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,

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 AMICUS CURIAE

THE AMERICAN LEGISLATIVE EXCHANGE

COUNCIL IN SUPPORT OF PETITIONERS

Jason Torchinsky

Jonathon Paul Hauenschild

Counsel of Record

Bartlett Cleland

Phillip M. Gordon

American Legislative

Sebastian Waisman

Exchange Council

Holtzman Vogel Baran

2900 Crystal Dr., Ste. 600

Torchinsky & Josefiak PLLC

Arlington, VA 22202

15405 John Marshall Hwy.

(703) 373-0933

Haymarket, VA 20169

jhauenschild@alec.org

(540) 341-8808

(540) 341-8809

jtorchinsky@holtzmanvogel.com

Counsel for Amicus Curiae

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

STATEMENT OF INTEREST OF AMICUS

CURIAE .............................................................. 1

SUMMARY OF THE ARGUMENT ............................ 2

ARGUMENT ............................................................... 7

Constitutional Principles of

Federalism and Dual Sovereignty

Require That State Legislatures Be

Permitted to Intervene in Federal

Litigation to Defend the

Constitutionality of State Election

Laws. ............................................................. 7

Federalism Mandates That the

Rule 24(a) Intervention-of-Right

Analysis Account for the

Legislature’s Role Within a

State’s Constitutional

Structure, Including the

Legislature’s Authority to

Defend Duly Enacted State

Election Laws. ...................................... 7

Federalism Requires That Each

State Have Discretion to Select

the Agents That Will Best

Represent Its Interests in

Litigation. ........................................... 11

II.

The Fourth Circuit’s Decision

Diminishes the Authority of State

Legislatures to Defend their

Constitutional Powers. ............................... 17

The Original Public Meaning of

the Constitution’s Election

Clause Indicates That State

Legislatures—Not State

Executive Officers—Establish

Standards for the Conduct and

Administration of Elections............... 18

The Constitution’s Elections

Clause Expressly Confers Upon

State Legislatures a Unique

Interest in Litigation That May

Impact the Meaning and Scope

of a State’s Election Laws.................. 21

CONCLUSION .......................................................... 24

iii

TABLE OF AUTHORITIES

CASES

Ariz. State Legis. v. Ariz. Indep. Redistricting

Comm'n, 576 U.S. 787 (2015) ........................... 19

Brnovich v. Democratic National Committee,

___ U.S. ___, 141 S. Ct. 2321 (2021) ................. 21

Common Cause R.I. v. Gorbea, No. 1:20-C

2020 U.S. Dist. LEXIS 135267 (D.R.I.

2020) .................................................................. 23

Cook v. Gralike, 531 U.S. 510 (2001) ........................ 19

Ga. Muslim Voter Project v. Kemp, 918 F.3d

1262 (11th Cir. 2019) .................................... 9, 10

Gary v. Va. Dep't of Elections, No. 1:20-CV860, 2020 U.S. Dist. LEXIS 214886 (E.D.

Va. 2020) ........................................................... 23

Hawke v. Smith, 253 U.S. 221, 227 (1920) ............... 18

Hollingsworth v. Perry, 570 U.S. 693 (2013) ...... 12, 15

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ............................................. 1

League of Women Voters of Mich. v. Johnson,

902 F.3d 572 (6th Cir. 2018)............................. 22

League of Women Voters of Va. v. Va. State

Bd. Of Elections, 481 F. Supp. 3d 580

(W.D. Va. 2020) ................................................. 23

McCormick v. United States, 500 U.S. 257

(1991) ................................................................. 22

McPherson v. Blacker, 146 U.S. 1 (1892).................. 19

Parnell v. Allegheny Cty. Bd. of Elections, No.

2:20-cv-1570, 2020 U.S. Dist. LEXIS

204105 (W.D. Pa. 2020) .................................... 23

Republican Party of Minn. v. White, 416 F.3d

738 (8th Cir. 2005) ............................................ 10

Smiley v. Hohn, 285 U.S. 355 (1932) .................. 18, 21

Trbovich v. UMW, 404 U.S. 528 (1972) ...................... 8

U.S. Term Limits, Inc. v. Thornton, 514 U.S.

779 (1995) .......................................................... 19

Va. House of Delegates v. Bethune-Hill, ___

U.S. ___, 139 S. Ct. 1945 (2019) ....... 1, 14, 15, 16

Virginia v. Westinghouse Elec. Corp., 542 F.2d

214 (4th Cir. 1976) .............................................. 8

STATUTES AND RULES

U.S. Const. art. I, §§ 2-5 ............................................ 20

U.S. Const., art. I, § 4 ........................................ passim

N.C. Const. art. II. §§ 1, 20 ....................................... 19

NC Gen. Stat. § 1-72.2(a) .......................................... 12

N.C. Gen. Stat. § 1-72.3 ...................................... 12, 14

N.C. Gen. Stat. § 114-2 (10) ...................................... 13

N.C. Gen. Stat. § 120-32.6(b) .............................. 12, 14

Va. Code Ann. § 2.2-507(A) ....................................... 14

Federal Rule of Civil Procedure 24 ................... passim

OTHER AUTHORITIES

1 William Blackstone, Commentaries on the

Laws of England (1765-1769) ..................... 19, 20

American Legislative Exchange Council,

Resolution Reaffirming Tenth

Amendment Rights (amended January

16, 2016) .............................................................. 2

American Legislative Exchange Council,

Resolution Reaffirming the Right of

State Legislatures to Determine

Electoral Districts (September 18, 2018) ........... 2

George Petyt, Lex Parliamentaria, 9 (1690) ............ 20

Jeffrey S. Sutton, Who Decides?: States as

Laboratories of Constitutional

Experimentation 8 (2022) ................................... 9

Story, Joseph, Commentaries on the

Constitution of the United States § 820

(3d ed. 1858) ................................................ 20, 21

The Federalist No. 59 (Alexander Hamilton) ..... 17, 20

Devins & Prakash, Fifty States, Fifty

Attorneys General. And Fifty Approaches

to the Duty to Defend, 124 Yale L. J.

2100 (2015) ...................................................... 3, 4

STATEMENT OF INTEREST

OF AMICUS CURIAE1

The American Legislative Exchange Council

(“ALEC”) is America’s largest non-partisan,

voluntary membership organization of state

legislators dedicated to the principles of limited

government, free markets, and federalism. ALEC’s

interest in this proceeding is the protection of state

legislatures’ ability to intervene in cases where the

constitutionality of a statute is challenged and the

state has designated the legislature as the final

party for determining which entity represents the

state in court. ALEC has participated as an amicus

curiae in several cases involving state legislative

standing or intervention including Va. House of

Delegates v. Bethune-Hill, ___ U.S. ___, 139 S. Ct.

1945 (2019) and League of United Latin Am. Citizens

v. Perry, 548 U.S. 399 (2006). As such, ALEC has an

interest in fostering respect for the role of state

legislatures within our constitutional order and in

promoting state legislatures’ access to the federal

judiciary when necessary to vindicate their lawful

powers and prerogatives.

ALEC members – state legislators – have long

maintained an interest in protecting and promoting

their authority. At the encouraging of its members,

ALEC has adopted several model public policies that

1 Pursuant to this Court’s Rule 37.6, counsel for amicus curiae

certify that this brief was not authored in whole or in part by

counsel for any party and that no person or entity other than

amicus curiae or its counsel has made a monetary contribution

to the preparation or submission of this brief. The parties have

consented to its filing.

could be considered by state legislatures, some

speaking to the roles of state legislatures either with

respect to the federal government or with respect to

their vested constitutional authority. These policies

include

the

Resolution

Reaffirming

Tenth

Amendment Rights2 and the Resolution Reaffirming

the Right of State Legislatures to Determine

Electoral Districts.3

Because the Fourth Circuit, sitting en banc,

adopted an erroneous interpretation of Rule 24(a)’s

intervention-of-right

standard

that

would

dramatically curtail the ability of state legislatures

to defend duly enacted state laws, this case

implicates ALEC’s core organizational interests and

concerns. Accordingly, ALEC offers the following

brief to explain how the Constitution’s federal

structure and the Constitution’s Elections Clause

both require that the Rule 24(a) intervention-of-right

analysis recognize state legislatures’ unique and

deep-rooted

interests

defending

the

constitutionality of state election laws.

SUMMARY OF THE ARGUMENT

The Constitution’s Elections Clause delegates to

state legislatures—as distinguished from all other

2 Am. Legis. Exchange Council, Resolution Reaffirming Tenth

Amendment

Rights

(amended

Jan.

16,

2016),

https://alec.org/model-policy/resolution-reaffirming-tenthamendment-rights/.

3 Am. Legis. Exchange Council, Resolution Reaffirming the

Right of State Legislatures to Determine Electoral Districts

(Sept. 18, 2018), https://alec.org/model-policy/draft-resolutionreaffirming-the-right-of-state-legislatures-to-determineelectoral-districts/.

state governmental actors—the power to prescribe

the “Times, Places, and Manner” of holding elections.

U.S. Const., art. I, § 4. Accordingly, the Constitution

confers upon state legislatures a unique and

important role in crafting the rules that govern

federal elections.

Yet divided government at the state level has

made it an increasingly treacherous proposition for

state legislatures to address electoral fraud and

abuse. When state legislatures seek to exercise their

special constitutional authority to implement

electoral reforms, they must now expect to encounter

insidious and politically motivated efforts to

undermine their constitutional prerogative—from

none other than their state’s own Attorney General.

Indeed, state Attorneys General now routinely

betray their oath of office and expressly decline to

defend provisions of state law that they perceive as

incompatible with their own political objectives.4

Just as often, however, they seek to modify or to set

aside controversial measures of which they

disapprove—but that they were not able to shape

through the democratic process—by masquerading

as disinterested government lawyers. When legal

challenges to such measures are filed, they register

an appearance on behalf of their sovereign client, but

then proceed to provide a half-hearted and

lackadaisical defense.

4 See Devins & Prakash, Fifty States, Fifty Attorneys General.

And Fifty Approaches to the Duty to Defend, 124 Yale L. J.

2100, 2102-03 (2015) (noting that “state attorneys general are

declining to defend state laws on the grounds that those laws

transgress the federal and state constitutions”).

Such refusal by state Attorneys General to fulfill

their basic professional obligations is a relatively

new development, arising only in the past decade.

Indeed, only three refusals by Attorneys General to

defend state law occurred “before 1980 and twelve

from 1980 to 2007[,]” for a total of fifteen before

2007.5

However, in an ominous turn of events, state

Attorneys General play politics and decline to

provide a thorough and vigorous defense of duly

enacted state election laws—measures approved by

the people’s representatives in accordance with the

process established by each state’s constitution—and

in so doing, diminish the special constitutional

authority of state legislatures and upend the

separation and balance of powers codified within

each state’s constitution.

Through their grandstanding and dithering, such

state Attorneys General aim to supplant the nuances

of the legislative process with their own political

agenda. Elected legislators hear extensive testimony,

balance competing considerations, and ultimately

settle upon the measures that they believe constitute

the best available compromise between principle and

circumstance. The results of this multi-faceted

process are frequently anathema to the many state

Attorneys General whose aim is to generate

headlines and to advance their political ambitions.

See Pet.App.51 (“Every attorney general who looks in

the mirror sees a governor.”) (Wilkinson, J.,

dissenting).

Id. at 2137.

State legislatures are not entirely without a

remedy for such malfeasance, however. When state

laws are challenged in court, state legislatures may

retain their own counsel and move to intervene in

the litigation. They can even go further and codify in

state law their authority to seek such intervention

and represent the state’s interests in litigation

alongside, and on par with, the state’s Attorney

General.

North Carolina’s Legislature took both such

measures in the instant case. Remarkably, the

Fourth Circuit, sitting en banc, nevertheless

prohibited North Carolina’s Legislature from

intervening in the litigation. For this reason, an

important North Carolina law regarding electoral

fraud was left to be defended by the state’s conflicted

Attorney General, who had previously opposed and

criticized the challenged measure and who had up

until that point pursued an unjustifiably passive

litigation strategy.

The Fourth Circuit’s decision was wrong, to be

sure, because it ignored the clear import of North

Carolina’s law designating the state legislature as

one of the state’s agents for purposes of litigation.

But the Fourth Circuit’s decision is not merely

inconsistent with North Carolina’s law. As this brief

will demonstrate, the Fourth Circuit’s decision is

also offensive to two fundamental principles of

federal constitutional law.

First, federalism requires that the Rule 24(a)

intervention-of-right analysis incorporate state

legislatures’

interests

defending

the

constitutionality of duly enacted state election laws.

To conclude otherwise and entrust the defense of a

state’s election laws entirely to a state’s Attorney

General, regardless of his or her past conduct,

violates the separation and balance of powers within

each state. Such reasoning contravenes a central

expectation of our Constitution’s federal structure,

namely, that federal courts will respect a state’s

decisions regarding its own governmental structure.

Moreover, considerations of federalism also mandate

that federal courts, in applying their own procedural

rules, accord deference to another sovereign’s express

preference as to who may serve as its agent for

litigation purposes.

Second, as Judge Wilkinson highlighted in his

dissenting opinion in this case, the Constitution’s

Elections Clause confers upon state legislatures a

unique and deep-rooted interest in any litigation that

may affect state election laws. The Elections Clause

delegates to state legislatures in particular—and not

to state governments generally—the power to

prescribe the “Times, Places, and Manner” of holding

elections. U.S. Const., art. I, § 4. Accordingly, the

federal

Constitution

provides

vehement

endorsement of state legislatures’ unique interests in

litigation challenging the constitutionality of state

election laws and confirms that legislatures must be

permitted to intervene in such cases because their

interests cannot be adequately represented by state

Attorneys General.

ARGUMENT

Constitutional

Principles

Federalism and Dual Sovereignty

Require That State Legislatures Be

Permitted to Intervene in Federal

Litigation

Defend

the

Constitutionality of State Election

Laws.

The Constitution’s federal structure requires that

the federal judiciary respect a state’s decisions

regarding its own governmental structure. The

Fourth Circuit’s erroneous approach to interventionof-right under Rule 24(a) is inconsistent with this

requirement. As explained below, the Fourth

Circuit’s refusal to permit North Carolina’s

Legislature to intervene in this case as a matter of

right denigrates the role of the Legislature within

the state’s constitutional order by “obstructing the

legislative branch from performing its role in

defending . . . duly enacted legislation.” Pet.App.102.

A. Federalism Mandates That the Rule

24(a) Intervention-of-Right Analysis

Account for the Legislature’s Role

Within

State’s

Constitutional

Structure, Including the Legislature’s

Authority to Defend Duly Enacted

State Election Laws.

The right to intervene in a pending federal suit is

governed by Federal Rule of Civil Procedure 24. Rule

24(a)(2) provides for intervention as a matter of right

when a proposed intervenor 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.” Pet.App.23-24. With respect

to adequacy of representation, the “requirement of

the Rule is satisfied if the applicant shows that

representation of his interest may be inadequate;

and the burden of making that showing should be

treated as minimal.” Trbovich v. UMW, 404 U.S. 528,

540 n.10 (1972) (cleaned up).

In this case, the Fourth Circuit, sitting en banc,

applied a heightened standard with respect to

adequacy of representation, however, concluding that

there is a “long-standing presumption of adequate

representation,” Pet.Ap.30, that arises when “the

party seeking intervention has the same ultimate

objective as a party to the suit.” Virginia v.

Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir.

1976). Such presumption may be overcome only if the

proposed intervenor can “’demonstrate adversity of

interest, collusion, or nonfeasance.’” Pet.App.31.

Moreover, the Fourth Circuit also held that an

“especially ‘strong showing of inadequacy’ [is

required] to rebut the . . . presumption [of adequate

representation]” if the proposed intervenor’s

objective is shared with a governmental defendant

rather than a private litigant. Id. Ultimately, the

Fourth Circuit declined to permit the North Carolina

Legislature to intervene in this suit, finding that any

interest of the legislature was adequately

represented by the Attorney General.

The Fourth Circuit’s skewed application of the

Rule 24(a) intervention-of-right standard to the

North Carolina Legislature is crucially flawed

because it fails to incorporate considerations of

federalism and dual sovereignty into its analysis. In

evaluating whether a state legislature’s interest is

adequately represented, a federal court must respect

a state’s internal constitutional framework, including

the legislature’s assigned role in defending duly

enacted state election laws.

Each state has adopted a constitutional structure

that “prioritize[s] balance of power in government.”

See J. Sutton, Who Decides?: States as Laboratories

of Constitutional Experimentation 8 (2022). Because

each state’s constitution allocates and limits the

powers of governmental actors in distinct ways, state

constitutions both participate in, and affirm, the

American tradition that holds that structural

constitutional safeguards promote liberty and good

government. See id. at 1–11. Accordingly, North

Carolina’s Constitution calls for the “legislative,

executive, and supreme judicial powers of the State

government [to] be forever separate and distinct

from each other.” N.C. Const., Art. 1, § 6.

The federal Constitution commands, in turn,

that each

state’s

decision

separate

its

governmental functions be respected. See, e.g.,

Georgia Muslim Voter Project v. Kemp, 918 F.3d

1262, 1288 (11th Cir. 2019) (Tjoflat, J., dissenting).

“Our Constitution, which enshrines federalism”

ultimately requires that federal courts decline to

interfere with each state’s choices regarding “its own

governmental structure.” Id. “Even the narrowest

notion of federalism requires

recognize

a state’s interest in preserving the separation of

powers within its own government as a compelling

interest.” Id. (quoting Republican Party of Minn. v.

White, 416 F.3d 738, 773 (8th Cir. 2005)); see also id.

at 1294 n.34 (“[S]eparation of powers within a state

implements federalism’s

purpose

our

constitutional structure.”).

Preventing a state legislature from participating

in the defense of duly enacted state laws violates

separation-of-powers principles. See Pet.App.102-03

(citing United States v. Windsor, 570 U.S. 744, 762

(2013)). The defense of legislation from judicial

review may be understood as a component of

legislative power. In many instances, a constitutional

challenge follows immediately upon the legislature’s

enactment of an authoritative statutory text. The

task of defending the newly enacted statute is one

closely related to the original exercise of legislative

power and is best performed by the governmental

actor most familiar with the statutory text and the

reasons for its enactment. Accordingly, wresting this

task from the legislature and assigning it exclusively

to the Attorney General, regardless of his or her

willingness to undertake it properly, constitutes

unwarranted interference with the state’s internal

separation and balance of powers in violation of

federalism.

By contrast, the Fourth Circuit reasoned here

that the interest of North Carolina’s Legislature in

upholding the constitutionality of state election laws

is merely identical to the State of North Carolina’s

interest in the litigation, and that such interest is

presumptively adequately represented by the

Attorney General—except, perhaps, in the extreme

case in which the Attorney General explicitly

declines to defend the challenged statute.

Pet.App.68. The Fourth Circuit’s logic blithely

ignores the separation-of-powers violation that

results from conflating the Attorney General’s role

with the legislature’s role. Accordingly, the Fourth

Circuit’s decision is also inconsistent with a federal

court’s obligation under the federal system to respect

North Carolina’s internal separation of governmental

functions.

B. Federalism Requires That Each State

Have Discretion to Select the Agents

That Will Best Represent Its Interests

in Litigation.

Moreover, considerations of federalism require

that the Rule 24(a) intervention-of-right analysis

properly account for North Carolina’s decision to

divide the authority to defend state election laws

from constitutional challenge among both the

Legislature and the Attorney General. Such

distribution is reasonable under the circumstances

and this Court’s precedents require that North

Carolina’s choice—if not determinative—be accorded

deference within the Rule 24(a) inquiry.

i. North Carolina Law Expressly

Provides That the Legislature

Shall Serve as One of the State’s

Proper Legal Agents.

Since a state is an incorporeal entity, it cannot

speak for itself and must speak through a designated

agent in federal court. See, e.g., Hollingsworth v.

Perry, 570 U.S. 693, 710 (2013). The state’s agent is

frequently the state’s Attorney General, but such

arrangement is not foreordained and may be

adjusted by constitution or statute.

North Carolina, among other states, has

affirmatively tasked its Legislature by statute with

representation of the state’s interests in litigation.

North Carolina’s Legislature determined that the

State of North Carolina is the proper party in

interest when the validity of a statute or

constitutional provision is challenged. See N.C. Gen.

Stat. § 1-72.3.6 By statute, it remains up to the North

Carolina Legislature to determine, on a case-by-case

basis, who possesses the state’s agency. See N.C.

Gen. Stat. § 120-32.6(b).7 Moreover, the North

“The State shall be a party whenever the validity or

constitutionality of a local act of the General Assembly is the

subject of an action in any court and, except as provided in G.S.

147-17, shall be represented by the Attorney General. This

section shall not affect any authority… [NC Gen. Stat. § 12032.6].” (emphasis added).

7 Whenever the validity or constitutionality of an act of the

General Assembly or a provision of the Constitution of North

Carolina is the subject of an action in any state or federal court,

the Speaker of the House of Representatives and the President

Pro Tempore of the Senate, as agents of the State through the

General Assembly, shall be necessary parties and shall be

deemed to be a client of the Attorney General for purposes of

that action as a matter of law and pursuant to Section 7(2) of

Article III of the North Carolina Constitution. In such cases,

the General Assembly shall be deemed to be the State of North

Carolina to the extent provided in [NC Gen. Stat. § 1-72.2(a)

unless waived pursuant to this subsection. Additionally, in such

Carolina Legislature, in a separate statute, further

clarified the responsibility of the Attorney General to

hew closely to the Legislature’s interests and

instructions when charged with representation of the

state in litigation in which a state law has been

challenged. In N.C. Gen. Stat. § 114-2(10), the

Legislature requires the Attorney General “to

represent upon request and otherwise abide by and

defer to the final decision-making authority exercised

by the Speaker of the House of Representatives and

the President Pro Tempore of the Senate, as agents of

the State through the General Assembly . . . .”

(emphasis added.)

North Carolina’s designation of its Legislature as

the state’s agent for litigation purposes can only be

described as prescient considering the circumstances

of the instant case. Here, North Carolina’s “Voter ID”

statute, the measure under review, was enacted by

the Legislature over the Governor’s veto and despite

criticism from the Attorney General. Accordingly,

North Carolina’s designation of the Legislature as

the State’s agent is an eminently reasonable choice

given the political conflicts over the legislation in a

time of divided government. North Carolina is

clearly entitled to choose the Legislature as its agent,

particularly under such circumstances.

cases, the General Assembly through the Speaker of the House of

Representatives and President Pro Tempore of the Senate jointly

shall possess final decision-making authority with respect to the

defense of the challenged act of the General Assembly or

provision of the North Carolina Constitution.” (Emphasis

added).

ii. This Court’s Decision in Virginia

House of Delegates Confirms that

a State May Designate the

Legislature as One of Its Legal

Agents—And

That

Federal

Courts

Must

Heed

Such

Designation.

In Va. House of Delegates v. Bethune-Hill, 139 S.

Ct. 1945, this Court made clear that a state may

select the legislature as its agent for purposes of

representing the state’s interest in litigation. Put

simply, a state has the right, both as a sovereign and

as an incorporeal entity, to determine who best

represents its interests when the constitutionality of

a state statute is challenged. Id.8 Unlike Virginia,

which, as Va. House of Delegates concluded, never

attempted by statute to designate its legislature as

the state’s agent for litigation purposes, North

Carolina has made precisely such a designation.

Compare Va. Code Ann. § 2.2-507(A)9 with N.C. Gen.

Stat. §§ 1-72.3, 120-32.6(b).

As North Carolina made a fundamentally

different policy choice than Virginia, it is therefore

clear that federal courts are bound to respect such

choice out of respect for federalism and state

sovereignty. See Va. House of Delegates, 139 S. Ct. at

8 A state’s authority extends to designating “agents to represent

it in federal court.” Va. House of Delegates, 139 S. Ct. at 1951.

9 “All legal service in civil matters for the Commonwealth, the

Governor, and every state department, institution, division,

commission, board, bureau, agency, entity, official, court, or

judge shall be rendered and performed by the Attorney

General.” (Ellipses omitted).

1951 (“[I]f the State had designated [a legislative

branch] to represent its interests . . . the [legislative

branch] could stand in for the State.” (emphasis

added)).

Deference to a state’s selection of agent is

consistent

with,

and

indeed

required

by,

considerations of federalism. This Court has never

indicated that respect for a sovereign state’s

selection of agent for litigation purposes is dependent

on a finding that the Attorney General has declined

to undertake the representation or is otherwise

unsuited for it. Nor has the Court ever suggested

that a state may not select multiple agents for such

purpose.

On the contrary, this Court’s reasoning in Va.

House of Delegates, setting forth the conditions under

which Virginia’s House of Delegates could have

stepped into federal court to defend the

constitutionality of a Virginia law, makes clear that

a state is always entitled as a matter of right to

designate an agent besides, or in addition to, the

Attorney General. Va. House of Delegates, 139 S. Ct.

at 1951; Hollingsworth, 570 U. S., at 710 (“[A] State

must be able to designate agents to represent it in

federal court.”).

The Supreme Court noted in Va. House of

Delegates that “Virginia, had it so chosen, could have

authorized the House to litigate on the State’s behalf,

either generally or in a defined class of cases.” 139 S.

Ct. at 1951 (citing Hollingsworth, 570 U. S. at 710).

In this instance, North Carolina did authorize its

legislature to defend State law and it was incumbent

upon the Fourth Circuit to respect that sovereign

decision.

Va. House of Delegates confirms that the choice

here belongs to North Carolina. North Carolina is

entitled to choose its agent, be it the Legislature, the

Attorney General, or another officer or entity

altogether.10

Accordingly, the Fourth Circuit committed a

serious error by ignoring North Carolina’s choice of

agent in its Rule 24(a) intervention-of-right analysis.

North Carolina, as a separate sovereign, is entitled

to select the agent that, in its judgment, will best

represent its interests in federal court. The

“adequacy” of the Attorney General’s representation

is ultimately for North Carolina—not a federal

court—to determine.

A federal court may not simply ignore a state’s

choice of agent, nor may it deny the state the right to

It is worth noting that the Virginia House of Delegates’

position was also weakened by circumstances that are not

present here. Initially, the House of Delegates had to meet

standing requirements in its own right as the only party to

appeal the adverse judgment of the district court. Further, the

House of Delegates, as one organ of a bicameral legislature,

brought an appeal without its sister branch when no court has

acknowledged that “a judicial decision invalidating a state law

as unconstitutional inflicts a discrete, cognizable injury on each

organ of the government that participated in the law’s passage.”

Id. In sum, the Virginia House of Delegates was in a far

different procedural posture than North Carolina’s State

Legislature is in this case, where it was seeking to intervene at

an early stage after the constitutionality of a state statute had

been called into question.

select multiple agents. In sum, when a state

legislature has been designated as the state’s agent

for litigation purposes, the Attorney General’s

representation of the legislature is per se inadequate,

and the legislature must be permitted to intervene

under Rule 24.

II.

The

Fourth

Circuit’s

Decision

Diminishes the Authority of State

Legislatures

Defend

their

Constitutional Powers.

The Constitution’s Elections clause states: “The

Times, Places and Manner of holding Elections for . .

. Representatives, shall be prescribed in each State

by the Legislature thereof; but the Congress may at

any time by Law make or alter such Regulations . . .

.” U.S. Const. Art. I, Sec. 4, Cl. 1 (the “Elections

Clause”). The Framers understood that it would be

primarily the province of state legislatures to enact

election rules with the only check being Congress.

The Federalist No. 59 (A. Hamilton) (the Elections

Clause “reserve[s] to the national authority a right to

interpose, whenever extraordinary circumstances

might render that interposition necessary to its

safety.”). As explained below, this federal

constitutional provision confirms that state

legislatures have a unique and important interest in

litigation affecting the constitutionality of state

election laws. Because it failed to consider this

powerful interest, the Fourth Circuit’s Rule 24(a)

intervention-of-right

analysis

was

woefully

inadequate and must be reversed.

A. The Original Public Meaning of the

Constitution’s

Election

Clause

Indicates That State Legislatures—Not

State Executive Officers—Establish

Standards for the Conduct and

Administration of Elections

The Elections Clause of the United States

Constitution vests the authority to regulate

the times, places, and manner of federal elections

directly and exclusively with North Carolina’s

Legislature, subject only to alteration by Congress.

U.S. Const. Art. I, § 4. No other state governmental

actor is permitted to modify North Carolina’s election

laws.

The Constitution does not delegate any authority

regarding

the

time,

place

and

manner of elections to state Attorneys General or to

other state executive officers.11 Such principle is

plain from the provision’s text. The word

“legislature” was “not one ‘of uncertain meaning

when incorporated into the Constitution.’” Smiley,

285 U.S. at 365 (quoting Hawke v. Smith, 253 U.S.

221, 227 (1920)). The term “legislature” necessarily

differentiates between that body and the “State” of

which it is only a subpart. By empowering one body

of the state to prescribe election rules, the

Constitution impliedly denies it to others.12

11 But see Smiley v. Hohn, 285 U.S. 355 (1932) (acknowledging a

peripheral role for the executive branch within the meaning of

Art. I, Sec. 4, namely a governor’s decision to sign or to veto an

election law.)

12 Moreover, it is worth noting that North Carolina’s

Constitution similarly confers upon the Legislature the power

Aside from its plain language, the Elections

Clause denies unilateral authority to a state’s

executive officers through several contextual

reference points. For example, the power to regulate

federal elections is incidental to the Constitution’s

establishment of a federal government; it is not an

inherent state power. U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779, 806 (1995); Cook v. Gralike,

531 U.S. 510, 522 (2001). Thus, it “had to be

delegated to, rather than reserved by, the states.”

Cook, 531 U.S. at 522 (quotations omitted). Because

the delegation necessarily confines the scope of

power, the term “legislature” is “a limitation upon

the state in respect of any attempt to circumscribe

the legislative power” over federal elections.

McPherson v. Blacker, 146 U.S. 1, 25 (1892). For this

reason, this Court has explicitly recognized that

redistricting (which is itself simply a time, place, and

manner regulation) is a “legislative function,” and

that it must be performed “in accordance with [a]

State’s prescriptions for lawmaking.” Arizona State

Legis. v. Arizona Indep. Redistricting Comm’n, 576

U.S. 787 (2015).

Further, in referencing the “Times, Places and

Manner” of elections, the Elections Clause plainly

references what English Parliamentary law called

“methods of proceeding” as to the “time and place of

election” to the House of Commons. See 1 W.

Blackstone, Commentaries on the Laws of England

(1765-1769) *158-59, *170-74. Those “time and place”

“methods” were in turn completely within

to regulate state elections. See, e.g., N.C. Const., Art. II. §§ 1,

20.

parliamentary control.” G. Petyt, Lex Parliamentaria

9, 36-37, 70, 74-75,80 (1690); 1 W. Blackstone,

Commentaries,

*146-47.

delegating

the

procedures of congressional elections to legislative

bodies, the Elections Clause carried forward that

English law tradition of maintaining legislative

control, and excluding all other forms of control, over

such matters.

Another contextual reference point for the

Elections Clause comes from the framing debates

and early commentaries. Though all concerned

parties appreciated that state legislatures might

abuse their authority over election rules, none of

them even proposed that other branches of state

government may exercise a check on such abuse.

Instead, they viewed Congress as the exclusive

check. See The Federalist No. 59. That check,

expressed directly in the Constitution’s text,

parallels the judicial-type functions Congress

performs in other quintessentially legislative affairs,

as described in adjacent constitutional provisions.

See, e.g., U.S. Const., Art. I, §§ 2-5.

It was furthermore assumed that even Congress

would exercise its prerogative to override state

legislatures’ regulations only “from an extreme

necessity, or a very urgent exigency.” J. Story,

Commentaries on the Constitution of the United

States § 820 (3d ed. 1858). This was because the

power “will be so desirable a boon” in the

“possession” of “the state legislatures” that “the

exercise of power” in Congress would (it was thought)

be highly unpopular. Id. That state Attorneys

General or other state executive officers might

deprive state legislatures of this “desirable . . . boon”

in their “possession” was beyond belief. Id.

B. The Constitution’s Elections Clause

Expressly

Confers

Upon

State

Legislatures a Unique Interest in

Litigation That May Impact the

Meaning and Scope of a State’s

Election Laws.

The Constitution’s Elections Clause empowers

state legislatures alone among state governmental

actors to protect the integrity of elections through

measures aimed at the “prevention of fraud and

corrupt practices,” as well as through measures

addressing reapportionment, redistricting, and other

related matters. Smiley, 285 U.S. at 366.

Accordingly, state legislatures have a unique and

deep-rooted interest in state election laws. Indeed,

this Court recently recognized that a “strong and

entirely legitimate state interest is the prevention of

[electoral] fraud. Fraud can affect the outcome of a

close election, and fraudulent votes dilute the right of

citizens to cast ballots that carry appropriate

weight.” Brnovich v. Democratic Nat’l Comm., ___

U.S. ___, 141 S. Ct. 2321, 2340 (2021), see also id. at

2348 (“[I]t should go without saying that a State may

take action to prevent election fraud without waiting

for it to occur and be detected within its own

borders.”).

Such interest cannot be adequately represented

by a state Attorney General or other state executive

officer. State legislatures have unique power and

credibility in the regulation of federal elections that

is conferred directly by the Constitution. For this

reason, state legislatures must be permitted to

intervene under Rule 24(a) in federal litigation that

may impact the meaning and scope of state election

laws.13

i. The Fourth Circuit’s Decision

Will Allow State Executives to

Unilaterally

Change

the

Interpretation, Application, and

Meaning of State Election Law

Without the Input of State

Legislatures.

Since the onset of the COVID-19 pandemic, the

constitutionally-delegated

authority

state

legislatures has been under attack, as governors,

election commissions, secretaries of state, and even

state courts have refused to enforce, unilaterally

interpreted, or even nullified significant provisions of

state election law. Intervention in federal litigation

affecting state election law is one of the last

remaining safeguards of a state legislature’s unique

authority under the federal Constitution.

By minimizing or ignoring the North Carolina

Legislature’s unique interest in defending duly

enacted state election laws, the Fourth Circuit’s

decision will only accelerate the erosion of state

Moreover, state legislatures have a strong interest in

challenges to state election laws because such laws determine

how their members are elected. See League of Women Voters of

Mich. v. Johnson, 902 F.3d 572, 579 (6th Cir. 2018), citing

McCormick v. United States, 500 U.S. 257, 272 (1991).

legislatures’ legitimate constitutional authority to

regulate federal elections. In fact, the Fourth

Circuit’s decision opens the door for hostile state

Attorneys General to hijack state election law by

negotiating favorable settlements with politically

friendly plaintiffs. Such efforts to circumvent state

legislatures’ special constitutional authority over

federal elections have already occurred.14 These

efforts will only become more frequent if the Fourth

Circuit’s decision is not reversed.

It is critical that this Court act now to prevent the

constitutional grant of power to state legislatures to

regulate federal elections from being further

sabotaged. This Court must recognize and affirm

state legislatures’ unique interests in this area and

must protect state legislatures’ ability to intervene in

federal

court

protect

their

legitimate

constitutional powers. For these reasons, the Fourth

Circuit’s decision must be reversed.

14 See, e.g., League of Women Voters of Va. v. Virginia State Bd.

of Elections, 481 F. Supp. 3d 580 (W.D. Va. 2020) (memo. op.)

(entering a consent decree with the Virginia Attorney General

modifying Virginia election law); Common Cause R.I. v. Gorbea,

No. 1:20-CV-00318-MSM-LDA, 2020 U.S. Dist. LEXIS 135267

(D.R.I. 2020) (consent decree to suspend Rhode Island’s

absentee ballot witness and notarization requirements for 2020

general election); Gary v. Virginia Dep't of Elections, No. 1:20CV-860, 2020 U.S. Dist. LEXIS 214886 (E.D. Va. 2020) (consent

decree requiring Virginia to provide a tool that would allow

disabled voters to vote electronically/remotely); Parnell v.

Allegheny Cnty. Bd. of Elections, No. 2:20-cv-1570, 2020 U.S.

Dist. LEXIS 204105 (W.D. Pa. 2020) (consent decree requiring

county board to segregate and count separately absentee ballots

from voters who were originally mailed incorrect ballots).

CONCLUSION

The Fourth Circuit’s decision should be reversed,

and this Court should confirm that both the

Constitution’s federal structure and its Elections

Clause mandate that state legislatures be permitted

to intervene as a matter of right under Rule 24(a) in

litigation impacting state election laws. State

legislatures have unique and deep-rooted interests in

the regulation of elections that cannot be adequately

represented by a state’s Attorney General, let alone

one that has repeatedly criticized the measure under

review and failed to defend it with vigor. Failure to

give proper deference to the unique interests of state

legislatures in the Rule 24 intervention-of-right

analysis will inevitably lead to further encroachment

upon constitutional self-government in the allimportant area of election administration.

Respectfully submitted,