and attempted to keep BVAP as high as
possible in districts 7, 10 and 29 because these seats are represented by black Senators.” Pls.’
Reply Ct. Order 8. Alternatively, Plaintiffs challenge the “entirety of the Senate Plan as an
intentional effort to marginalize black voting power by drawing the nine majority-minority
Senate Districts described above to an arbitrary fifty-percent BVAP standard and intentionally
adding BVAP to districts merely because they happen to elect black Senators in what Plaintiffs
presume is an effort to meet Defendants’ arbitrary fifty-percent standard.” Pls.’ Reply Ct. Order
10. Plaintiffs limited their equal protection claims to Districts 21 and 25 and the affected
neighboring districts (10, 18, 20, 23, 24, and 26).
On February 3, 2012, Senator Elliott, the incumbent Senator for Senate District 28 in
Horry and Dillon Counties, filed a motion pursuant to Fed.R.Civ.P 24(a) seeking intervention of
right or in the alternative, requesting permissive intervention pursuant to Rule 24(b). Senator
Elliott is seeking declaratory and injunctive relief on behalf of himself and the voters of his
District from Act 71, which he alleges discriminates on the basis of race. He alleges that “the
current redistricting plan dilutes the minority voting strength in District 28 by unnecessarily
concentrating minority voters in neighboring Districts 30 and 32.” Mot. Intervene 2. He claims
that District 28 is similarly impacted, but left out of Plaintiffs’ response, despite the inclusion of
District 30, with which he shares a border. Therefore, he seeks intervention to protect his
interests, which are not adequately represented by existing parties.
STANDARD OF REVIEW
Intervention of Right
Rule 24(a)(2) of the Federal Rules of Civil Procedure allows intervention of right when:
upon timely application . . . the applicant claims an interest
relating to the property or transaction which is the subject of the
action and he is so situated that the disposition of the action may as
a practical matter impair or impede his ability to protect that
interest, unless the applicant's interest is adequately represented by
Accordingly, applicants to intervene as matter of right must meet all four of the following
requirements: (1) the application to intervene must be timely; (2) the applicant must have an
interest in the subject matter of the underlying action; (3) the denial of the motion to intervene
would impair or impede the applicant's ability to protect its interest; and (4) the applicant's
interest is not adequately represented by the existing parties to the litigation. Fed. R. Civ. P.
24(a); Newport News Shipbuilding & Drydock Co. v. Peninsula Shipbuilders’ Ass’n, 646 F.2d
117, 120 (4th Cir.1981).
The district court is “‘entitled to the full range of discretion in
determining whether the requirements of [Rule 24(a)(2)] have been met.’” Virginia v.
Westinghouse Electric Co., 542 F.2d 214, 216 (4th Cir. 1976) (quoting Rios v. Enter. Ass’n
Steamfitters, Local 638, 520 F.2d 352, 355 (2d Cir. 1975)).
Federal Rule of Civil Procedure Rule 24(b)(2), as amended in 1966, establishes three
conditions which an applicant must meet in order to intervene as a matter of grace: (1) the
motion to intervene must be timely, (2) an applicant’s claim or defense and the main action have
a question of law or fact in common, and (3) in its discretion, the court shall determine that the
intervention will not unduly delay or prejudice the adjudication of the rights of the original
parties. See TPI Corp. v. Merch. Mart of South Carolina, Inc., 61 F.R.D. 684, 688 (D.S.C.
1974). Rule 24(b) is to be construed liberally in favor of intervention. State of Md., to Use of
Carnesdale v. Rolen, 124 F. Supp. 86, 87 (D.Md. 1954).
The court has broad discretion in granting permissive intervention under Rule 24(b).
Capacchione v. Charlotte-Mecklenburg Bd. of Educ. 179 F.R.D. 505, 509 (W.D.N.C. 1998).
When there is a common question of fact, the court may allow intervention in the interest of
judicial economy. See Thomas v. Henderson, 297 F. Supp. 2d 1311 (S.D. Ala. 2003). A
common question of fact exists when factual determinations of a jury will directly impact the
interest of the intervening party. See id. The court may also consider such relevant factors as the
nature and extent of the intervening party’s interest as well as any conflicts of interest, prejudices
or inequities that intervention may create. Alexander v. Hall, 64 F.R.D 152 (D.S.C. 1974).
After considering the record and all relevant motions, the Court finds that intervention
should be permitted pursuant to Fed. R. Civ. P. 24(b)(1). The Court will briefly address in turn
the three factors, outlined above, which aided the Court in reaching its determination.
When considering the timeliness of a Rule 24(b) motion, the court has broad discretion
and should consider all factors relating to the case in determining if the motion is timely. See
NAACP v. New York, 413 U.S. 345, 365 (1973). The issue of the timeliness of Senator Elliott’s
motion presents a close call. However, due to the nature of this case and the timing of Plaintiffs’
response, the Court finds that it is appropriate to give Senator Elliott the benefit of the doubt
because he raises the issue of not being protected by Plaintiffs’ plans. Therefore, the Court
concludes that Senator Elliott’s motion is timely.
Common Questions of Law and Fact
Next, the court considers whether the applicant has a question of law or fact that is
common with the action. Fed.R.Civ.P 24(b). Senator Elliott claims that his interests arise from
identical issues of law and common questions of fact at issue in this case. Specifically, he argues
that he asserts the same claims and need for remedy at issue in this action.
The Court agrees that Senator Elliott’s claims and the Plaintiffs’ claims share common
questions of law and fact. He is asserting the same causes of action, and his claims will also
depend on whether race was intentionally used by Defendants as the predominant factor in
drawing the plans to dilute minority voting strength. The underlying facts giving rise to the
causes of action asserted by both Senator Elliott and Plaintiffs are identical. The Court is mindful
that the purpose of Rule 24—to prevent multiplicity of suits involving common questions of law
or fact—should not be ignored. Reich v. Webb, 336 F.2d 153 (9th Cir. 1964), cert. denied, 380
U.S. 915 (1965); Merch. Mart of South Carolina, 61 F.R.D. at 690-91. Therefore, Senator
Elliott’s motion satisfies this requirement.
Undue Delay or Prejudice
Finally, the court must determine if intervention will cause undue delay or create an
inequitable position amongst the parties. Merch. Mart of South Carolina, 61 F.R.D. at 688.
Senator Elliott claims a direct interest in the subject matter of the action and therefore seeks to
intervene to allow him to fully participate in the case. He contends that he must be made a party
to the action because otherwise District 28 will not be challenged, despite being affected by
Defendants’ race-based violation of both § 2 of the VRA and Equal Protection. The Court finds
that allowing intervention will most likely result in avoiding future litigation and increased
Senator Elliott has filed a timely motion to intervene and shown that he has questions of
fact in common with the underlying action, and the Court believes that intervention will not
unduly delay or prejudice either party. Accordingly, Senator Elliott’s intervention is proper.
However, the Court is mindful of the intense timing constraints in this case and therefore
imposes a condition on the intervention: (1) Senator Elliott must comply with the existing
Scheduling Order—no extensions will be granted. The purpose of this condition is to ensure that
Senator Elliott’s presence in the case will not unduly delay or compromise the interests of any
For the foregoing reasons, it is hereby ORDERED, that Senator Elliott’s Motion to
Intervene pursuant to Rule 24(b) is hereby GRANTED.
AND IT IS SO ORDERED.
Charleston, South Carolina
February 8, 2012