Cawthorn v. Circosta

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

Case No. 5:22-cv-00050-M

MADISON CAWTHORN, )

)

Plaintiff, )

)

Vv. ) ORDER

)

DAMON CIRCOSTA, in his official capacity _)

as Chair of the North Carolina State Board of )

Elections, )

STELLA ANDERSON, in her official capacity )

as a member of the North Carolina State Board )

of Elections, )

JEFF CARMON, in his official capacity as a

member of the North Carolina State Board of )

Elections, )

STACY EGGERSIV, in his official capacity as )

a member of the North Carolina State Board of )

Elections, )

TOMMY TUCKER, in his official capacity as )

a member of the North Carolina State Board of

Elections, )

KAREN BRINSON BELL, in her official )

capacity as the Executive Director of the North )

Carolina State Board of Elections, )

)

Defendants. )

This matter comes before the court on the Motion to Intervene filed by a number of individuals

who have challenged Plaintiff's candidacy for office in North Carolina’s 13" congressional district

pursuant to N.C. Gen. Stat. § 163-127.2 [DE 27].

Rule 24 of the Federal Rules of Civil Procedure provides two avenues for intervention—one

mandatory and the other at the district court’s discretion. N. Carolina State Conf. of NAACP v. Berger,

999 F.3d 915, 927 (4th Cir. 2021), cert. granted sub nom. Berger v. N. Carolina State Conf. of the

NAACP, No. 21-248, 2021 WL 5498793 (U.S. Nov. 24, 2021).! The movants seek to intervene as a

matter of right under Rule 24(a)(2) and, alternatively, with the court’s permission under Rule 24(b). The

court addresses each basis for intervention in turn.

I. Intervention as a Matter of Right

Rule 24(a)(2) provides for intervention as a matter of right if the would-be intervenors file a

timely motion establishing “(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.” Berger, 999 F.3d at 927 (quoting Stuart v. Huff, 706

F.3d 345, 349 (4th Cir. 2013)). Failure to establish any one requirement precludes intervention as a

matter of nght. Berger, 999 F.3d at 927 (citing Virginia v. Westinghouse Elec. Corp., 542 F.2d 214, 216

(4th Cir. 1976)).

Here, the movants’ demonstration of the third requirement must overcome a heightened

presumption of adequate representation by the Defendants. First, a presumption of adequate

representation attaches whenever “the party seeking intervention has the same ultimate objective as a

party to the suit.” Berger, 999 F.3d at 930. That shared objective distinguishes the default rule set by

the Supreme Court in 7rbovich v. United Mine Workers and implicates this more specific standard. See

Berger, 999 F.3d at 931 (citing 404 U.S. 528, 538 n.10 (1972)) (noting support across the circuits for

this distinction). Under this context-specific approach to Rule 24, the Fourth Circuit applies

presumptions of adequacy to constitutional challenges to state statutes where existing defendants already

! The Supreme Court granted certiorari on three questions, none of which appear to be directly applicable

to intervention by private parties like the movants. See Philip E. BERGER, et al., Petitioners, v. NORTH

CAROLINA STATE CONFERENCE OF THE NAACP, et al., Respondents., 2021 WL 3741675 (U.S.)

(presenting one question about the standard of review and two questions about intervention by state

agents authorized by state law to represent the state’s interests).

seek to uphold their validity. See Berger, 999 F.3d at 931 (addressing efforts by legislators to intervene

where a voter identification law was being defended by the Attorney General and State Board of

Elections); Stuart, 706 F.3d at 352 (addressing efforts by pro-life advocates to intervene where the

Attorney General was defending a state statute regulating abortion providers). An existing party’s

distinct institutional interests do not defeat this presumption so long as they align with the ultimate goal

of defending the statute. See Berger, 999 F.3d at 931-32 (rejecting arguments that the State Board of

Elections’ unique interest in election administration defeated the presumption of adequacy).

Second, a heightened presumption of adequacy applies when would-be intervenors share the

same ultimate objectives as a government defendant. Berger, 999 F.3d at 932 (quoting Stuart, 706 F.3d

at 351) (explaining why a “more exacting showing of inadequacy should be required” when a

government actor already represents the interests). Government entities are uniquely well-positioned to

defend duly enacted state statutes from constitutional challenges. See Stuart, 706 F.3d at 351 (describing

the state as the “most natural party” to protect the public’s interests). Moreover, permitting private

persons to intervene on nominal showings would impair the government’s ability to do so. See Stuart,

706 F.3d at 351 (cautioning that “the government could be compelled to modify its litigation strategy to

suit the self-interested motivations of those who seek party status, or else suffer the consequences of a

geometrically protracted, costly, and complicated litigation.”).

Would-be intervenors can overcome this heightened presumption by showing “adversity of

interest, collusion, or malfeasance—but not by mere ‘disagreement over how to approach the conduct of

the litigation’ in question.” Berger, 999 F.3d at 930 (quoting Stuart, 706 F.3d 353). Adversity does not

arise any time would-be intervenors assert stronger, more specific interests. See Stuart, 706 F.3d at 353

(reasoning that those seeking party status “will nearly always have intense desires that are more

particular than the state’s”). Nor can courts infer adversity or nonfeasance from an existing party

pursuing the same objective using different litigation tactics or legal theories than those preferred by the

would-be intervenors. See Stuart, 706 F.3d at 353-54 (rejecting assertions of adversity based on the

Attorney General’s reliance on legal—rather than factual arguments—and decision not to appeal a

preliminary injunction).

In this case, the movants fail to overcome the strong presumption of adequate representation by

Defendants. Undoubtedly, the movants and Defendants share the same ultimate objective in this case:

to obtain a court order rejecting the Plaintiff's claims and upholding the constitutionality of the

challenged statute. See Stuart, 706 F.3d at 349 (upholding the lower court’s finding of a presumption

“because the appellants and the existing defendants share ‘precisely the same goal: to uphold the Act as

constitutionally permissible.’”). Movants’ arguments to the contrary conflate their challenge to

Plaintiffs’ qualifications before the State Board of Elections with this litigation. While the union member

in Trbovich had a right to intervene in the enforcement suit adjudicating the merits of his complaint, 404

U.S. at 538-39, the movants here—like the would-be intervenors in Stuart and Berger—can only hope

to mount their own defense of a challenged statute, see 999 F.3d at 931; 706 F.3d at 352. Moreover, like

the legislative leaders in Berger, the movants do not show that the state Defendants’ distinct institutional

interests compromise their defense of this statute. See 999 F.3d at 932 (finding that other objectives

related to elections administration did not defeat the presumption of adequate representation by the Board

of Elections). Rather, the Board’s interest in administering the challenge process, [DE 54 at 4], appears

entirely consistent with defending its authority to hear such challenges. Indeed, the state Defendants are

particularly well-positioned to defend the challenge statute, one they claim they have enforced several

times. Resp., DE 45 at 5 (“In the fifteen years since the enactment of the candidate challenge statutes,

the State Board has considered and ruled upon numerous challenges, typically in the form of appeals

from the initial hearing panel. In the past four years alone, the State Board has decided 12 candidate

challenge appeals, involving all types of races, including candidates for the judiciary, state legislature,

sheriffs, and county and municipal offices.”’).

Finally, the movants make no showing of “adversity of interest, collusion, or malfeasance”;

instead, their proposed response to the motion for preliminary injunction demonstrates the movants’

alignment with the Defendants’ position in this case by also arguing that the court lacks jurisdiction

based on the ripeness and abstention doctrines and that Plaintiff fails to demonstrate a likelihood of

success on the merits of his First Amendment and Fourteenth Amendment claims, and the movants

likewise contend that the Qualifications Clause does not conflict with the challenge statute and that the

1872 Amnesty Act applied at one time and not to future “insurrectionists.””» Compare Resp., DE 45 and

Prop. Resp., DE 27-1. The court finds the movants have failed to demonstrate an inadequacy of

Defendants’ representation of their interests and, therefore, they have failed to establish intervention as

of right.

Il. Permissive Intervention

Rule 24(b)(1)(B) allows district courts to permit intervention by applicants whose claims or

defenses share common questions of law or fact with the main action. That said, courts “must consider

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

Fed. R. Civ. P. 24(b)(3); see also Berger, 999 F.3d at 939 (describing these as “the only” factors that

must be weighed). When an existing defendant already seeks the same objective, courts can conclude

that intervention would introduce unnecessary delays and complications “without a corresponding

benefit to existing litigants, the court, or the process.” See Stuart, 706 F.3d at 355 (affirming a denial of

permissive intervention based on these findings). These factual conclusions about unnecessary

complications and delay go directly to the district court’s trial management prerogatives. Berger, 999

F.3d at 939.

Here, the movants and the Defendants’ interests in seeking an order denying the motion for

preliminary injunction are the same. The movants’ response brief adds little to nothing to the court’s

consideration of the Plaintiff's request for preliminary injunctive relief. The court finds that the movants’

proposed intervention to permit the court’s consideration of their response not only is unnecessary, but

also would delay this matter since the briefing on the motion by the parties is now complete.

The court concludes that, considering the parties in their current posture and recognizing that

such posture could change, the motion to intervene is DENIED WITHOUT PREJUDICE.

SO ORDERED this ais day of February, 2022.

RICHARD E. MYERS IT

CHIEF UNITED STATES DISTRICT JUDGE