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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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22
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
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