Amicus Curiae Brief — Philip E. Berger, et al., Petitioners v. North Carolina State Conference of the NAACP, et al.
Supreme Court briefJan 18, 2022
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NO. 21-248
IN THE
Supreme Court of the United States
PHILIP E. BERGER, et al.,
Petitioners,
v.
NORTH CAROLINA STATE CONFERENCE
OF THE NAACP, et al.,
Respondents.
On Writ of Certiorari to the United States Court
of Appeals for the Fourth Circuit
BRIEF OF LAWYERS DEMOCRACY FUND
AND REPRESENTATIVE RODNEY DAVIS
AS AMICI CURIAE
IN SUPPORT OF PETITIONERS
RICHARD B. RAILE
Counsel of Record
TREVOR M. STANLEY
JENNA M. LORENCE
MICHAEL E. NAGELBERG
BAKER & HOSTETLER LLP
1050 Connecticut Ave., N.W.
Washington, D.C. 20036
(202) 861-1711
rraile@bakerlaw.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ............................... 1
INTRODUCTION AND SUMMARY
OF THE ARGUMENT ......................................... 4
I.
Attorneys General Have With Increasing
Frequency Viewed a Vigorous Defense of
Challenged Laws as Optional ............................. 6
II. North Carolina Has Addressed the Problem of
Suits Among Friends in the Manner This
Court’s Precedent Expressly Approves ............. 18
III. Intervention Doctrine Must Be Construed
Againt the Backdrop of States’ Authority to
Choose Their Representatives in Court ............ 27
CONCLUSION ......................................................... 34
ii
TABLE OF AUTHORITIES
Cases:
Bethune-Hill v. Va. State Bd. of Elections,
137 S. Ct. 788 (2017).......................................... 19
Bethune-Hill v. Va. State Bd. of Elections,
326 F.Supp.3d 128 (E.D. Va. 2018) ............. 19, 21
Brnovich v. Democratic National Comm.,
141 S. Ct. 2321 (2021)........................................ 27
Buquer v. City of Indianapolis,
2013 WL 1332137 (S.D. Ind. Mar. 28, 2013) .... 12
Buquer v. City of Indianapolis,
2013 WL 1332158 (S.D. Ind. Mar. 28, 2013) .... 12
California v. Texas,
141 S. Ct. 2104 (2021)........................................ 11
Carson v. Simon,
978 F.3d 1051 (8th Cir. 2020) ........................... 17
Clerveaux v. E. Ramapo Cent. Sch. Dist.,
984 F.3d 213 (2d Cir. 2021) ............................... 32
Common Cause R.I. v. Gorbea,
970 F.3d 11 (1st Cir. 2020) ................................ 14
Common Cause R.I. v. Gorbea,
2020 WL 4365608 (D.R.I. July 30, 2020) .... 13–14
Ex Parte Young,
209 U.S. 123 (1908)............................................ 26
Gregory v. Ashcroft,
501 U.S. 452 (1991)............................................ 28
iii
Harris v. Ariz. Indep. Redistricting Comm’n,
578 U.S. 253 (2016)............................................ 33
Heckler v. Cheney,
470 U.S. 821 (1985).............................................. 7
Hollingsworth v. Perry,
570 U.S. 693 (2013)................................ 10, 11, 29
League of United Latin Am. Citizens,
Council No. 4434 v. Clements,
999 F.2d 831 (5th Cir. 1993) ............................. 23
League of Women Voters of Mich. v.
Sec’y of State,
948 N.W.2d 70 (Mich. 2020) .............................. 13
League of Women Voters of Mich. v.
Sec’y of State,
959 N.W.2d 1 (Mich. Ct. App. 2020) ................. 13
League of Women Voters of Va. v. Va. State
Bd. of Elections,
458 F.Supp.3d 442 (W.D. Va. 2020) .................. 14
League of Women Voters of Va. v. Va. State
Bd. of Elections,
481 F.Supp.3d 580 (W.D. Va. 2020) ............ 14–15
Merrill v. People First of Ala.,
141 S. Ct. 190 (2020).......................................... 14
Moore v. Circosta,
141 S. Ct. 46 (2020)............................................ 16
Moore v. Circosta,
494 F.Supp.3d 289 (M.D.N.C. 2020) ........... 15–16
N.C. State Conf. of the NAACP v. Berger,
999 F.3d 915 (4th Cir. 2021) ..................... passim
iv
N.C. State Conf. of NAACP v. McCrory,
831 F.3d 204 (4th Cir. 2016) ............................. 27
North Carolina v. N.C. State Conf. of NAACP,
137 S. Ct. 27 (2016)............................................ 27
Obergefell v. Hodges,
576 U.S. 644 (2015)............................................ 10
Pa. Democratic Party v. Boockvar,
238 A.3d 345 (Pa. 2020) ..................................... 16
Planned Parenthood of Cent. N.J. v. Farmer,
220 F.3d 127 (3d Cir. 2000) ............................... 12
Republican Nat’l Comm. v. Common Cause R.I.,
141 S. Ct. 206 (2020).......................................... 14
Republican Party of Pa. v. Boockvar,
208 L. Ed. 2d 266 (Oct. 28, 2020) ...................... 16
Republican Party of Pa. v. Boockvar,
208 L. Ed. 2d 293 (Nov. 6, 2020) ....................... 18
Republican Party of Pa. v. Dagraffenreid,
141 S. Ct. 732 (2021).......................................... 17
Shapiro v. McManus,
577 U.S. 39 (2015).............................................. 10
Thornburg v. Gingles,
478 U.S. 30 (1986).............................................. 32
Town of Chester, N.Y. v. Laroe Ests., Inc.,
137 S. Ct. 1645 (2017)........................................ 16
Trans-High Corp. v. Colorado,
58 F.Supp.3d 1177 (D. Colo. 2013) .............. 11–12
United States v. North Carolina,
180 F.3d 574 (4th Cir. 1999) ............................. 16
v
United States v. Windsor,
570 U.S. 744 (2013)............................................ 11
Va. House of Delegates v. Bethune-Hill,
139 S. Ct. 1945 (2019)................................ passim
Wis. Right To Life, Inc. v. Barland,
751 F.3d 804 (7th Cir. 2014) ............................. 30
Statutes and State Constitutions:
Ariz. Const. art. IV, Pt. 2 § 1(20) ............................. 33
Cal. Gov’t Code. § 12512 ............................................ 7
Fla. Stat. § 16.01 ........................................................ 7
Ind. Code. § 2-3-8-1 ............................................ 24, 29
Mich. Const. art. IV § 6 ............................................ 33
Mich. Ct. R. 7.306 ..................................................... 33
Minn. Stat. § 203B.08 .............................................. 17
N.C. Gen. Stat. § 1-72.2 ................................... passim
N.C. Gen. Stat. § 114-2(2) .................................. 25, 34
N.C. Gen. Stat. § 120-32.6 ............................... passim
N.Y. Exec. Law § 63 ................................................... 7
Other Authorities:
About the State AG Project, American Constitution Society ................................................................. 8
Arizona Sec’y of State Katie Hobbs’s Opposition
to the State of Arizona’s Motion to Intervene,
Democratic Nat’l Comm. v. Hobbs, No. 18-15845
(9th Cir. Mar. 13, 2020) ECF No. 133 ..................... 11
vi
Attorney General’s Opposition to Emergency Motion for Stay Pending Appeal, Perry v.
Schwarzenegger, No. 10-16696, Dkt. 8 (9th Cir.
Aug. 13, 2010)........................................................... 10
Brief of Appellee Michele Reagan in Support of
Appellants, Harris v. Ariz. Indep. Redistricting
Comm’n, 578 U.S. 253 (2016) (No. 14-232) 2015
WL 7713705.............................................................. 33
Brief of the United States as Amicus Curiae in
Support of Neither Party, Bethune Hill v. Va.
State Bd. of Elections, 139 S. Ct. 1945 (2019)
(No. 18-281) .............................................................. 21
Niraj Chokshi, Seven Attorneys General Won’t
Defend Their Own State’s Gay Marriage Bans,
Wash. Post, Feb. 20, 2014 ........................................ 11
Consent Decree, Adeli v. Va. Dep’t of Elections,
No. CL21000438-00 (Va. Cir. Ct. 2021) (Dkt. BL11) ............................................................................. 15
Consent Decree, Goldman v. Va. Dep’t of Elections, No. CL20006468 (Va. Cir. Ct. 2021) .............. 15
Robert G. Dixon Jr., Democratic Representation:
Reapportionment in Law and Politics (1968).... 13, 20
Fed. R. Civ. P. 5.1. ................................................... 32
Fed. R. Civ. P. 19 ..................................................... 26
Lisa F. Grumet, Hidden Nondefense: Partisanship in State Attorneys General Amicus Briefs
and the Need for Transparency, 87 Fordham L.
Rev. 1859 (2019) ......................................................... 8
vii
Eric Holder, U.S. Attorney General, Remarks as
Prepared for Delivery at the National Association of Attorneys General Winter Meeting, U.S.
Dep’t of Justice (Feb. 25, 2014)............................ 9, 10
Margaret H. Lemos & Kevin M. Quinn, Litigating State Interests: Attorneys General As Amici,
90 N.Y.U. L. Rev. 1229 (2015) ................................... 7
Thomas R. Morris, States Before the U.S. Supreme Court: State Attorneys General as Amicus
Curiae, 70 Judicature 298 (1987) .............................. 7
Multistate Amicus Briefs, State Litigation & AG
Activity Database, Dec. 31, 2019 ............................... 8
Robert G. Natelson, The Original Scope of the
Congressional Power to Regulate Elections, 13 U.
Pa. J. Const. L. 1 (Nov. 2010) .................................... 2
N.C. R. of Professional Conduct 1.2 ........................ 26
Paul Nolette, State Attorneys General Have
Taken Off As A Partisan Force in National Politics, Washington Post, Oct. 23, 2017 ......................... 8
Notice of Settlement, Democratic Party of Ga. v.
Raffensperger, No. 1:19-cv-5028 (N.D. Ga. Mar.
6, 2020), ECF No. 56 ................................................ 15
Notice of Voluntary Dismissal, League of Women
Voters of Pa. v. Boockvar, No. 2:20-cv-03850-PBT
(E.D. Pa. Sept. 14, 2020) ECF No. 39 ...................... 15
Or. Att’y Gen. Op. No. OP-6500 (Oct. 15, 1993) ....... 7
Emma Platoff, America’s Weaponized Attorneys
General, The Atlantic, Oct. 28, 2018 ......................... 8
viii
Ranking Member Rodney Davis, U.S. H. of
Reps., Comm. on H. Admin., Report, The Elections Clause: States’ Primary Constitutional Authority Over Elections (117th Cong., Aug. 12,
2021) ........................................................................... 2
Reaching Too Far? The Role of State Attorneys
General, Federalist Society Panel (July 31, 2007) .... 8
Gregory S. Schneider, Democrats Flip Virginia
Senate and House, Taking Control of State Government for the First Time in a Generation,
Wash. Post, Nov. 5, 2019 ......................................... 22
Gregory S. Schneider, Federal Judges Choose
Va. Redistricting Map Favorable to Democrats,
Wash. Post, Jan. 23, 2019 ........................................ 21
Gregory S. Schneider, Va. Gov. Northam Threatens Veto Over GOP Redistricting Plan, Wash.
Post, Oct. 2, 2018...................................................... 22
State Appellees’ Motion to Dismiss, Va. House of
Delegates v. Bethune-Hill,
No. 18-281 (Oct. 9, 2018).......................................... 19
State Appellees’ Response in Opposition, Va.
House of Delegates v. Bethune-Hill, No. 18A629
(Dec. 20, 2018) .......................................................... 20
Transcript of Oral Argument, Bethune Hill v.
Va. State Bd. of Elections, 139 S. Ct. 1945 (2019)
(No. 18-281) .............................................................. 21
Gregory F. Zoeller, Duty to Defend and the Rule
of Law, 90 Ind. L.J. 513 (2015) ..................... 7, 12, 24
1
INTEREST OF AMICI CURIAE 1
Lawyers Democracy Fund (LDF) is a non-profit organization established to promote the role of ethics,
integrity, and legal professionalism in the electoral
process. To accomplish this, LDF primarily conducts,
funds, and publishes research and in-depth analysis
regarding the effectiveness of current and proposed
election methods, particularly those that fail to receive adequate coverage in the national media. Robust defense of reasonable, validly-enacted election
laws is essential to achieve these goals. As part of its
mission, LDF is a resource for lawyers, journalists,
policy-makers, courts, and others interested in elections.
The effort by a state legislature to intervene in a
lawsuit to defend a reasonable election law it enacted
is profoundly important. Not only is the legislature
entitled to defend its election law enactments, and the
public it represents has an interest, as a matter of federalism, but federal courts will benefit from hearing
the legislature’s defense. LDF supports efforts to improve judicial review of election laws. For these reasons, LDF has an interest in the North Carolina General Assembly’s intervention in this case.
U.S. Representative Rodney Davis has represented the Thirteenth District of Illinois since 2013
1 No counsel for a party authored this brief in whole or in
part, and no person other than amici and their counsel
made any monetary contribution intended to fund the
preparation or submission of this brief. All parties have
provide written consent to the filing of this brief.
2
and has served since 2019 as Ranking Member of the
U.S. House Committee on House Administration,
which has broad jurisdiction over federal elections.
Ranking Member Davis engages in targeted efforts to
promote voter confidence and faith in elections processes and outcomes, to protect the division of sovereignty between States’ primary constitutional role in
regulating elections and Congress’ secondary, failsafe authority, and to engage with State and local officials and legislators to promote the good-faith enforcement of valid election laws.
States must be able to exercise their constitutional
authority to regulate elections, which requires reasonable confidence that such statutes will be enforced
and defended appropriately by those invested with
that authority under law. When relevant state officers refuse to enforce or defend duly passed election
statutes, the legislature’s authority and ability to fulfill its responsibility under the Elections Clause are
diminished.2 Without state action, Congress might be
2 See, generally, Ranking Member Rodney Davis, U.S. H.
of Reps., Comm. on H. Admin., Report, The Elections
Clause: States’ Primary Constitutional Authority Over
Elections (117th Cong., Aug. 12, 2021), (available at
https://republicans-cha.house.gov/sites/republicans.cha.house.gov/files/documents/Report_The%20Elections%20Clause_States%20Primary%20Constitutional%
20Authority%20over%20Elections%20%28Aug%2011%
202021%29.pdf) (last accessed Jan. 14, 2022) (building on
Prof. Natelson’s excellent work). See Robert G. Natelson,
The Original Scope of the Congressional Power to Regulate
Elections, 13 U. Pa. J. Const. L. 1 (Nov. 2010)).
3
forced to insert itself unnecessarily into the regulation of federal elections, irreparably harming the relationship between the States and the national government. Congress also experiences similar challenges, and without the ability to rely on government
officials to enforce its statutes, Congress’s power is
also diminished. For these reasons, Ranking Member
Davis has an interest in the North Carolina General
Assembly’s intervention in this case.
4
INTRODUCTION AND
SUMMARY OF THE ARGUMENT
The North Carolina statute at issue in this case is
a commonsense solution to an increasingly common
problem: the official charged with defending state law
(typically, the attorney general) sides with the plaintiffs challenging the law, not because a defense would
be frivolous, but because the official believes it would
be good policy to repeal the law. The motives for this
maneuver are often partisan. A state’s attorney general may belong to a different party or ideological faction from the party or faction controlling the legislature that enacted the law. By declining to defend the
law from a challenge brought by likeminded or politically allied plaintiffs, or to appeal an adverse judgment, the attorney general can work around both legislative and judicial processes to achieve an outcome
adverse to the policy choice of the state legislature
and the legal judgment of the courts—sometimes
without doing any work at all. That problem is especially acute in election cases, which are frequently
partisan contests bankrolled by big partisan donors.
According to the en banc majority of the Fourth
Circuit, a state is powerless to thwart such mischief.
Even if the state enacts a law—as North Carolina has
done—designating someone other than (or in addition
to) the attorney general to defend state law, that
someone may still be excluded from the case, under a
Rule 24 presumption that the attorney general’s defense is adequate. And so long as the attorney general
is mounting even a merely pro forma defense of the
law, intervention of the state officials designated by
5
the state may be prohibited, thus empowering the attorney general unilaterally to later abandon that defense or decline to appeal an adverse but vulnerable
judgment or petition this Court for certiorari. It is
that latter scenario that actually occurred in North
Carolina—and in other significant election-law
cases—and created the impetus for the North Carolina General Assembly to establish its officers as necessary parties in challenges to state laws.
The decision below enjoys no support in this
Court’s precedents. They hold that the state is empowered to decide who represents it. If state law clarifies that the attorney general’s representation is inadequate, that view binds the federal courts. In other
words, just as state law—not federal law—has traditionally vested defense authority in state attorneys
general, state law can make a different choice, and
there is no federal basis to countermand the state’s
choice. Because North Carolina determined that its
attorney general is not exclusively entrusted with authority to speak for North Carolina, and has assigned
the legislature, through its legislative leaders (“Petitioners”), the choice of defending the law in court in
the state’s name and on its behalf, this Court’s precedents command the lower federal courts to respect
that decision and permit intervention.
The decision of the court below is erroneous because it applies federal intervention standards under
Rule 24 without reference to that precedent. The
question whether the state’s interest in defending its
own law is adequately represented can only be addressed by reference to the state’s own choice of where
6
adequate representation lies. North Carolina has
plainly spoken to that question, indicating that the
attorney general’s representation is inadequate per se
where the legislative leaders exercise their option to
defend the law. There is no basis for a federal court to
conclude that state officials are adequately defending
the law when the state has designated different officials with that determination.
The Court should clarify these principles and reverse the en banc judgment below.
ARGUMENT
I.
Attorneys General Have With Increasing
Frequency Viewed a Vigorous Defense of
Challenged Laws as Optional
This case is just the most recent of an increasingly
common genre where plaintiffs associated with one
policy or partisan viewpoint sue their friends in a
state attorney general’s office. Then, together, the
parties seek to exclude other litigants who represent
the opposing policy or partisan viewpoint to achieve
an injunction, sometimes by settlement, without litigation on the merits, often against only a lackadaisical defense, or without an appeal. The transparent
purpose of this strategy is to obtain the functional
equivalent of a favorable court ruling outside the judicial process and the functional equivalent of a statutory repeal outside the legislative process. And this
strategy often succeeds.
A. Following the federal model, states have traditionally assigned the role of defending state law
from legal challenges to the state’s attorney general.
7
See, e.g., Cal. Gov’t Code. § 12512 (2001); Fla. Stat.
§ 16.01(4) (2001); N.Y. Exec. Law § 63(1). In that tradition, defense of challenged state law was generally
viewed as a ministerial function under the doctrine
that the attorney general is bound to defend state law
vigorously, unless no colorable defense can be maintained. See Thomas R. Morris, States Before the U.S.
Supreme Court: State Attorneys General as Amicus
Curiae, 70 Judicature 298, 299 (1987); see also Gregory F. Zoeller, Duty to Defend and the Rule of Law, 90
Ind. L.J. 513, 557 n. 77 (2015). The Oregon Attorney
General succinctly summarized this position: “It is
our duty to defend the constitutionality of a statute
unless no argument worthy of the court’s consideration can be made in its behalf.” Or. Att’y Gen. Op. No.
OP-6500 n.3 (Oct. 15, 1993). Accordingly, prior to
1980, “most state AG offices were small, sleepy outposts,” which were “placid and reactive.” Margaret H.
Lemos & Kevin M. Quinn, Litigating State Interests:
Attorneys General As Amici, 90 N.Y.U. L. Rev. 1229,
1268 & n.27 (2015).
But there is generally no legal mechanism to compel attorneys general to enforce or defend laws. See,
e.g., Heckler v. Cheney, 470 U.S. 821 (1985). And, like
many traditions founded in institutional duty, this
model has seen erosion in more recent years. State attorneys general have increasingly viewed themselves
as policymakers, and see their defense (or lack
thereof) of state law as a policy choice to be exercised
like other policy decisions—i.e., on the basis of an attorney general’s partisan, ideological, or public-policy
8
views. 3 Attorneys general have begun “prosecuting
cases and negotiating settlements that have had extraterritorial effects,” Reaching Too Far? The Role of
State Attorneys General, Federalist Society Panel
(July 31, 2007),4 “propos[ing] bills to their state legislature…, submit[ting] comments to federal agencies…, [and] convening task forces to address systemic issues,” About the State AG Project, American
Constitution Society. 5 State attorneys general have
3 This
Court has likely noticed this shift, as increasing
numbers of state attorneys general are filing amicus briefs
taking positions on divisive legal and policy questions. See
Lisa F. Grumet, Hidden Nondefense: Partisanship in State
Attorneys General Amicus Briefs and the Need for Transparency, 87 Fordham L. Rev. 1859, 1863 (2019); see also
Multistate Amicus Briefs, State Litigation & AG Activity
Database, Dec. 31, 2019 (available at https://attorneysgeneral.org/amicus-briefs-u-s-supreme-court/statistics-andvisualizations-multistate-amicus-briefs/) (last accessed
Jan. 17, 2022); see also Paul Nolette, State Attorneys General Have Taken Off As A Partisan Force in National Politics, Washington Post, Oct. 23, 2017 (available at
https://www.washingtonpost.com/news/monkey-cage/wp/
2017/10/23/state-attorneys-general-have-taken-off-as-apartisan-force-in-national-politics/) (last accessed Jan. 17,
2022); Emma Platoff, America’s Weaponized Attorneys
General, The Atlantic, Oct. 28, 2018 (available at
https://www.theatlantic.com/politics/archive/2018/10
/both-republicans-and-democrats-have-weaponized-theirags/574093/) (last accessed Jan. 17, 2022).
Available at https://fedsoc.org/events/reaching-too-farthe-role-of-state-attorneys-general (last accessed Jan. 17,
2022).
4
5 Available at https://www.acslaw.org/projects/state-attor-
neys-general-project/about/ (last accessed Jan. 17, 2022).
9
been urged by their federal counterpart “not merely
to use our legal system to settle disputes and punish
those who have done wrong, but to answer the kinds
of fundamental questions—about fairness and equality—that have always determined who we are and
who we aspire to be, both as a nation and as a people.”
Eric Holder, U.S. Attorney General, Remarks as Prepared at the National Association of Attorneys General Winter Meeting, U.S. Dep’t of Justice (Feb. 25,
2014).6
B. Experience has shown that one effective way
for officials to use their executive power to answer
fundamental questions is to frustrate courts’ ability to
afford different answers or to uphold legislative answers. As a result, an increasingly common fact pattern in constitutional litigation involves an attorney
general’s complete abdication of a challenged state
law, a tepid defense, or else a choice not to appeal
from a potentially vulnerable lower-court ruling.
Perhaps the most prominent example arose in last
decade’s wave of litigation over state marriage laws,
which many state attorneys general declined to defend against federal equal-protection and due-process
claims. They were urged to do so by their federal counterpart, the U.S. Attorney General, who adopted that
approach with respect to the federal Defense of Marriage Act and advised that traditional marriage laws
Available at http://www.justice.gov/iso/opa/ag/speeches
/2014/ag-speech-1402251.html (last accessed Jan. 17,
2022).
6
10
ought to go undefended, not because they lack any colorable defense, but because they are “suspicious.” See
Holder, supra.
In a case that reached this Court, all relevant state
executive officials in California, including its attorney
general, declined to defend a voter-initiated amendment to the California constitution defining marriage
as “between a man and a woman.” Hollingsworth v.
Perry, 570 U.S. 693, 701 (2013). The official proponents of the initiative intervened, and they alone
sought to appeal the adverse district-court ruling. Id.
at 702.
California’s attorney general opposed the intervenors’ motion for a stay pending appeal, contending
that the law “violates” the Constitution. Attorney
General’s Opposition to Emergency Motion for Stay
Pending Appeal, Perry v. Schwarzenegger, No. 1016696, Dkt. 8 (9th Cir. Aug. 13, 2010). But, of course,
this Court had never held as much, and it ultimately
did so only in a 5–4 decision. See generally Obergefell
v. Hodges, 576 U.S. 644 (2015). The legal defense of
marriage laws like California’s, though ultimately
held meritless, was not frivolous. See Shapiro v.
McManus, 577 U.S. 39, 46 (2015) (concluding that “a
legal theory put forward by a Justice of this Court”
cannot be deemed “wholly insubstantial” or “obviously frivolous”). Yet the California attorney general
achieved the defeat of California’s marriage law without a ruling on the merits, simply by abdicating defense of the law, declining to appeal the adverse judgment, and opposing the appeal of the intervenors, who
were found to lack appellate standing in this Court.
11
Hollingsworth, 570 U.S. at 707–15. Executives in at
least seven states, including Pennsylvania, Nevada,
and Virginia, also declined to defend their states’ marriage laws. See Niraj Chokshi, Seven Attorneys General Won’t Defend Their Own State’s Gay Marriage
Bans, Wash. Post, Feb. 20, 2014.7
Meanwhile, in a related case concerning the federal-law definition of marriage, a ruling on the merits
was achieved only because the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives
had intervened in the court below, the U.S. Department of Justice filed a notice of appeal (notwithstanding its contention that the legal challenge was meritorious), and BLAG prosecuted the appeal. See United
States v. Windsor, 570 U.S. 744, 754–63 (2013).
This non-defense strategy is not unusual and not
limited to one political party. See, e.g., California v.
Texas, 141 S. Ct. 2104, 2112 (2021) (ruling 7–2
against challenge to federal law backed in part by the
U.S. Attorney General); Arizona Sec’y of State Katie
Hobbs’s Opposition to the State of Arizona’s Motion to
Intervene, Democratic Nat’l Comm. v. Hobbs, No. 1815845 (9th Cir. Mar. 13, 2020) ECF No. 133 (voting
legislation); Brief of Appellee Michele Reagan in Support of Appellants, Harris v. Ariz. Indep. Redistricting
Comm’n, 578 U.S. 253 (2016) (No. 14-232) 2015 WL
7713705 (Secretary of State argued that challenged
districts violated the constitution); Trans-High Corp.
Available at https://www.washingtonpost.com/blogs/
govbeat/wp/2014/02/20/six-attorneys-general-wont-defend-their-own-states-gay-marriage-bans/ (last accessed
Jan. 17, 2022).
7
12
v. Colorado, 58 F.Supp.3d 1177 (D. Colo. 2013) (entering injunction barring enforcement of marijuana advertising law that attorney general declined to defend); Planned Parenthood of Cent. New Jersey v. Verniero, 41 F.Supp.2d 478, 482 (D.N.J. 1998), aff’d sub
nom. Planned Parenthood of Cent. N.J. v. Farmer,
220 F.3d 127 (3d Cir. 2000) (striking down a partialbirth-abortion ban which the Republican-appointed
attorney general declined to defend).
And abandonment of defense can occur as a matter
of degree and without an explicit advertisement. For
example, in Buquer v. City of Indianapolis, 2013 WL
1332158 (S.D. Ind. Mar. 28, 2013), the attorney general elected to defend the state’s challenged immigration law, but later “announced that the office would
no longer defend [a particular provision] because it
was clearly unconstitutional.” Zoeller, supra, at 544–
45. Nevertheless, the court denied state legislators’
intervention motion because it characterized the attorney general’s abdication as a disagreement of
strategy. Id. at 545 (citing Buquer v. City of Indianapolis, 2013 WL 1332137 at *3 (S.D. Ind. Mar. 28,
2013).
C. This trend of dereliction is especially familiar
in litigation challenging state election laws. These
cases have become forums for resolution of some of the
nation’s most divisive, ideological, and partisan questions. This likely is due to the fact that the two major
parties have arrived at a more or less settled—and divergent—set of views on which election administration mechanisms render the most accurate and trustworthy election results.
13
Accordingly, election lawsuits have seen the frequent abandonment of state laws by state executive
officials—a fact noticed decades ago. See Robert G.
Dixon Jr., Democratic Representation: Reapportionment in Law and Politics 153 (1968) (noting that
abandoning redistricting laws for political reasons
frequently creates “two sets of plaintiffs,” the plaintiff
and the attorney general). This became particularly
common as state attorneys general viewed the Covid19 pandemic as a policy basis to change state election
law for the 2020 elections.
Some attorneys general, like Michigan’s, chose
simply not to defend state election laws challenged as
unconstitutional (under state or federal law) as applied during the pandemic. See League of Women Voters of Mich. v. Sec’y of State, 959 N.W.2d 1, 9 (Mich.
Ct. App. 2020) (observing that the state executive defendants “largely agree[ ] with plaintiffs’ position”);
see also League of Women Voters of Mich. v. Sec’y of
State, 948 N.W.2d 70, 71 (Mich. 2020) (Viviano, J.,
concurring) (observing that the state executives
agreed with plaintiffs’ arguments “nearly from the
start” of the litigation).
Another approach was to arrive at prompt consent
decrees in what is often called “sue and settle” litigation. In Rhode Island, left-of-center advocacy organizations achieved a prompt settlement with the Democratic secretary of state to enjoin the state’s witnesssignature and notarization requirements for absentee
ballots, over the objection of the Republican National
Committee and local Republican Party. Common
Cause R.I. v. Gorbea, 2020 WL 4365608, at *4 (D.R.I.
14
July 30, 2020). That tactic succeeded in thwarting judicial review of what were likely meritless claims. On
appeal in the First Circuit and on application for a
stay in this Court, the dispositive factor against appellate relief was that “state election officials support
the challenged decree, and no state official has expressed opposition.” Republican Nat’l Comm. v. Common Cause R.I., 141 S. Ct. 206, 207 (2020); Common
Cause R.I. v. Gorbea, 970 F.3d 11, 17 (1st Cir. 2020)
(“Indeed, no Rhode Island official has stepped forward
in these proceedings, even as amicus, to tout the need
for the rule. This silence…does fairly support the view
that the rule is not of great import for any particular
regulatory purpose in the eyes of Rhode Island officials and lawmakers”). This was the result, even
though this Court had previously found that the underlying legal theory was unlikely to succeed. See
Merrill v. People First of Ala., 141 S. Ct. 190 (2020)
(granting stay in similar case). The difference between success and failure of such a challenge turned
not on the merits, but on whether the state officials
named as defendants held the challengers’ political
and policy views. See Republican Nat’l Comm., 141 S.
Ct. at 207 (distinguishing Merrill “and similar cases”
on this basis).
A long line of similar decisions followed. See, e.g.,
League of Women Voters of Va. v. Va. State Bd. of Elections, 458 F.Supp.3d 442, 448 (W.D. Va. 2020) (approving consent decree enjoining witness requirement for absentee ballots in the June 2020 primary
election); League of Women Voters of Va. v. Va. State
Bd. of Elections, 481 F.Supp.3d 580, 596 (W.D. Va.
15
2020) (approving consent decree enjoining witness requirement for absentee ballots in the November 2020
general election); Notice of Settlement, Democratic
Party of Ga. v. Raffensperger, No. 1:19-cv-5028 (N.D.
Ga. Mar. 6, 2020), ECF No. 56 (case voluntarily dismissed on settlement compromise of absentee ballot
signature matching, absentee ballot rejection notification, and rejected absentee ballot cure procedures);
see also Notice of Voluntary Dismissal, League of
Women Voters of Pa. v. Boockvar, No. 2:20-cv-03850PBT (E.D. Pa. Sept. 14, 2020) ECF No. 39 (plaintiffs
moved for voluntary dismissal based on approval of
Pennsylvania Secretary Boockvar’s revised guidance,
shortly following their complaint, stating that “the
Pennsylvania Election Code does not authorize the
county board of elections to set aside returned absentee or mail-in ballots based solely on signature analysis by the county board of elections”); Consent Decree,
Goldman v. Va. Dep’t of Elections, No. CL20006468
(Va. Cir. Ct. 2021) (consent decree reducing state ballot petition signature qualifying amount and associated petition signature obtainment requirements);
Consent Decree, Adeli v. Va. Dep’t of Elections, No.
CL21000438-00 (Va. Cir. Ct. 2021) (Dkt. BL-11) (consent decree establishing contactless petition signature procedures to qualify for party primary election).
And it hardly mattered whether a given state’s legislature had already enacted election legislation tailored to the unique challenges the pandemic posed. In
North Carolina, for example, the General Assembly
addressed the pandemic through legislation updating
the state’s election laws. But a challenge followed
nonetheless, as did a “secretly-negotiated” consent
16
judgment in state court. Moore v. Circosta, 494
F.Supp.3d 289, 331 (M.D.N.C. 2020). This executive
settlement choice yet again succeeded, as a subsequent federal suit was unsuccessful. See id.; Moore v.
Circosta, 141 S. Ct. 46 (2020). Pennsylvania saw a
similar lawsuit and a similar result. Pa. Democratic
Party v. Boockvar, 238 A.3d 345, 349 (Pa. 2020); Republican Party of Pa. v. Boockvar, 208 L. Ed. 2d 266
(Oct. 28, 2020).
D. The federal courts, including this Court, have
discerned only the narrowest federal grounds to counteract this cooperation between state officials and
plaintiffs of their own partisan and ideological stripes.
Hollingsworth established that Article III standing
will likely foreclose most persons other than the
state’s designated representative from appealing an
adverse judgment, and intervention doctrine is increasingly construed to incorporate standing doctrine.
Cf. Town of Chester, N.Y. v. Laroe Ests., Inc., 137 S.
Ct. 1645, 1651 (2017).
Where adversity even exists, the state attorney
general remains empowered to enter a consent decree
over the objection of intervenors. Although courts review consent decrees, the standards that have
emerged are “guided by the general principle that settlements are encouraged.” United States v. North Carolina, 180 F.3d 574, 581 (4th Cir. 1999). The question
is whether the settlement is “fair, adequate, and reasonable,” id. (citation omitted), not whether the court
agrees with the legal positions of the plaintiffs and
defendants. That is why many of the above-identified
consent decrees were approved notwithstanding that
17
this Court had found the underlying theories infirm.
Further, although courts assess whether consent decrees are “a product of collusion,” id. (citation omitted), collusion is not necessarily the problem here.
Plaintiffs suing members of their own party, who have
spoken and campaigned on the issues being advanced
in the lawsuit, need not make back-channel communications to the defendants to find common ground in
achieving mutually desirable policy outcomes. Collusion is, in any event, difficult to detect.
During the pandemic-related election litigation,
the sole doctrine that emerged limiting state executive authority to abdicate state law was the Electors
Clause of Article II of the Constitution (and, presumably, the Elections Clause of Article I). See Republican
Party of Pa. v. Dagraffenreid, 141 S. Ct. 732, 734
(2021) (Thomas, J., dissenting from denial of certiorari). In Carson v. Simon, 978 F.3d 1051 (8th Cir.
2020), the Minnesota attorney general reached a consent decree rewriting various state election laws, including a ballot-receipt deadline. Candidates to the
Electoral College challenged this decree under the
Electors Clause, which requires that laws governing
the selection of presidential electors be established by
“the Legislature” of each state, U.S. Const. art. II, sec.
1, cl. 3, and the Eighth Circuit agreed that the consent
decree was likely unconstitutional. Id. at 1059–60. No
matter how “well-intentioned and appropriate from a
policy perspective” the decree might be, the “state executive official” may not “re-write the state’s election
code.” Id. at 1060 (citing Minn. Stat. § 203B.08). This
18
Court issued a similar ruling on an emergency application in Republican Party of Pennsylvania v. Boockvar, 208 L. Ed. 2d 293 (Nov. 6, 2020).
But even that doctrine remains unconfirmed.
Other courts have disagreed with the doctrine Carson
recognized, and this Court denied certiorari in a case
that would have presented that issue. Degraffenreid,
141 S. Ct. at 732. Only after further litigation will the
metes and bounds of that doctrine become clear. And,
beyond the context of federal elections and clear usurpation of legislative power on the part of executive officials, the Electors and Elections Clauses will impose
no limits.
II. North Carolina Has Addressed the Problem
of Suits Among Friends in the Manner This
Court s Precedent Expressly Approves
This Court’s precedent has implicitly facilitated
(without endorsing) attorneys general in abdicating
their defense duty and construed standing doctrine to
forbid other litigants from filling the vacuum. Thus,
with some exceptions, this Court’s precedent signals
that the federal judiciary will not view a state attorney general’s abdication of the defense of state law as
a problem within its purview to correct. But this
Court has not left states powerless to cure this dereliction. Quite the opposite, this Court’s precedent
makes clear that states may pass laws either directing defense of state laws to other functionaries or else
affording alternative defense mechanisms.
A. The leading case is Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019), yet an-
19
other election lawsuit featuring a state attorney general’s yielding a defensible state law up to partisan
allies in the courts and achieving an obvious partisan
outcome.
In that case, Plaintiffs affiliated with the Democratic Party challenged a redistricting plan enacted
by Republicans in the Virginia House of Delegates
and signed by a Republican governor. (In fact, they
filed the suit soon after a new Democratic governor
took office.) The state attorney general took no role in
defending the plan. The House of Delegates hired outside counsel, mounted a robust defense, obtained a
complete victory before a three-judge panel, and defended the law in a subsequent appeal decided in this
Court. See Bethune-Hill v. Va. State Bd. of Elections,
137 S. Ct. 788, 796 (2017) (defining the “State” as the
Virginia House of Delegates). The decision was affirmed in part and remanded. Id. at 802. On remand,
the district court invalidated the districts not affirmed in this Court’s decision, 326 F.Supp.3d 128
(E.D. Va. 2018), and the House appealed. This time,
the Virginia attorney general not only declined to defend the law, but actively opposed the appeal, contending that he alone had authority to appeal and, by
choosing not to, frustrated the House’s ability to do so.
State Appellees’ Motion to Dismiss, Va. House of Delegates v. Bethune-Hill, No. 18-281 at *2–3 (Oct. 9,
2018).8
8 Notably, it did not occur to the plaintiffs in that case ini-
tially to argue that the House lacked standing. The state
attorney general was the sole party to raise the argument
20
This Court agreed in a 5–4 decision. 139 S. Ct. at
1945. The majority concluded that the injury inflicted
by the district court’s injunction flowed to Virginia as
a state, not the House of Delegates, which it determined had suffered “no cognizable injury.” Id. at
1955. Because the state was the only party who had
“standing to defend the constitutionality of its statute,” the Court proceeded to look to state law to see
how Virginia had “chosen to speak as a sovereign entity.” Id. at 1951–52. According to the Court, the Virginia attorney general was the “single voice” who had
authority to defend the state’s interest in its own law.
Id. at 1952. The Court announced that Virginia had
decided, through the state attorney general, that it
“would rather stop than fight on.” Id. at 1956.
The majority opinion ignored the partisan underpinnings of the case, a point the dissent found
“astounding.” Id. at 1957 (Alito, J., dissenting). “If the
selection of a districting plan did not alter what the
legislative body does, why would there be such
pitched battles over redistricting efforts?” Id. Indeed,
Virginia House of Delegates is the paradigmatic case
where vesting sole defense authority with the state
attorney general is dubious policy. As a redistricting
case, it was among the most partisan of all litigation,
as commentators have recognized for decades. Dixon
Jr., supra, 153. And the appeal was more than color-
for the first time in briefing on the House’s motion for a
stay pending appeal. State Appellees’ Response in Opposition, Va. House of Delegates v. Bethune-Hill, No. 18A629 at
*9 (Dec. 20, 2018).
21
able: the panel below had split 2–1, as a dissenter concluded that the challenge should fail as to each of the
eleven districts at issue on remand. Bethune-Hill, 326
F.Supp.3d at 193 (Payne, J. dissenting). The U.S. Solicitor General, even while opining that the Virginia
House lacked standing, argued that the appeal should
succeed on the merits. Transcript of Oral Argument
at 36, Bethune Hill v. Va. State Bd. of Elections, 139
S. Ct. 1945 (2019) (No. 18-281); Brief of the United
States as Amicus Curiae in Support of Neither Party
at 18–33, Bethune Hill v. Va. State Bd. of Elections,
139 S. Ct. 1945 (2019) (No. 18-281). And the Virginia
House had a compelling additional challenge to the
remedial plan, based on arguments that the court-appointed special master had erroneously utilized a racial quota. Transcript of Oral Argument at 20, Bethune Hill v. Va. State Bd. of Elections, 139 S. Ct. 1945
(2019) (No. 18-281). In short, there was more than a
colorable appeal available.
This was, however, transparently a case where
Democratic interests stood much to gain from the
judgment. The injury the injunction imposed on Virginia had the clear side effect of benefiting the Democratic Party. In fact, the Washington Post announced
that the remedial plan the district court adopted was
a significant success for the attorney general’s Democratic Party. Gregory S. Schneider, Federal Judges
Choose Va. Redistricting Map Favorable to Democrats, Wash. Post, Jan. 23, 2019.9 And the remedial
Available at https://www.washingtonpost.com/local/virginia-politics/federal-judges-choose-va-redistricting-map9
22
plan came into being only after Virginia’s Democratic
governor announced that a potential legislative remedy being negotiated on a bipartisan basis in the Virginia General Assembly would be vetoed—no matter
how many legislative Democrats voted for the plan.
Gregory S. Schneider, Va. Gov. Northam Threatens
Veto Over GOP Redistricting Plan, Wash. Post, Oct. 2,
2018. 10 Nor could the state attorney general argue
with any credibility that he was saving resources in
declining to appeal: opposing the Virginia House’s appeal cost his office jurisdictional and merits briefing
by a team of the state’s most qualified attorneys and
argument by the state solicitor general, who did all
that and also filed opposing briefs to the House’s stay
motion. There is no serious explanation for the attorney general’s decisions in Virginia House of Delegates
but partisanship. And, unsurprisingly, the Democratic Party gained control of the body in the next
election. Gregory S. Schneider, Democrats Flip Virginia Senate and House, Taking Control of State Government for the First Time in a Generation, Wash.
Post, Nov. 5, 2019.11
favorable-to-democrats-six-gop-house-districts-would-getbluer/2019/01/22/401b2618-1ebc-11e9-91453f74070bbdb9_story.html (last accessed Jan. 17, 2022).
10 Available
at https://www.washingtonpost.com/local/virginia-politics/republicans-to-convene-va-house-of-delegates-oct-21-to-take-up-redistricting/2018/10/02/bab6
638a-c654-11e8-b1ed-1d2d65b86d0c_story.html (last accessed Jan. 17, 2022).
Available at https://www.washingtonpost.com/pollsopen-in-virginia-balance-of-power-in-state-government-is11
23
B. But this Court did not hold the states hostage
to that outcome. The Court need not revisit Virginia
House of Delegates in this case because the decision
announced its own limiting principle: the controlling
fact was that Virginia law delegated defense authority exclusively to the state attorney general alone, and
thus the injury to the state was the attorney general’s
alone to appeal. 12 Any dispute with the policy outcome was therefore deemed a dispute with Virginia
law, not with this Court’s policy dictates. Virginia
House of Delegates therefore made clear that the rule
it announced could be altered by state law, since the
same principle requiring deference to the Virginia attorney general’s choices would require deference to
other state choices where states choose differently.
See 139 S. Ct. at 1951.
at-stake/2019/11/05/bdb57972-ff5b-11e9-85012a7123a38c58_story.html (last accessed Jan. 17, 2022).
12 In this regard, the Court failed to consider a different
construction of state law along the lines Judge Jones articulated in League of United Latin American Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 842 (5th Cir. 1993),
which opined that the state attorney general’s role is as an
attorney bound to the wishes of the client. In Virginia
House of Delegates, it was actually the State Board of Elections, not the state attorney general, with the power to direct the litigation positions taken by that litigant, which
was the state attorney general’s only client in the case.
139 S. Ct. at 1948. As between the Virginia House of Delegates and the Virginia State Board of Elections, no statute
provided that the latter, rather than the former, was the
right party to be making litigation choices.
24
In particular, Virginia House of Delegates pointed
to an Indiana law that afforded standing to the state
legislature to defend state law. Id. at 1952 (citing Ind.
Code. § 2-3-8-1 (2011) (empowering the legislature “to
employ attorneys other than the Attorney General to
defend any law enacted creating legislative or congressional districts for the state of Indiana”)). This
Court made clear that if, like Indiana, Virginia “had
designated the House to represent its interests…[the
Court] would agree that the House could stand in for
the State.” Id. at 1951. In this way, the Court recognized the principle that states may take a variety of
approaches to ensure there are two opposing partiesin challenges to its law. See Zoeller, supra, at 552. The
plain directive of Virginia House of Delegates is that
federal courts must defer to state choices in this department.
C. North Carolina General Statute § 1-72.2 is exactly the type of statute Virginia House of Delegates
announced can and should be construed to afford legislative leaders the right to defend the state’s interest
in litigation. In response to the kind of political conflicts so common everywhere, the statute explicitly allows the General Assembly’s officers (Petitioners
here) to step in as defendants in their sole and unreviewable discretion. It expressly identifies “the General Assembly,” through “the Speaker of the House of
Representatives and the President Pro Tempore of
the Senate,” as “the State of North Carolina” for purposes of litigation. Id. § 1-72.2(a). And it authorizes
those leaders to intervene and otherwise control the
defense of state law. Id. § 1-72.2(b).
25
Perhaps most significantly, it affords the North
Carolina attorney general a subordinate role in this
scheme. The other litigant defined as the state itself
is the state’s governor. The statute provides that “the
Governor constitutes the executive branch” and that
“both the General Assembly and the Governor constitute the State of North Carolina.” Id. § 1-72.2(a).
Thus, the only person who can arguably claim to compete with Petitioners’ right to defend North Carolina—as the state itself—is the governor, but the governor is not a party to this proceeding because the
governor himself asked to be dismissed and was dismissed. Further, any disagreement between Petitioners and the governor would cleanly be resolved by
state law in Petitioners’ favor, as it provides that Petitioners (through counsel of their choice) “shall possess final decision-making authority” in the litigation.
N.C. Gen. Stat. § 120-32.6(c).
This scheme places the other participants in this
case beneath Petitioners when it comes to speaking
for North Carolina. To begin, state statute makes
clear that, in constitutional challenges where Petitioners choose to defend state law, Petitioners “shall
be deemed to be a client of the Attorney General for
purposes of that action as a matter of law….” Id.
§ 120-32.6(b); see also id. § 114-2(2) (it shall be the
duty of the Attorney General to “represent all state
departments, agencies, institutions, commissions, bureaus or other organized activities of the State…[and
shall] act in conformance with Rule 1.2 of the Rules of
Professional Conduct”). This means that the attorney
general is obligated to follow Petitioners’ directives—
26
not the other way around. N.C. R. of Professional Conduct 1.2 (“[A] lawyer shall abide by a client’s decisions
concerning the objectives of representation….”).
North Carolina law also empowers Petitioners to “employ[] counsel in addition to or other than the Attorney General,” as Petitioners have done here. N.C.
Gen. Stat. § 120-32.6(c). Where that occurs, “[t]he
lead counsel…shall possess final decision-making authority,” and “[o]ther counsel…shall, consistent with
the Rules of Professional Conduct, cooperate with
such designated lead counsel.” Id. There is no basis
for the attorney general to claim authority exceeding
that of Petitioners, when his role is plainly subordinate.
Meanwhile, the State Board of Election fails to cite
any statute providing that it “constitute[s] the State
of North Carolina” for purposes of the defense of state
law. N.C. Gen. Stat. § 1-72.2(a). Although one need
not doubt its status as a proper and even a necessary
defendant in this case under the doctrine of Ex parte
Young and Rule 19, state law does not elevate it to the
level of Petitioners for purposes of controlling the defense of state law. See Ex Parte Young, 209 U.S. 123
(1908); Fed. R. Civ. P. 19.
There can then be no serious question about what
these statutory provisions, together, provide. For purposes of this case, Petitioners are the state of North
Carolina, and, because Respondents have no colorable
claim to that status, their interest in defense of the
challenged state statute is subordinate to Petitioners’
interest. Indeed, as Petitioners’ brief recounts (at 3–
4), it was that precise fact pattern that gave rise to
27
the General Assembly’s legislation—overriding the
governor’s veto—declaring its officers “necessary parties” in cases like this one. N.C. Gen. Stat. § 12032.6(b). This occurred in a voter identification case
like this one, where the state attorney general acted
on policy disagreements with the law by declining to
petition this Court for review of a divided and controversial Fourth Circuit decision invalidating that law
and actively opposing the petition of the General Assembly’s leaders. N.C. State Conf. of NAACP v.
McCrory, 831 F.3d 204 (4th Cir. 2016); North Carolina v. N.C. State Conf. of NAACP, 137 S. Ct. 27
(2016). The Fourth Circuit’s decision in that case
bears an uncanny resemblance on the merits to the
recent en banc Ninth Circuit decision this Court reversed in Brnovich v. Democratic National Comm.,
141 S. Ct. 2321 (2021). It will remain unknown what
outcome would have resulted had the attorney general supported the appeal in NAACP v. McCrory, but
there is no room to doubt that the General Assembly
intended to prevent that non-outcome from occurring
again. And it did so in precisely the manner this Court
approved in Virginia House of Delegates.
III.
Intervention Doctrine Must Be Construed
Against the Backdrop of States’ Authority
To Choose Their Representatives in Court
The en banc Fourth Circuit majority managed to
give this case the same procedural outcome as occurred in NAACP v. McCrory, even though the General Assembly unmistakably legislated against that
outcome. It did so by sidestepping the Virginia House
28
of Delegates analysis. It claimed that the General Assembly may intervene “only if…the Attorney General
is inadequately representing” the interest of the
State, N.C. State Conf. of the NAACP v. Berger, 999
F.3d 915, 918 (4th Cir. 2021), and purported to construe federal law governing mandatory and permissive intervention, rather than North Carolina’s legislation assigning Petitioners the right to defend state
law, id. at 926 (“[T]his case is governed by federal
law”). Specifically, the Fourth Circuit held that the
General Assembly’s leaders failed to establish that
their interest was not adequately represented for intervention purposes by the attorney general. Id. at
928.
A. This ignores that whether a state is adequately represented in court is necessarily decided according to state law, because it is the state itself that
has the power to declare its representatives. Gregory
v. Ashcroft, 501 U.S. 452, 460 (1991). Here, state law
provides that Petitioners “constitute the State of
North Carolina.” N.C. Gen. Stat. § 1-72.2(a). That being so, the state has spoken and declared that it is not
adequately represented without their participation,
should they elect to participate. There was no basis
for the Fourth Circuit to conclude that the attorney
general’s representation is adequate, against the
clear announcement of North Carolina that it is not.
B. The Fourth Circuit acknowledged that, “[i]f
North Carolina’s General Assembly, in its considered
judgment, believes that the Attorney General is not
adequately representing the State in this or any case,
29
then it of course is free to remove the Attorney General and substitute some other representative, including the Leaders.” Berger, 999 F.3d at 934. Nevertheless, it claimed that Virginia House of Delegates permits a state to choose only one representative. Id. at
934. But Virginia House of Delegates said nothing of
the sort. It clearly explained that “Virginia has…chosen to speak as a sovereign entity with a single voice.”
139 S. Ct. at 1952. It did not hold that North Carolina
must choose as Virginia has chosen.
The very example the Court cited, Indiana, permits both the Indiana Attorney General and the Indiana legislature to represent the state in redistricting
litigation. Va. House of Delegates, 139 S. Ct. at 1952
(citing Ind. Code. § 2-3-8-1). The Fourth Circuit’s single-voice demand arbitrarily curtails states’ authority
to define their own instruments of government and
contravenes this Court’s precedent. See, e.g.,
Hollingsworth, 570 U.S. at 710. It further restricts
multiple state officials, necessarily joined under Ex
parte Young and Rule 19, from choosing independent
lawyers. And the Fourth Circuit’s apparent concern
that honoring North Carolina law would “leave federal district courts effectively powerless to control litigation involving states,” 999 F.3d at 934, is difficult
to understand. The sole consequence of intervention
is the additional briefing and evidentiary presentation of another litigant. And it is not unusual for multiple state defendants to be named in a single case,
30
often because relief against multiple state enforcement officers is essential for the plaintiff.13
C. Moreover, the Fourth Circuit failed to justify
excluding Petitioners, rather than the attorney general, as the proper remedy for this concern. As explained, North Carolina has established a clear hierarchy of decisionmakers and raised Petitioners above
the attorney general in that hierarchy. So any federal
need to restrict North Carolina to a single voice would
seem best resolved by permitting Petitioners to intervene and hire outside counsel to represent Petitioners
and the Board of Elections—and to oust the attorney
general. As far as federal law is concerned, that outcome is in no way less justified than what the Fourth
Circuit chose. And, as far as state law is concerned, it
appears to be the more proper outcome, assuming
only one voice for North Carolina may be heard.
The Fourth Circuit also attempted to distinguish
this case from others where intervention (it suggested) would be appropriate under its standard because “[t]his is not a case of not defending state
law….” 999 F.3d at 928. But this argument ignores
that the voter identification litigation is not over and
the final opportunities for appeal have not yet been
exhausted. In Virginia House of Delegates, after all,
For example a plaintiff challenging a state campaign finance law may need to sue a centralized state campaignfinance agency, as well as a local district attorney with
criminal enforcement authority. See, e.g., Wis. Right To
Life, Inc. v. Barland, 751 F.3d 804, 809 (7th Cir. 2014).
Nothing in federal law requires those parties to retain the
same attorney or to take the same positions in the case.
13
31
the attorney general supported the Virginia House’s
defense of the challenged redistricting law at the trial
level and in the appellee posture in this Court, and
only after an injunction was entered did he withdraw
that support and actively oppose the appeal. Likewise, the result in NAACP v. McCrory that the North
Carolina General Assembly sought to preclude was a
failure to petition for certiorari. At those stages, intervention is likely to be deemed untimely. That is why
North Carolina law gives Petitioners “standing to intervene” from the outset of a case. N.C. Gen. Stat. § 172.2(b).14
D. The Fourth Circuit also failed to explain how
its approach assuages North Carolina’s legitimate
policy concern with poor litigation defenses. In fact,
the en banc majority opined that the dereliction
necessary to overcome the presumption of adequate
representation will only be found in “extraordinary”
cases. 999 F.3d at 918 (citation omitted). That
apparently means that in a case like this, where the
attorney general presents no expert report and no
meaningful percipient-witness testimony on the core
question of intent, see Brief for Petitioner 11, 9, his
representation is still deemed adequate. And the
litigants willing to proffer such evidence are thereby
excluded, apparently on the theory that the question
whether to litigate a case well or litigate it poorly is
14 Indeed,
the attorney general’s vehement opposition to
intervention speaks for itself. If the attorney general truly
intended to defend state law vigorously, what is the purpose of expending so much effort merely to exclude Petitioners from this case?
32
merely “a disagreement over litigation strategy.” 999
F.3d at 929.
But litigation in general, and election law
litigation in particular, usually turns on the quality of
presentation, rendering qualified expert testimony
essential to any meaningful prospects of success. For
example, competent litigation under Section 2 of the
Voting Rights Act, the statute at issue in this case,
requires statistical estimates concerning racial voting
patterns. See, e.g., Thornburg v. Gingles, 478 U.S. 30,
52–53 (1986) (plurality opinion) (relying on an expert
analysis that “evaluated data from 53 General
Assembly primary and general elections” and
“subjected the data to two complementary methods of
analysis...to determine whether blacks and whites in
these districts differed in their voting behavior”
(footnote omitted)); see also Clerveaux v. E. Ramapo
Cent. Sch. Dist., 984 F.3d 213, 225 (2d Cir. 2021)
(describing the current state of the literature). To
present no expert analysis would in many instances
place private attorneys in this line of work on calls
with their malpractice insurance carriers.
E. All of this would be clear if the roles were
altered. If a plaintiff challenged state law without
suing the traditional official rendered a necessary
party by state law (such as the board of elections or
secretary of state), that official’s intervention would
be permitted without question. The Federal Rules of
Civil Procedure overtly recognize this problem, permitting attorneys general to intervene when a state
statute is challenged, Fed. R. Civ. P. 5.1.
33
But states are permitted to be non-traditional.
One example is seen in cases involving redistricting
commissions, which states often vest with authority
not only to enact redistricting legislation, but also to
defend that legislation through counsel of their
choice. See, e.g., Ariz. Const. art. IV, Pt. 2 § 1(20);
Mich. Const. art. IV § 6, Mich. Ct. R. 7.306. Thus,
challenges to Arizona redistricting litigation must be
brought against the Arizona Independent Redistricting Commission. See, e.g., Harris v. Ariz. Indep. Redistricting Comm’n, 578 U.S. 253 (2016).
Harris is another illuminating example, because
the Arizona attorney general, representing the Arizona secretary of state, argued in this Court that the
Arizona Independent Redistricting Commission’s redistricting plan was unconstitutional. Brief of Appellee Michele Reagan in Support of Appellants at 10–
20, Harris v. Ariz. Indep. Redistricting Comm’n, 578
U.S. 253 (2016) (No. 14-232) 2015 WL 7713705. Under
the Fourth Circuit’s rubric, if the plaintiffs there had
sued the secretary of state alone, represented by the
attorney general, the Commission would not have
been permitted to intervene, and the attorney general
could have thwarted the defense by entering a consent decree. As the case turned out, the Commission’s
position was accepted and the attorney general’s was
not. Harris, 578 U.S. at 264–65.
North Carolina plainly intended to place
Petitioners in the role Arizona assigned to the
Arizona Independent Redistricting Commission.
Although suing the secretary of state in Arizona is
essential to obtaining relief, the state views the
34
Commission as the party responsible to control
defense of the law. So too in North Carolina. North
Carolina law requires that the Rule 5.1(c) notice of
constitutional challenge be served on Petitioners.
N.C. Gen. Stat. § 114-2(9). It deems Petitioners
“necessary parties.” N.C. Gen. Stat. § 120-32.6(b). It
permits them to hire outside counsel. N.C. Gen. Stat.
§ 120-32.6(c). And it gives them final “decision-making authority.” Id. Excluding Petitioners from this
case is no more justifiable than excluding the Arizona
Independent Redistricting Commission would have
been in Harris.
CONCLUSION
The Court should reverse.
Respectfully submitted,
RICHARD B. RAILE
Counsel of Record
TREVOR M. STANLEY
JENNA M. LORENCE
MICHAEL E. NAGELBERG
BAKER & HOSTETLER LLP
1050 Connecticut Ave., N.W.
Washington, D.C. 20036
(202) 861-1711
rraile@bakerlaw.com
JANUARY 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.