The NCSL Blog


By Lisa Soronen

In Berger v. North Carolina State Conference of the NAACP, the U.S. Supreme Court will decide whether the North Carolina legislature has a right to intervene in a lawsuit to defend North Carolina’s voter ID law when the North Carolina attorney general is already defending the law.

Supreme CourtIn December of 2018, North Carolina adopted a new voter ID law. The North Carolina NAACP sued members of the state elections board in federal court, claiming the law discriminates against Black and Latino votes in violation of Section 2 of the Voting Rights Act. The North Carolina attorney general represents state elections board members in the litigation.

The president pro tempore of the North Carolina Senate and the speaker of the North Carolina House of Representatives (petitioners) sought to intervene in this lawsuit on behalf of the North Carolina General Assembly. They point out that a North Carolina statute 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.”

Federal Rule of Civil Procedure 24 allows intervention as a matter of right where, among other factors, a potential intervenor’s interest is not adequately represented by the existing parties.

The 4th Circuit applies a presumption of adequate representation when “the party seeking intervention has the same ultimate objective as a party to the suit.” The 4th Circuit concluded that the district court didn’t abuse its discretion in concluding that the attorney general has adequately defended the law.

According to the district court, the attorney general “consistently denied all substantive allegations of unconstitutionality,” moved to dismiss the case on federalism grounds, and recently filed an “expansive brief” opposing on the merits the NAACP’s motion for a preliminary injunction. 

Focusing on the preliminary injunction request, petitioners note the attorney general didn’t hire experts or request the preliminary injunction not be allowed to go into effect after the district court granted it. But in a previous case, the 4th Circuit held that a “disagreement over how to approach the conduct of the litigation, is insufficient to rebut the presumption of adequacy, as evidence of either nonfeasance or adversity of interests.”

In their brief asking the court to decide this case, the petitioners argue a “presumption of adequate representation is inconsistent with the text of Rule 24.”

While petitioners object to the 4th Circuit applying a presumption of adequate representation at all they also object to the 4th Circuit reviewing the district court's application of the presumption using the abuse of discretion standard. According to the petitioners, the 4th Circuit should have applied the presumption de novo (of the new), ignoring the district court reasoning and conclusion. The petitioners note: “As this case demonstrates, the standard of review can have a substantial impact on review of intervention decisions on appeal.”

Finally, the petitioners claim, “[u]nder the proper analytical framework, petitioners are entitled to intervene as of right in this case.” The petitioners reason: “[B]y mandating that an interested party ‘must [be] permit[ted]’ to intervene ‘unless’ its interests are adequately represented, Rule 24(a)(2) places the initial burden on the non-intervening party to affirmatively demonstrate that it adequately represents the intervening party’s interests. [The Elections Board members have] failed to make that showing here, where North Carolina law provides that petitioners ‘shall be necessary parties’ ‘as agents of the State through the General Assembly’ ‘whenever the validity or constitutionality of an act of the General Assembly . . . is the subject of an action in any . . . federal court.’”

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.