NC Memo of Law - Intervention - As Filed

8/13/2019 NC Memo of Law - Intervention - As Filed

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) 1:13cv861 (TDS-JEP)

)

THE STATE OF NORTH CAROLINA; THE )

NORTH CAROLINA STATE BOARD OF )

ELECTIONS; and KIM W. STRACH, in her official )

capacity as Executive Director of the North Carolina )

State Board of Elections, )

)Defendants. )

MEMORANDUM OF LAW IN SUPPORT OF MOTION

FOR INTERVENTION BY CHRISTINA KELLEY

GALLEGOS-MERRILL AND JUDICIAL WATCH, INC.

Judicial Watch, Inc. (JW) hereby moves, on its own behalf and on behalf of

Christina Kelley Gallegos-Merrill (Merrill; collectively, the JW Intervenors), for

leave to intervene as defendants pursuant to Fed. R. Civ. P. 24.1 The current defendants,

by and through counsel, have communicated that they do not oppose this motion.

NATURE OF THE MATTER BEFORE THE COURT

Plaintiff the United States of America commenced this action pursuant to Sections

2 and 12(d) of the Voting Rights Act (VRA), 42 U.S.C. 1973 and 1973j(d), seeking

to enjoin those provisions of North Carolina law contained in HB 589 that require photo

identification (photo ID) for in-person voting; eliminate same-day registration during

1 A proposed Answer in Intervention is attached hereto as Exhibit 1.

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early voting; reduce the number of days (though not the number of hours) of early voting;

and require provisional ballots to be cast in the proper precinct. The United States also

requests that, pursuant to Section 3(c) of the VRA, for an unspecified and possibly

indefinite time, the State of North Carolina be required to obtain preclearance for all

changes affecting voting either from this Court or from the Attorney General of the

United States.

STATEMENT OF FACTS

On July 25, 2013, HB 589 was passed by both houses of the North Carolina

Legislature. The bill as passed contains 60 parts amending various provisions of North

Carolinas election laws, as described above.

That same day, Attorney General Eric Holder gave a speech to the National Urban

League in Philadelphia concerning, among other things, the Supreme Courts recent

decision in Shelby Co. v. Holder, 133 S. Ct. 2612 (2013). Referring to a lawsuit against

Texas, he said, [t]his is the Departments first action to protect voting rights following

the Shelby County decision, but it will not be our last. Fitton Decl., 21. This

statement was widely seen as a reference to a potential lawsuit against North Carolina

over its photo ID law. Id. A former Holder spokesman, Matt Miller, told the Courier-

Tribune(Asheboro) the next day that [f]rom everything I've read, the writings on the

wall that the North Carolina law is going to draw a DOJ challenge. Id., 22.

On July 29, 2013, a group of political activists attended a meeting at the White

House with Attorney General Holder, Labor Secretary (and former Assistant Attorney

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General for Civil Rights) Tom Perez, and President Obama. Those attending included

representatives from the ACLU, the NAACP, and the Rev. Al Sharpton. Id., 23. Mr.

Sharpton told an interviewer for MSNBC that, based on what he heard at that meeting, he

expected action regarding North Carolina when this governor signs the bill. Id., 24.

On August 12, 2013, HB 589 was signed into law. That same day, two lawsuits

were filed in this Court challenging portions of HB 589. The complaint inN.C. State Cfc.

of the NAACP v. McCrory, No.1:13-cv-658 alleged violations of the 14thand 15thAmendments and Section 2 of the VRA, and sought relief under Section 3(c). The

complaint inLeague of Women Voters of N.C. v. State of N.C., No. 1:13-cv-660, alleged

violations of the 14th

Amendment and Section 2 of the VRA, and sought relief under

Section 3(c).

On September 30, 2013, the United States filed the complaint in this action,

alleging violations of the 14th

and 15th

Amendments and Section 2 of the VRA and

seeking relief under Section 3(c). On November 26, 2013, the United States moved to

consolidate all three cases.

The JW Intervenors

Merrill is a registered voter and a resident of North Carolina. In 2012, she was a

Republican candidate for County Commissioner of Buncombe County in voting District

2. Merrill Decl., 3. Warren Wilson College is a local school on the border of her

election district. Warren Wilson was recently named the most liberal college in the

United States in a poll conducted byNewsweekand College Prowler. Id., 4. Merrill

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alleges that, immediately after the 2012 election, she was leading by a hundred votes, but

that she ultimately lost, by 13 votes, because students in one dormitory at Warren Wilson

(or those claiming to be students, or claiming to reside in that dormitory) improperly

registered and voted in her district. Merrill believes that a number of those registrations

and votes were fraudulent. Id., 17-19. Merrill plans to run for Buncombe County

Commissioner again in 2014 and has taken steps in furtherance of her candidacy. Id.,

16. As explained herein, both as a North Carolina voter and as a candidate, Merrill has

an interest in opposing the United States request that this Court reinstate same-day

registration during the early voting period and enjoin its photo ID law.

JW is a non-profit organization that seeks to promote integrity, transparency, and

accountability in government and fidelity to the rule of law. Fitton Decl., 2. JW is a

membership organization. A person becomes a member by making a financial

contribution, in any amount. Members financial contributions are the most important

source of income to JW and provide the means for financing the activities of the

organization. As a direct benefit to its members, JW regularly fileslawsuits and involves

itself in litigation against government agencies and government officials in federal and

state courts across the United States. Id., 3-4.

JW has 7,260 members in North Carolina, many of whom are registered voters. In

November of this year, 143 JW members specifically identified themselves as North

Carolina registered voters and expressed personal support for this lawsuit. Id., 18. JW

seeks to intervene on behalf of its members who are registered to vote in North Carolina.

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Consistent with its mission, JWs activities are focused in two directions that are

relevant to this action. First, JW pursues its interest in open government by making

document requests under the Freedom of Information Act (FOIA) and various state

counterparts, and by litigating where its requests are denied or documents are withheld.

Id., 5. Second, JW seeks to protect the rights and interests of its members who are

registered voters by engaging in research and, if necessary, litigation to ensure the

integrity of the nations voter rolls and the electoral process. Id., 8-10. As set forth in

greater detail below, JW seeks to defend its interest in these activities by intervening.

QUESTION PRESENTED

Whether this Court should grant the motion of the JW Intervenors to intervene as

defendants in this action.

ARGUMENT

I. The JW Intervenors are Entitled to Intervention As a Matter of Right.On timely motion, the court must permit anyone to intervene who . . . claims an

interest relating to the property or transaction that is the subject of the action, and

is so situated that disposing of the action may as a practical matter impair or

impede the movants ability to protect its interest, unless existing parties

adequately represent that interest.

Fed. R. Civ. P 24(a)(2). A movant must showfirst, an interest sufficient to meritintervention; second, that without intervention, its interest may be impaired; and third,

that the present litigants do not adequately represent its interest. Virginia v.

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

Cir. 1976). The district court has

wide latitude in ruling on a motion to intervene and is entitled to the full range of

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reasonable discretion in determining whether these requirements have been met. Id.

a. The Proposed Intervention is Timely.In determining whether an intervention motion is timely, a court should look at

how far the suit has progressed, the prejudice which delay might cause other parties, and

the reason for [any] tardiness in moving to intervene. Gould v. Alleco, Inc., 883 F.2d

281, 286 (4th

Cir. 1989). This motion, including the intervenors proposed answer, was

filed one week after the defendant responded to the complaint. No scheduling order has

been issued, and there is no possible prejudice to the existing parties. This motion is

clearly timely. Compare Felman Prod. v. Indus. Risk Insurers, Civil Action No. 3:09-

0481, *4-5, 14-15 (S.D. W. Va., Dec. 16. 2009) (given the Fourth Circuit's liberal policy

in favor of intervention, a motion to intervene filed six months after the complaint,

during the discovery period, and after the filing of a motion for summary judgment was

still deemed timely).

b. The JW Intervenors Have a Protectable Interest That May BeImpaired in the Absence of Intervention.

While Rule 24(a) does not specify the nature of the interest required for a party to

intervene as a matter of right, the Supreme Court has recognized that what is obviously

meant . . . is a significantly protectable interest. Teague v. Bakker, 931 F.2d 259, 261

(4th

Cir. 1991), citingDonaldson v. United States, 400 U.S. 517, 531 (1971).

A court in this circuit recently held that this interest need not amount to full

Article III standing. InNAACP v. Duplin County, No. 7:88-CV-00005, *9-11 n.3

(E.D.N.C., Feb. 2, 2012), the court noted that, although other circuit courts are divided

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on the issue of whether an intervenor, in addition to satisfying the Rule 24 requirements,

must also demonstrate [Article III] standing . . . the Fourth Circuit has not decided the

issue. The court then declined

to impose the requirement that defendant intervenors must show Article III

standing in order to intervene as a matter of right where the Fourth Circuit is silent

on the issue and other case law suggests that intervention is desirable to dispose of

as much of a controversy as is possible with as many concerned persons as is

compatible with efficiency and due process.

Id., citing Feller v. Brock, 802 F.2d 722, 729 (4th

Cir. 1986).

In any case, it is clear that each of the JW Intervenors possesses an interest strong

enough to confer Article III standing.2 Thus, no matter how the relevant standard is

framed, the JW Intervenors have a protectable interest within the meaning of Rule 24.

Merrill has standing. In 2012 she ran for County Commissioner of Buncombe

County and lost a very close election. She alleges that this loss was due to same-day

registration during early voting and to improperly cast ballots. Merrill Decl., 19.

Merrill has made concrete plans to run again for that office in 2014 and has taken steps to

make that happen. Id., 16. Any ruling from this Court reversing the repeal of same-day

registration during early voting or enjoining the enforcement of North Carolinas photo

ID law, would impair or impede Merrills interests, including her immediate electoral

prospects for 2014. Id., 20.

2For Article III standing, a party must have suffered an injury in fact, there must be acausal connection between the injury and the conduct complained of, and it must be

likely, as opposed to merely speculative, that the injury will be redressed by a favorable

decision. Cooksey v. Futrell, 721 F.3d 226, 234-5 (4thCir. 2013), citingLujan v. Def. of

Wildlife, 504 U.S. 555, 560 (1992) (citations and internal quotation marks omitted).

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Merrill is also a registered voter of the State of North Carolina. Id., 2. The law

repealing same-day registration during early voting and the photo ID law seek, among

other things, to prevent voter fraud. Where there is such fraud, North Carolina voters are

harmed by having their votes diluted. In considering Indianas photo ID law, the Court

of Appeals for the Seventh Circuit noted that [t]he purpose of the Indiana law is to

reduce voting fraud, and voting fraud impairs the right of legitimate voters to vote by

diluting their votes dilution being recognized to be an impairment of the right to vote.

Crawford v. Marion County Election Bd., 472 F.3d 949, 952 (7thCir. 2007), affd553

U.S. 181 (2008), citing, inter alia, Reynolds v. Sims, 377 U.S. 533, 555 (1964) (the right

of suffrage can be denied by a debasement or dilution of the weight of a citizens vote

just as effectively as by wholly prohibiting the free exercise of the franchise). North

Carolinas voters, including Merrill, are threatened with the same kind of injury.

Moreover, the harm inflicted on these voters exists independently of any proven fraud,

and goes beyond any strictly numerical diminution in the efficacy of their votes. As the

Supreme Court has observed:

Confidence in the integrity of our electoral processes is essential to the functioning

of our participatory democracy. Voter fraud drives honest citizens out of the

democratic process and breeds distrust of our government. Voters who fear their

legitimate votes will be outweighed by fraudulent ones will feel disenfranchised.

Purcell v. Gonzalez, 549 U.S. 1, 4 (2006); see Crawford v. Marion County Election Bd.,

553 U.S. 181, 197 (2008) (aside from the States interest in preventing voter fraud,

public confidence in the integrity of the electoral process has independent significance,

because it encourages citizen participation in the democratic process.). Thus, both as a

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candidate for local office and as a voter, Merrill can demonstrate that she has Article III

standing. Cooksey,721 F.3d at 234-5.

JW can establish associational standing on behalf of its members. An

association may assert standing to sue for its members when

(a) its members would otherwise have standing to sue in their own right; (b) the

interests it seeks to protect are germane to the organizations purpose; and (c)

neither the claim asserted nor the relief requested requires the participation of

individual members in the lawsuit.

Lane v. Holder, 703 F.3d 668, 675 n.6 (4th

Cir. 2012) (citation omitted).

In this case, JW has 7,260 North Carolina members, 143 of whom specifically

identified themselves as registered voters and expressed personal support for this lawsuit.

Fitton Dec., 18. Each member of JW who is a registered North Carolina voter would

have individual standing to sue, like Merrill, for vote dilution occasioned by fraud that

could have been deterred or prevented by one or more of the challenged voting

procedures in this case. They also would have standing based on the fear that their

legitimate votes will be outweighed by fraudulent ones and on their sense of

disenfranchisement. Purcell, 549 U.S. at 4.

Indeed, in an ongoing lawsuit commenced in Indiana, the court found that JW had

established standing based on voters loss of confidence in the integrity of elections. The

claims inJudicial Watch, Inc. v. King, Cause No. 1:12-cv-800 (S.D. In., Dec. 10, 2012),

concerned the states failure to conduct the voter list maintenance required by federal

law. The court found that JW had established associational standing by alleging that its

members who are registered to vote in Indiana are injured by Indiana's failure to comply

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with [federal] list maintenance requirements because that failure undermin[es] their

confidence in the legitimacy of the elections held in the State of Indiana and thereby

burden[s] their right to vote. Id.at *12-13 (citing Purcell, Reynolds, and Crawford).

These concerns are related to the core purposes of JW, which are to promote

integrity, transparency, and accountability in government and fidelity to the rule of law

purposes it pursues by litigating voter integrity claims and lawsuits. Litigating these

issues does not, however, require the participation of the individual members of JW.

Accordingly, JW can establish associational standing.

JW also has standing in its own right as an organization. Organizational standing

involves the same inquiry as in the case of an individual. Lane, 703 F.3d at 674. An

organization may suffer an injury in fact when [another partys] actions impede its efforts

to carry out its mission. Id., citingHavens Realty Corp. v. Coleman, 455 U.S. 363, 379

(1982) (standing may be based on a concrete and demonstrable injury to the

organization's activities [and] the consequent drain on the organization's resources).

JW can assert organizational standing for two reasons. First, JW specializes in

making document requests under the Freedom of Information Act (FOIA) and state

equivalents, and is one of the leading FOIA requesters and litigators in the nation. Fitton

Decl., 5. In its complaint, the United States has asked that North Carolina be barred,

pursuant to Section 3(c) of the VRA, from implementing any change affecting voting

until it is either (1) precleared by the Attorney General or (2) approved by this Court.

Complaint, 93-94; Prayer for Relief, 5.

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The involvement of the United States in approving North Carolinas changes

relating to voting would immensely complicate the process of obtaining voting-related

public documents from (or about) that jurisdiction. Fitton Decl., 6. An example will

make this more concrete. If, at present, North Carolina made or contemplated a change

in its voting laws and communicated with attorneys in its employ about that change,

those communications would be available for inspection under North Carolinas generous

public records law, N.C.GEN.STAT. 132-1. If, however, the United States prevails,

and all voting changes in North Carolina had to be either precleared by the Justice

Department or approved by this Court, those same communications might fall within an

exemption concerning the prosecution, defense, settlement or litigation of any judicial

action, or any administrative or other type of proceeding, and might be withheld. N.C.

GEN.STAT. 132-1.1(a); see also 5 U.S.C. 552(b)(5) (FOIA exemption concerning

litigation privileges). This outcome would frustrate JWs core mission. Even an

improper claim of exemption on such a basis would compel JW to expend resources to

challenge that claim in court. Such injuries are sufficient to confer organizational

standing on JW. SeeHaven, 455 U.S. at 379.

Second, JW expends organizational resources in pursuit of its mission to ensure

that voter rolls are current and accurate. Fitton Decl., 8-10. The repealed electoral

practices that the United States seeks to reinstate will degrade the accuracy of state

registration lists. For example, same-day registration does not have the checks on

accuracy including, for example, the simple expedient of a subsequent mailing to the

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address listed on a registration form of North Carolinas current law. Id., 11. The

absence of a photo ID requirement increases the risk of a fraudulent vote, which in turn

can foul the registration list in a number of ways by, for example, incorrectly

confirming a voters active status. Id., 11-12. Such inaccuracies cause JW to incur

additional expenses in researching and validating the accuracy of those lists. This drain

on JWs limited resources will impair its ability to carry out its public mission. Id., 9,

13-14. See Judicial Watch, Inc., Cause No. 1:12-cv-800 at *15-16 (similar allegations

afforded standing to an organization that monitored states list maintenance).

In conclusion, both Merrill and JW can readily establish Article III standing. Yet,

as noted above, the Fourth Circuit does not presently require such a showing to establish

an interest under Rule 24(a)(2). NAACP,No. 7:88-CV-00005 at *9-11. A fortiori, the

JW Intervenors can establish the required, lesser showing of a protectable interest.

c. Existing Parties Will Not Adequately Represent the JW Intervenors.Ordinarily, the burden of showing that existing parties will not adequately

represent a proposed intervenor is minimal. SeeVirginia v. Westinghouse Elec. Corp.,

542 F.2d 214, 216 (4th Cir. 1976), citing Trbovich v. United Mine Workers, 404 U.S.

528, 538 n.10 (1971). Moreover, the movant need not show that the representation by

existing parties will definitely be inadequate in this regard. . . . Rather, he need only

demonstrate that representation of his interest may be inadequate. JLS, Inc. v. PSC

of W. Va., 321 F. Appx. 286, 289 (4th

Cir. 2009), citing Trbovich.

Two presumptions may potentially alter this burden. First, [w]hen the party

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seeking intervention has the same ultimate objective as a party to the suit, a presumption

arises that its interests are adequately represented, against which a proposed intervenor

must demonstrate adversity of interest, collusion, or nonfeasance. Virginia, 542 F.2d at

216. But this demonstration is not burdensome. Rather, to overcome the presumption,

the intervenor need only offer an adequate explanation as to why it is not sufficiently

represented by the named party. B. Fernandez & Hnos., Inc. v. Kellogg USA, Inc., 440

F.3d 541, 546 (1stCir. 2006) (citation omitted); Canadian Nat'l Ry. Co. v. Montreal,

Me.& Atlantic Ry. Inc., CV-10-452-B-W, *18 (D. Me., Nov. 17, 2010) (This

presumption creates a low hurdle, citingB. Hernandez); see also JLS, Inc., 321 F.

Appx. at 289 (citing presumption but then describing burden as minimal). Second, if

an existing party is also a government agency, a more exacting showing of inadequacy

should be required . . . Stuart v. Huff, 706 F.3d 345, 351 (4th

Cir. 2013). Where

movants both share the same ultimate objective as the existing defendants and . . . those

defendants are represented by a government agency . . . the putative intervenor must

mount a strong showing of inadequacy. Id.at 352. This presumption acknowledges that

it is the governments basic duty to represent the public interest. Id.at 351.

Courts also have noted, however, the ways in which the governments interest

often diverges from that of private litigants. Most obviously, although the government

represents the broadest possible public interest, that interest is itself composed of a

multiplicity of smaller interests, and often the government is not able to adequately

represent each of these. In Cooper Techs., Co. v. Dudas, 247 F.R.D. 510 (E.D. Va.

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2007), the U.S Patent Office and a proposed intervenor, T&B, both sought to uphold the

same definition of the statutory term original application, which the plaintiff had

challenged. In granting T&B intervention of right, the court observed:

Although the Government and T&B both have an interest in seeing the present

definition of original application upheld, it is arguably for different reasons, one

narrow and one broad, that might foreseeably dictate different approaches to the

litigation. Therefore, it is proper to find that the Government does not adequately

represent the interest of T&B. . . . When a party to an existing suit must represent

multiple and distinct interests, those multiple interests may dictate a different

approach to the litigation, and a party representing one of those interests

exclusively should be allowed to intervene.

Id. at 515 (citations omitted); see also Feller v. Brock, 802 F.2d 722, 730 (4thCir. 1986)

(finding that Department of Labor had interests adverse to intervenor, but noting further

that even if DOL agreed with the [intervenor] on the merits, the governments position

is defined by the public interest, as well as the interests of a particular group of citizens).

i. Only the JW Intervenors Will Insist Upon an AppropriateCausal Link Between a Practice Challenged Under Section 2 andAny Asserted Discriminatory Result.

Section 2 of the VRA proscribes both (1) voting practices motivated by a

discriminatory intent, and (2) those that lead to a discriminatory result that is, voting

practices that operate, designedly or otherwise, to deny equal access to any phase of

the electoral process for minority group members. United States v. Charleston County,

365 F.3d 341, 345 (4th

Cir. 2004). The United States has asserted both kinds of claims in

its complaint.

One of the issues of law that is critical to resolving this action concerns what a

plaintiff must prove to establish a Section 2 claim alleging a discriminatory result. The

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United States complaint plainly contemplates a simple statistical showing of

disproportionate impact in other words, a showing that the provisions of HB 589

generally affect different racial groups in different degrees. This approach pervades the

relevant portions of the complaint. E.g., Doc. No. 1, 29-30, 37-38, 42, 50, 69-76, 97-

98. Although the complaint contains broad historical allegations, there is no effort to

connect causally the actual enforcement of the challenged voting procedures of HB 589

to any adverse result harming the voting rights of minority voters. See id., 16-22, 79.

A number of courts have rejected a 2 challenge based purely on a showing of

some relevant statistical disparity between minorities and whites, unless there also is

evidence that the challenged qualification causes that disparity. Gonzalez v. Ariz., 677

F.3d 383, 405 (9th

Cir. 2012), affd,Arizona v. Inter Tribal Council of Ariz., Inc., 133 S.

Ct. 2247 (2013). That case is illuminating. Despite findings that Latinos had suffered a

history of discrimination . . . socioeconomic disparities . . . [and] racially polarized

voting, the claim still failed because there was no proof of a causal relationship

between [the challenged] Proposition 200 and any alleged discriminatory impact on

Latinos. Id.at 406; see Irby v. Virginia State Board of Elections, 889 F.2d 1352, 1359

(4th Cir. 1989) (upholding rejection of Section 2 claim in the absence of a causal link

between the [challenged] appointive system and black underrepresentation);Brown v.

Detzner, 895 F. Supp. 2d 1236, 1250 n.14 (M.D. Fla. 2012) (citing similar cases).

Defining and then implementing the proper standard is not an esoteric issue, of

interest only to lawyers. It is a matter directly affecting the Equal Protection rights of the

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JW Intervenors as is true of any effect or result or impact test based on race. In

discussing a Title VII claim, Justice Scalia noted that

disparate-impact provisions place a racial thumb on the scales, often requiring

employers to evaluate the racial outcomes of their policies, and to make decisions

based on (because of) those racial outcomes. That type of racial decisionmaking is,

as the Court explains, discriminatory.

Ricci v. DeStefano, 557 U.S. 557, 594 (2009) (Scalia, J., concurring); see also Mt. Holly

Gardens Citizens in Action, Inc. v. Twp. of Mt. Holly, 658 F.3d 375, 381 (3rd

Cir. 2011),

cert. dismissed, 2013 U.S. LEXIS 8414 (2013) (discussing risks associated with disparate

impact claims under the Fair Housing Act).

The JW Intervenors plan to defend their own Equal Protection rights by properly

defining the Section 2 results standard. The named defendants, on the other hand, who

can prevail in a number of ways, are not, apparently, raising this issue. None of the

North Carolina defendants have made this point as a defense in any of the threeanswers

they have filed in response to this and two similar lawsuits.3

This is not a mere difference in tactics. Rather, the JW Intervenors and the

defendants have different interests. See Bragg v. Robertson, 183 F.R.D. 494, 496 (W.

Va. 1998) (though Movants and the [defendants] have the same ultimate objective,

intervention was granted, in part because Movants raise a defense not raised in the

[defendants] Answer . . . that the relief sought by Plaintiffs constitutes an unconstitutional

taking.); see alsoOhio River Valley Envtl. Coalition, Inc. v. Salazar, Civil Action No.

3See Doc. No. 19;N.C. State Cfc. of the NAACP v. McCrory, No.1:13-cv-658, Doc. No.24;League of Women Voters of N.C. v. State of N.C., No. 1:13-cv-660, Doc. No. 26.

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3:09-0149, *4 (S.D. W. Va., June 18 2009) (even though an intervenor had the same

goals as a defendant, a difference in degree of interest could motivate . . . a more

vigorous defense, and this difference in vigor could unearth a meritorious argument

overlooked by the defendant); Canadian Natl Ry. Co.,CV-10-452-B-W at *18 (Adifference in kind or degree provides sufficient explanation for adversity of interest).

4

ii. Existing Parties Will Not Adequately Represent JWs Interest inFOIA.

JW is one of the leading submitters of FOIA requests in the nation. Fitton Decl.,

5. If the United States becomes involved in approving North Carolinas voting laws and

procedures, it will complicate the process of obtaining documents and make the State less

willing to cooperate. Id. As one example, documents that previously would have been

available on request would become subject to exemptions concerning litigation and

related privileges. SeeN.C.GEN.STAT. 132-1.1 (2013), 5 U.S.C. 552(b)(5). This

would frustrate JWs core mission and require it to litigate more frequently to obtain

documents. The existing defendants will not be concerned with vindicating JWs interest

in FOIA and public records requests. (In fact, government agencies are often hostile to

open records requests on account of the time and expense involved in responding.) Thus,

4

Indeed, even if it wished to, North Carolina would not have standing to assert the EqualProtection rights of the JW Intervenors for them. To bring a claim for a third party, alitigant must have suffered an injury in fact, must have a close relation to the third

party, and must show some hindrance to the third partys ability to protect its

interests. Powers v. Ohio, 499 U.S. 400, 410-11 (1991) (citation omitted). It is unclear

how North Carolina is injured by a violation of the Equal Protection rights of the JW

Intervenors; but even if it were, there is no close relationship between them, nor any

hindrance preventing the JW Intervenors from protecting their own rights.

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the defendants will not adequately represent JWs interest in FOIA matters.

iii. Existing Parties Will Not Adequately Represent JWs Interest inMaintaining Accurate Voter Rolls.

JW has an interest in maintaining the accuracy and integrity of voter rolls across

the nation, including those in North Carolina. In this action, JW will seek to emphasize

that the repealed electoral laws that the United States seeks to reinstate would make JWs

job harder and require the dedication of additional resources to accomplish it.

Accordingly, JW will seek to show that the potential for various kinds of electoral fraud

is greater where registration lists are made less accurate by same-day registration during

early voting, out-of-precinct voting, or the absence of photo ID. Fitton Decl., 11-12.

This is not the kind of showing that the State is likely to make with any vigor (or at all).

Such admissions would not only embarrass North Carolina, they might affect its legal

liability under Section 8 of the National Voter Registration Act, 42 U.S.C. 1973gg-6,

which requires states to conduct certain kinds of voter list maintenance. Fitton Decl.,

15. Thus, the defendants will not adequately represent JWs interest in list maintenance.

II. The JW Intervenors Should be Granted Permissive Intervention.Under Fed. R. Civ. P. 24(b), permissive intervention is appropriate where (1) the

application is timely; (2) the moving partys . . . defense and the main action have a

common question of law or fact; and (3) the proposed intervention will not unduly delay

or prejudice the adjudication of the original parties rights. Bussian v. DaimlerChrysler

Corp., 411 F. Supp. 2d 614, 631 (M.D.N.C. 2005). As set forth above, the JW

Intervenors have identified a number of common questions of law and fact concerning,

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for example, the need for the reforms contained in HB 589 and the harms they will suffer

if these are reversed. In addition, this motion is clearly timely, and comes early enough

that it will not delay or prejudice the adjudication of the original parties rights.

Indeed, this motion presents an unusually strong case for permissive intervention.

As explained above, the Justice Departments lawsuit against North Carolina was widely

anticipated. In fact, both the NAACP (whose State Conference is the plaintiff in a related

lawsuit) and the ACLU (which is acting as the plaintiffs attorney in the other) attended a

White House briefing in July 2013. Fitton Decl., 23. At that briefing, the attendees

either were told, or were left to conclude, that a lawsuit by the United States against

North Carolina was imminent. Id., 24. Once HB 589 was signed, they and other

private organizations and individuals immediately commenced their lawsuits.

As a result, once the United States commenced this action, it was all but inevitable

that it would be consolidated with these other actions for some or all purposes. In further

consequence, these private organizations, which share many policy aims, orientations,

and goals, will find themselves aligned in the same action, and on the same side, as the

United States, without having to seek to intervene or to meet the standards ordinarily

imposed upon private intervenors.

The addition of the JW Intervenors will help to equalize the presentation of

pertinent facts and legal arguments between the plaintiffs and the defendants, while

adding to the arguments the defendants will make. The JW Intervenors respectfully

submit that their efforts as parties will add to the development of a complete and

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balanced record. See VMI Found. v. Thornburgh, Civil Action No. 90-0084-R, 90-0126-

R, *11 (W.D. Va., Nov. 2, 1990) (VMI Foundation has stated that it intends to present

different legal arguments than VMI, and that it will not impede speedy resolution of this

case. Presentation of all possible legal arguments will be helpful to this Court.).

Moreover, district courts have regularly permitted intervention in voting rights cases,

including those in which the United States or another governmental entity has been a

party. See, e.g., County Council v. United States, 555 F. Supp. 694, 697 (D.D.C. 1983)

(granting intervention where local perspective on the current and historical facts at issue

could be enlightening); Shaw v. Hunt, 861 F. Supp. 408, 420 (E.D.N.C. 1994); Vera v.

Richards, 861 F. Supp. 1304, 1310 (S.D. Tex. 1994);Miller v. Blackwell, 348 F. Supp. 2d

916, 919 n.3 (S.D. Ohio 2004);Miller v. Johnson, 515 U.S. 900, 909 (1995);Abrams v.

Johnson, 521 U.S. 74, 78 (1997). See also Texas v. Holder, No. 1:12-cv-00128, Doc. No.

6 (Attorney Generals Response To Motion to Intervene, acknowledging liberal grants of

permissive intervention in VRA lawsuits and identifying cases).

Conclusion

For the foregoing reasons, the JW Intervenors respectfully request that their

motion to intervene be granted.

Dated: December 10, 2013. JOHNSON LAW FIRM,P.A.

By: /s/ Gene B. Johnson _

Gene B. Johnson

State Bar No. 15917

P.O. Box 1288

Arden, North Carolina 28704

Telephone: (828) 650-0859

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Facsimile: (828) 650-0913

Email:[email protected]

Robert D. Popper

New York Bar No. 2357275JUDICIAL WATCH,INC.

425 Third Street, SW

Washington, D.C. 20024

Telephone: (202) 646-5173

Facsimile: (202) 646-5199

Email: [email protected]

(appearing pursuant to Local Rule

83.1(d))

H. Christopher CoatesSouth Carolina Bar No. 80853

LAW OFFICE OF

H.CHRISTOPHER COATES

934 Compass Point

Charleston, South Carolina 29412

Telephone:(843) 609-7080

Email:[email protected]

(appearing pursuant to Local Rule

83.1(d))

Attorneys for Defendant-Intervenors

Christina K. Gallegos-Merrill and

Judicial Watch, Inc.

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mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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CERTIFICATE OF SERVICE

I hereby certify that on this 10thday of December, 2013, I transmitted the

foregoing document to the named parties emails by means of an electronic filing

pursuant to the ECF system.

/s/ Gene B. Johnson _

Gene B. Johnson

NC Memo of Law - Intervention - As Filed

Documents

Transcript of NC Memo of Law - Intervention - As Filed