# NORTH CAROLINA STATE CONFERENCE OF THE NAACP v. COOPER

> District Court, M.D. North Carolina · August 17, 2021

URL: https://www.frixlaw.com/law-library/cases/10253814

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 17, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

NORTH CAROLINA STATE CONFERENCE )
OF THE NAACP, et al., )
)
Plaintiffs, )
)
v. ) 1:18CV1034
)
ROY ASBERRY COOPER III, in his official capacity )
as the Governor of North Carolina, et al., )
)
Defendants, )
)
and )
)
VOTER INTEGRITY PROJECT NC, INC., )
)
Proposed Defendant-Intervenor. )

MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
Before the Court is a Motion to Intervene filed by Voter Integrity Project NC, Inc.
(“VIP”). (ECF No. 133.) VIP is a nonprofit organization that recruits, educates, and trains
individuals to serve as election observers. (ECF No. 134 at 8, 9.) The organization seeks to
intervene as a defendant in this litigation to “raise affirmative defenses that have not been
raised by State Defendants.” (ECF No. 147 at 5.) Both Plaintiffs and Defendants oppose the
motion. (ECF Nos. 137, 141.) For the reasons that follow, the Court denies VIP’s motion as
untimely.
VIP filed the present Motion to Intervene on March 26, 2020, approximately fifteen
months after the suit was first filed.1 (ECF Nos. 133, 134.) In the months since this suit was
filed on December 20, 2018, significant litigation has taken place to include the following:

 On January 14, 2019, Philip E. Berger, in his official capacity as President Pro
Tempore of the North Carolina Senate, and Timothy K. Moore, in his official
capacity as Speaker of the North Carolina House of Representatives (together,
“Legislative Intervenors”), filed a Motion to Intervene on behalf of the North
Carolina General Assembly. (ECF Nos. 7, 8.) The Court denied their motion.
(ECF No. 56.)

 On February 28, 2019, Governor Cooper and the Board Defendants each filed
Motions to Dismiss for Failure to State a Claim. (ECF Nos. 42, 44.) The Court
denied the Board Defendants’ motion but granted Governor Cooper’s, and
Governor Cooper was dismissed from this case. (ECF No. 57.)

 On July 19, 2019, Legislative Intervenors filed a Renewed Motion to Intervene,
(ECF Nos. 60, 61), which was denied by the Court, (ECF No. 100). Legislative
Intervenors appealed this ruling, and the appeal was pending when VIP filed
its motion. (ECF No. 103.) The Fourth Circuit has since upheld the denial.
N.C. State Conf. of NAACP v. Berger, 999 F.3d 915, 918 (4th Cir. 2021).

 On September 17, 2019, Plaintiffs filed a Motion for Preliminary Injunction.
(ECF No. 72.) The Court granted in part and denied in part the motion after
a hearing. (ECF No. 120.) The Court permanently enjoined partial
enforcement of S.B. 824 but did not enjoin expansion of the number of poll
observers. (Id. at 58.) Board Defendants appealed the Order to the Fourth
Circuit, and that appeal was pending at the time VIP filed its motion. (ECF
No. 123.)

 On September 23, 2019, the parties filed a Joint Report pursuant to Fed. R.
Civ. P. 26(f), setting a proposed discovery and trial schedule. (ECF No. 77.)
The parties filed a Joint Status Report on November 20. (ECF No. 112.)

 On February 20, 2020, the Court scheduled a Bench Trial for January 4, 2021.
(ECF No. 130.) The trial has since been continued to January 3, 2022. (ECF
No. 158.)

1 In compliance with Rule 24 of the Federal Rules of Civil Procedure, VIP attached a proposed Answer to the
Motion to Intervene. (ECF No. 133-1); see Fed. R. Civ. P. 24(c) (“The motion [to intervene] must . . . be
accompanied by a pleading that sets out the claim or defense for which intervention is sought.”).
DISCUSSION
A Motion for Intervention of Right or Motion for Permissive Intervention can only be
granted if timely. Fed. R. Civ. P. 24(a), (b)(1); NAACP v. New York, 413 U.S. 345, 365 (1973)

(“If it is untimely, intervention must be denied.”). Courts are “accorded broad discretion” in
assessing timeliness “after assessing all the relevant circumstances,” Scott v. Bond, 734 Fed.
App’x 188, 191 (4th Cir. 2018) (citing New York, 413 U.S. at 366), and such a ruling “will not
be disturbed on appeal unless this discretion is abused,” Gould v. Alleco, Inc., 883 F.2d 281, 286
(4th Cir. 1989). Courts assess all relevant circumstances in assessing the timeliness of a motion
to intervene, with a focus on three principal factors: (1) “how far the suit has progressed” (2)

“the prejudice which delay might cause other parties,” and (3) “the reason for the tardiness in
moving to intervene.” Id. The Court finds that all three factors weigh against a finding of
timeliness.
A. The suit has progressed through extensive litigation and reached an
advanced stage

A motion to intervene may be tardy if the suit has undergone “extensive litigation,”
Gould, 883 F.2d at 286; or “reached a relatively advanced stage,” Alt v. U.S. Env’t Prot. Agency,
758 F.3d 588, 591 (4th Cir. 2014); see also New York, 413 U.S. at 367. In Alt, a motion was not
timely where it was filed after other motions to intervene had been considered and granted;
motions to dismiss had been briefed, argued, and resolved; the case had been stayed and twice
delayed; and summary judgment briefing had commenced. Alt, 758 F.3d at 591.
When VIP filed the instant motion, the litigation was already in an advance state. As
earlier stated, VIP’s motion was filed after fifteen months of extensive litigation. The parties
and other proposed intervenors had fully litigated motions to intervene, to dismiss, and for
preliminary injunction. In addition, at the time VIP’s motion was filed, a trial date had been
set and the parties had begun preparations. The case has since been continued, and trial is
now scheduled to begin in five months. This factor weighs heavily against finding that VIP’s

motion was timely filed.
B. Granting the motion would prejudice parties by requiring them to
expend extra effort in substantial additional litigation

A late motion to intervene may prejudice parties where it “would likely [require]
substantial additional litigation” if granted. Gould, 883 F.2d at 286. Risk of prejudice is “[t]he
most important consideration in reviewing a motion to intervene.” Scott, 734 Fed. App’x at
191 (citing Hill v. W. Elec. Co., 672 F.2d 381, 386 (4th Cir. 1982)). Intervention may prejudice
parties if it causes them to expend “extra effort.” Alt, 758 F.3d at 591.
Here, VIP proposes to intervene to “raise affirmative defenses that have not been
raised by State Defendants.” (ECF No. 147 at 5.) VIP calls for these new defenses to be
“fully briefed and considered.” (Id.) Plaintiff would be required to expend significant “extra
effort” to fully litigate new defenses at this late stage against dueling defendants. Granting
intervention would also prejudice both parties by adding substantial additional litigation to a
case that is quickly nearing resolution. This factor, too, weighs against a finding of timeliness.
C. VIP’s tardiness is unjustified

A proposed intervenor “must provide a plausible justification for a tardy motion.”
Scott, 734 Fed. App’x at 192. A tardy motion may be justified where the intervenor was
unaware of the suit, or if there had been a “substantial change of circumstances in the case.”
Id. (internal quotations omitted). An intervenor who “closely monitored the proceedings,”
though, cannot justify a delay that was an “informed and tactical choice.” Alt, 758 F.3d at
591–92 (finding “little sympathy” where an intervenor “gambled and lost in the execution of
its litigation strategy”). Thus, tardiness will generally weigh against a finding of timeliness
unless intervenors can show that “intervention at an earlier point would have served no

purpose” or that their tardiness “was a result of prior reliance on one or more of the parties.”
Gould, 883 F.2d at 286; see also, e.g., United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977)
(granting a post-judgment motion to intervene where movants “quickly sought to enter
litigation . . . as soon as it became clear” that their interests would no longer be protected).
Here, VIP does not claim a lack of notice of the proceedings. VIP closely monitored
the proceedings and does not allege prior reliance on one or more of the parties, alleging

instead that Defendants failed to adequately represent their interests from the start. (ECF No.
134 at 6.) VIP argues that they “sought clarity from the various appeals concerning the
Proposed Legislative Intervenors’ attempt to intervene.” (ECF No. 139 at 2.)
This reasoning is unpersuasive because the issues raised by Legislative Intervenors
before this Court and on appeal did not apply to private intervenors like VIP. At the outset
of this litigation, settled Fourth Circuit precedent established that private intervenors

attempting to join a governmental defendant in defending a law’s constitutionality must make
a “strong showing of inadequacy” to rebut the presumption of adequate representation. Stuart
v. Huff, 706 F.3d 345, 352 (4th Cir. 2013). Legislative Intervenors argued before this Court
and on appeal that the Stuart test was inapplicable where the intervenors also represented the
State. Berger, 999 F.3d at 932. VIP does not represent the State and, therefore, would not have
benefitted from clarification of the arguments raised by Legislative Intervenors. Similarly,

Legislative Intervenors’ assertion that the Court inadequately weighed the General Assembly’s
statutory authority to represent the state was inapplicable to VIP. See Brief for Appellants at
30, Berger, 999 F.3d 915 (No. 19-2273), 2019 WL 7584984, at *30. Moreover, VIP’s reasoning
is unpersuasive because VIP did not wait for a ruling from the Fourth Circuit, but instead filed

their motion while Legislative Intervenors’ appeal was still pending. It is unclear why VIP
could intervene two months before the Fourth Circuit issued its opinion in Berger but could
not intervene at the outset of the litigation.
VIP asserts that it chose to “conserve judicial resources in hopes that these appeals
would provide clarity or guidance on any proposed intervention” by VIP. (ECF No. 139 at
2.) If true, as in Alt, VIP “gambled and lost in the execution of its litigation strategy”—an

“informed tactical choice” that does not justify their delay. This factor weighs against finding
timeliness.
* * *
In sum, all three factors weigh against finding that VIP’s motion is timely. Because the
motion is untimely, it will be denied.
For the reasons outlined herein, the Court enters the following:

ORDER
IT IS THEREFORE ORDERED that the Motion to Intervene by Voter Integrity
Project NC, Inc., (ECF No. 133), is DENIED.
This, the 17th day of August 2021.

/s/ Loretta C. Biggs
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253814. Public record. Not legal advice.