UNITED STATES OF AMERICA v. STATE OF NORTH CAROLINA et al

Filing 50

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 2/6/2014. For the reasons stated; that the Proposed Intervenors' motion to intervene (Doc. 26 ) is DENIED. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

UNITED STATES OF AMERICA,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
THE STATE OF NORTH CAROLINA,
et al.,
Defendants.

1:13CV861

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This
Justice

case

brought

(“United

by

the

States”)

is

United
one

of

States
several

Department
related

of

cases

involving challenges to recent amendments to North Carolina’s
election laws.

Before the court is a motion by Judicial Watch,

Inc. (“Judicial Watch”), and Christina Kelley Gallegos-Merrill
(“Gallegos-Merrill,”
Intervenors”)
Rule

of

to

Civil

and

collectively,

intervene
Procedure

as
24.

defendants
(Doc.

the

“Proposed

pursuant
26.)

to

The

Federal
Proposed

Intervenors seek intervention of right pursuant to Rule 24(a)
or, in the alternative, permissive intervention pursuant to Rule
24(b).

The

United

States

opposes

intervention

on

several

grounds (Doc. 38), and the Proposed Intervenors have filed a
reply (Doc. 46).

For the reasons set forth herein, the motion

will be denied without prejudice to the Proposed Intervenors’
right to participate as amici curiae.
I.

BACKGROUND
On August 12, 2013, Governor Patrick L. McCrory signed into

law North Carolina Session Law 2013-381, popularly known as the
Voter Information Verification Act or House Bill 589 (“VIVA” or
“HB

589”).

(Doc.

1

¶

66);

see

2013

N.C.

Sess.

Laws

381,

http://www.ncga.state.nc.us/Sessions/2013/Bills/House/PDF/H589v9
.pdf.

The law enacted several changes to the State’s election

laws.

On the same day, two separate organizations along with

several individual plaintiffs filed complaints challenging the
validity of the law pursuant to the Fourteenth and Fifteenth
Amendments to the United States Constitution and Section 2 of
the Voting Rights Act of 1965 (“VRA”), 42 U.S.C. § 1973(a).

See

League of Women Voters of N.C. v. McCrory, 1:13CV660 (M.D.N.C.
filed Aug. 12, 2013); N.C. State Conference of the NAACP v.
McCrory, 1:13CV658 (M.D.N.C. filed Aug. 12, 2013).
On September 30, 2013, the United States filed the abovecaptioned

case

against

the

State

of

North

Carolina

and

Kim

Westbrook Strach, in her official capacity as Executive Director
of

the

“State

North

Carolina

Defendants”).

Board
(Doc.

of
1.)

Elections
The

(collectively

complaint

alleges

the
that

several provisions of HB 589, including the reduction of the
early

voting

period

(id.

¶¶

24–34),
2

elimination

of

same-day

registration

(id.

¶¶

35–38),

elimination

of

out-of-precinct

provisional ballots (id. ¶¶ 39–42), and the requirement that
voters present a valid photo identification in order to cast a
vote (id. ¶¶ 43–50), violate Section 2 of the VRA.

The United

States

challenged

alleges

provisions
voters

(id.

both

will

have

¶¶

discriminatory

that
a

68–79)
purpose

enforcement

disparate
and

that

(id.

¶¶

of
on

impact
HB

589

the

African-American

was

with

a

In

80–92).

enacted
addition

to

an

injunction and declaratory judgment pursuant to Section 2, the
United States seeks two additional remedies.
order

authorizing

federal

officials

to

First, it seeks an

observe

elections

in

North Carolina pursuant to Section 3(a) of the VRA, 42 U.S.C.
§ 1973a(a).

Second,

it

requests

an

order

subjecting

North

Carolina to a “preclearance” requirement under Section 3(c) of
the VRA, 42 U.S.C. § 1973a(c).
The Proposed Intervenors filed their motion to intervene as
defendants on December 10, 2013, along with a proposed answer
pursuant

to

Intervenors

Rule

24(c).

(Docs.

also

submitted

a

26,

26–1.)

declaration.

Both

Proposed

Judicial

Watch

submitted the declaration of Thomas J. Fitton, the president of
Judicial Watch since 1998.
the

organization

as

one

(Doc. 26–3 ¶ 2.)
that

“seeks

to

Fitton describes

promote

integrity,

transparency, and accountability in government and fidelity to
the rule of law.”

(Id.)

Judicial Watch has at least 7,260
3

active members in North Carolina, of whom 143 are registered
voters who have actively expressed an interest in intervening in
this

case.

(Id.

¶

18.)

Judicial

Watch

believes

that

the

reforms contained in HB 589 are necessary to curb election fraud
and

that

“degrade

the
the

United

States’

integrity

and

success

accuracy

of

in

this

voter

action

would

rolls.”

(Id.

¶ 11.)
Gallegos-Merrill was a Republican candidate in District 2
for the Buncombe County (North Carolina) Board of Commission in
2012.

(Doc. 26–2 ¶ 3.)

regime,

some

students

She states that, under the pre-HB 589
from

Warren

Wilson

College

(“WWC”)

in

Asheville, North Carolina, were permitted to vote in District 2
rather than District 1 in the 2012 elections, ultimately causing
her defeat.

(Id. ¶¶ 11–13.)

According to Gallegos-Merrill,

Newsweek has declared WWC one of the most liberal colleges in
the nation.

(Id. ¶ 4.)

The students had originally registered

to vote using WWC’s main address, which was located in District
1,

although

District 2.

some

dormitories

(Id. ¶¶ 7–8.)

on

WWC’s

campus

are

located

in

However, following a reapportionment

by the Buncombe County Board of Elections (the “Board”), some
WWC students’ votes were counted in District 2.

(Id. ¶ 11.)

Although

the

Gallegos-Merrill

was

originally

declared

winner,

following the canvass it was determined that she had lost by 13
votes.

(Id. ¶ 13.)

Her appeal to the Board was denied.
4

(Id.

¶ 15.)

She plans to run again for the same office in 2014 and

believes that she would suffer similar harm in the next election
without the provisions of HB 589.

(Id. ¶¶ 16, 19–20.)

The United States opposes intervention on several grounds:
it contends that the Proposed Intervenors have not demonstrated
a protectable interest that would be impaired by the action,
that they have not demonstrated that the State Defendants would
not adequately represent such interest in any event, and that
they seek to pursue matters that are irrelevant and collateral
to

this

litigation.

(Doc.

38.)

According

to

the

Proposed

Intervenors, the State Defendants do not oppose their motion.
(Doc. 26 at 1.)
II.

ANALYSIS
The Proposed Intervenors seek to intervene as defendants in

this case pursuant to Federal Rule of Civil Procedure 24(a) and
(b).

Each basis will be addressed in turn.
A.

Intervention of Right

“Under

Rule

24(a)(2),

a

district

court

must

permit

intervention as a matter of right if the movant can 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.’”

Stuart v.

Huff,

Teague

706

F.3d

345,

349

(4th

Cir.
5

2013)

(quoting

v.

Bakker, 931 F.2d 259, 260–61 (4th Cir. 1991)).

The Proposed

Intervenors and the United States devote a significant portion
of the briefing on this motion to the issue of whether the
Proposed Intervenors possess a sufficient protectable interest.
However, the court will not reach the first two factors because
it concludes that, assuming (without deciding) they have been
met,

the

Proposed

interests

will

Intervenors

not

be

fail

adequately

to

demonstrate

represented

that

by

the

such
State

Defendants.
When

a

State

statute

is

challenged

and

a

proposed

intervenor shares a common objective with the State to defend
the validity of the statute, the proposed intervenor “must mount
a strong showing of inadequacy” to be entitled to intervention
of right.
Fourth

Stuart, 706 F.3d at 352.

Circuit

has

explained,

This is so because, as the

“when

a

statute

comes

under

attack, it is difficult to conceive of an entity better situated
to defend it than the government.”
presumption
either

of

adequacy,

collusion

interests

between

between

Id. at 351.

To rebut the

the

Proposed

Intervenors

the

existing

parties,

and

State

themselves

the

must

show

adversity

of

Defendants,

or

nonfeasance on the part of the State Defendants.

See id. at

350, 352–55.
The Proposed Intervenors argue that the State Defendants
will

not

adequately

represent
6

their

interests

for

three

principal reasons.

First, the Proposed Intervenors argue that

only they will insist that a causal link be shown between the
challenged

provisions

of

HB

589

and

the

alleged

disparate

impact, pointing to the fact that the State Defendants have not
raised a “lack of causation” defense in their answers to the
complaint.

(Doc. 27 at 14–17.)

Defendants

will

not

Next, they claim that the State

adequately

represent

their

interest

in

making public records requests, and specifically that, “[i]f the
United

States

becomes

involved

in

approving

North

Carolina’s

voting laws and procedures, it will complicate the process of
obtaining

documents

cooperate.”

and

make

(Id. at 17.)

the

State

less

willing

to

Finally, the Proposed Intervenors

contend that the State Defendants will not adequately represent
their

interest

in

maintaining

the

accuracy

of

voter

rolls.

Particularly, they wish to “show that the potential for various
kinds of electoral fraud is greater where registration lists are
made less accurate by same-day registration during early voting,
out-of-precinct voting, or the absence of photo ID.”

(Id. at 18

(citing Doc. 26–3 ¶¶ 11–12).)
None

of

these

contentions

is

sufficient

to

rebut

the

presumption that the State Defendants will adequately represent
the Proposed Intervenors’ interests.

First, it is undisputed

that the Proposed Intervenors and the State Defendants both seek
to uphold HB 589.

While the Proposed Intervenors may have a
7

particularized
statute,

interest

“stronger,

interests

make.”

and

more

fervent

Stuart,

706

to

protect

interests

specific

desire

do

not

F.3d

at

353.

As

the

the

adverse
Fourth

Circuit explained, “would-be intervenors will nearly always have
intense desires that are more particular than the state’s (or
else why seek party status at all).

Allowing such interests to

rebut the presumption of adequacy would simply open the door to
a

complicating

host

of

corresponding benefit.”

intervening

parties

with

hardly

a

Id.

Nor can the Proposed Intervenors’ intention to emphasize
certain

legal

arguments

at

the

expense

adversity of interests or malfeasance.

of

others

create

“[D]isagreement over how

to approach the conduct of the litigation is not enough to rebut
the presumption of adequacy.”

Id. (citing Perry v. Proposition

8 Official Proponents, 587 F.3d 947, 954 (9th Cir. 2009) (“Mere
differences in litigation strategy are not enough to justify
intervention as a matter of right.”)).

In any event, there is

no evidence at this early stage of the litigation that the State
Defendants
argument

will

not

regarding

pursue

the

causation.

Proposed
The

Intervenors’

fact

that

the

chosen
State

Defendants did not raise the lack-of-causation defense in their
answers does not foreclose them from arguing the point in the
merits

briefing,

particularly

when

8

a

lack

of

causation

is

generally not regarded to be an affirmative defense that must be
pleaded separately.
The

Proposed

See Fed. R. Civ. P. 8(c). 1
Intervenors’

other

two

interests

are

also

sufficiently aligned with those of the State Defendants.

The

Proposed Intervenors allege that the State will be less willing
or able to comply with its public records request should it be
subject to a “preclearance” requirement.

But the State has, of

course, a great incentive to litigate vigorously to avoid being
subject to such federal supervision.
Intervenors’

and

the

State

Similarly, the Proposed

Defendants’

interests

are

aligned

with respect to the Proposed Intervenors’ desire to introduce
evidence about voter fraud under the pre-HB 589 regime.

Both

seek to defend the statute on the ground it will reduce election
fraud.

Thus,

there

are

no

grounds

to

conclude

that

the

interests of the State Defendants and the Proposed Intervenors
are adverse to one another.
The posture of this case is remarkably similar to that of
Stuart.
requiring

There, the plaintiffs challenged a North Carolina law
certain

informed

consent

1

procedures

prior

to

the

The Proposed Intervenors highlight their concern by pointing to the
complaint’s allegation that North Carolina Attorney General Roy Cooper
openly opposed and criticized HB 589 before Governor McCrory signed
it.
(See Doc. 1 ¶ 67.)
However, the Proposed Intervenors have not
demonstrated that the Attorney General will not fulfill his obligation
to aggressively defend laws duly enacted by the General Assembly.
Moreover, the docket reflects that the Attorney General has retained
outside co-counsel for the State Defendants and that the Governor has
retained separate counsel.

9

performance of an abortion.

Stuart, 706 F.3d at 347; see N.C.

Gen. Stat. § 90–21.80, et seq.

A group of pro-life physicians

and others sought to intervene as defendants, seeking to uphold
the statute.

Stuart, 706 F.3d at 347.

The Fourth Circuit

affirmed the district court’s denial of intervention of right on
the ground that the would-be intervenors failed to rebut the
presumption

that

the

State,

which

defended

the

statute

vigorously, did not adequately represent their interests.
at

355.

position.

The

Proposed

Intervenors

here

are

in

an

Id.

identical

They possess an interest in the outcome of this case,

but not all parties with strong feelings about or an interest in
a case are entitled, as a matter of law, to intervene.

Because

the Proposed Intervenors cannot rebut the presumption that their
interests are adequately represented by the State Defendants,
their motion for intervention of right will be denied.
B.

Permissive Intervention

The Proposed Intervenors also seek permissive intervention
under Rule 24(b).

The court may permit anyone who “has a claim

or defense that shares with the main action a common question of
law or fact” to intervene on timely motion.
24(b)(1)(B).

“In

exercising

its

discretion,

Fed. R. Civ. P.
the

court

must

consider whether the intervention will unduly delay or prejudice
the adjudication of the original parties’ rights.”

10

Fed. R. Civ.

P. 24(b)(3); see Bussian v. DaimlerChrysler Corp., 411 F. Supp.
2d 614, 631 (M.D.N.C. 2006).
In Stuart, the Fourth Circuit also affirmed the district
court’s denial of permissive intervention.

706 F.3d at 355.

The court explained that adding the intervenors would complicate
discovery

in

the

case

and

result

in

possible

accruing any benefit to the existing parties.
also

noted

that

the

would-be

intervenors

delay
Id.

were

without

The court
not

without

recourse, because they could seek leave to file an amicus curiae
brief both in the district court and in the Fourth Circuit.

Id.

Similarly, the United States does not object in this case to the
Proposed Intervenors’ participation as amici.

(Doc. 38 at 19–

20.)
The

court

participation
parties

concludes

of

would

the

that,

Proposed

consume

on

the

record

Intervenors

additional

and

as

before

two

it,

additional

unnecessary

judicial

resources, further complicate the discovery process, potentially
unduly delay the adjudication of the case on the merits, and
generate little, if any, corresponding benefit to the existing
parties.

See Brock v. McGee Bros. Co., 111 F.R.D. 484, 487

(W.D.N.C. 1986) (denying permissive intervention where interests
were

adequately

represented

and

intervention

would

increase the cost and delay disposition of the case).
particularly

so

given

Judicial
11

Watch’s

professed

needlessly
This is

interest

in

using the litigation as a vehicle to enhance its ability to
collect

records

Therefore,

the

from

the

motion

parties.

for

(See

permissive

Doc.

27

intervention

at

11.)

will

be

denied. 2
While intervention is denied, the court recognizes that the
Proposed

Intervenors

may

bring

expertise to the litigation.
they

have

a

unique

a

useful

perspective

and

In the event they conclude that

contention

to

make,

or

that

the

State

Defendants have not raised an appropriate argument, they may
follow the procedure set out in Local Rule 7.5 and this court’s
case scheduling order (Doc. 30) and file a motion for leave to
file an amicus brief along with a brief and a proposed order.
III. CONCLUSION
For the reasons stated,
IT

IS

THEREFORE

ORDERED

that

the

Proposed

Intervenors’

motion to intervene (Doc. 26) is DENIED.
/s/
Thomas D. Schroeder
United States District Judge
February 6, 2014
2

The court’s decision on this point is not inconsistent with its prior
ruling granting several individuals leave to intervene as plaintiffs
in League of Women Voters.
(See Doc. 62 in case 1:13CV660 at 6–8.)
There, additional discovery could not be avoided because the
intervenors could have simply brought their own case had they been
denied intervention. (Id. at 7.) In addition, they raised claims not
brought by the original plaintiffs. (Id. at 8.) Here, the addition
of defendants will increase the already heavy burden created by
discovery in these cases with little, if any, corresponding benefit to
the existing parties. Any benefit that the Proposed Intervenors could
bring
to
the
litigation
may
be
achieved
as
amici,
without
necessitating further discovery.

12