League of Women Voters of Mich. v. Ruth Johnson

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0194p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

LEAGUE OF WOMEN VOTERS OF MICHIGAN; ROGER J. ┐
BRDAK; FREDERICK C. DURHAL, JR.; JACK E. ELLIS; │
DONNA E. FARRIS; WILLIAM “BILL” J. GRASHA; ROSA │
L. HOLLIDAY; DIANA L. KETOLA; JON “JACK” G. │
LASALLE; RICHARD “DICK” W. LONG; LORENZO │
RIVERA; RASHIDA H. TLIAB, │
Plaintiffs-Appellees, │
│
> No. 18-1437
v. │
RUTH JOHNSON, in her official capacity as Michigan │
Secretary of State, │
│
Defendant, │
│
JACK BERGMAN; BILL HUIZENGA; JOHN MOOLENAAR; │
FRED UPTON; TIM WALBERG; MIKE BISHOP; PAUL │
MITCHELL; DAVID TROTT, Republican Congressional │
Delegation, │
Proposed Intervenors-Appellants. │
┘

Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:17-cv-14148—Eric L. Clay, Circuit Judge; Denise Page Hood, Chief District Judge;
and Gordon J. Quist, District Judge.*

Argued: August 1, 2018

Decided and Filed: August 30, 2018

Before: SILER, MOORE, and GRIFFIN, Circuit Judges.

*Pursuant to 28 U.S.C. § 2284, the United States Court of Appeals for the Sixth Circuit designated Judge
Eric L. Clay and Judge Gordon J. Quist to serve with Chief Judge Denise Page Hood in this matter.
 No. 18-1437 League of Women Voters of Mich., et al. v. Johnson, et al. Page 2

_________________

COUNSEL

ARGUED: Jason Brett Torchinsky, HOLTZMAN VOGEL JOSEFIAK TORCHINSKY,
Warrenton, Virginia, for Appellants. Ryan M. Hurley, FAEGRE BAKER DANIELS LLP,
Indianapolis, Indiana, for Appellees. ON BRIEF: Jason Brett Torchinsky, HOLTZMAN
VOGEL JOSEFIAK TORCHINSKY, Warrenton, Virginia, Brian D. Shekell, CLARK HILL,
Detroit, Michigan, for Appellants. Joseph H. Yeager, Harmony Mappes, Jeffrey P. Justman,
Matthew K. Giffin, FAEGRE BAKER DANIELS LLP, Indianapolis, Indiana, Mark Brewer,
GOODMAN ACKER P.C., Southfield, Michigan, for Appellees.

SILER J., delivered the opinion of the court in which GRIFFIN, J., joined. MOORE, J.
(pp. 11–15), delivered a separate dissenting opinion.

_________________

OPINION
_________________

SILER, Circuit Judge. In this suit, Democratic voters from Michigan and a nonpartisan
voting-rights organization allege that the state’s congressional and legislative districts are
unconstitutionally gerrymandered in favor of Republicans. Eight Republican Congressmen from
Michigan moved to intervene, seeking to defend the lawfulness of the state’s apportionment
schemes. The three-judge district court panel denied the Congressmen’s motion, finding they
were not entitled to intervene as a matter of right (under Rule 24(a)) or with the court’s
permission (under Rule 24(b)). Because the district court abused its discretion by denying
permissive intervention, we REVERSE and REMAND.

I.

Following the 2010 census, Michigan’s Republican-controlled government created and
enacted new legislative and congressional districting plans. Plaintiffs allege the district maps
violate the Equal Protection Clause by diluting the voting power of Democratic voters in
Michigan. Specifically, they claim the district lines “pack” some Democratic voters “into a few
supermajority districts” and “crack[]” other Democratic voters “into a large number of districts
where [Republicans] can command a safe but more modest majority of the vote.” The result,
Plaintiffs say, is a scheme that “destroys fair and effective representation, minimizing
 No. 18-1437 League of Women Voters of Mich., et al. v. Johnson, et al. Page 3

[Democratic] voters’ ability to influence elections and to have a fair chance to affect the political
process.” Plaintiffs also claim the apportionment plan “violates the First Amendment because it
intentionally diminishes and marginalizes the votes of [Democrats] . . . based on party
affiliation.” If left unchanged, the current maps will remain in effect through 2020.

Plaintiffs brought suit in December 2017 against the Michigan Secretary of State, Ruth
Johnson, “the ‘chief election officer’ . . . responsible for the conduct of Michigan elections.”
They ask the three-judge district court to declare the current district maps unconstitutional and to
enjoin Johnson from allowing any state or federal representatives to be elected or nominated
based on those maps in the 2020 election cycle.

In January 2018, Johnson moved to dismiss the suit for lack of standing. She also asked
the district court to stay the case pending the Supreme Court’s decision in two then-pending
redistricting cases, Gill v. Whitford, 138 S. Ct. 1916 (2018), and Benisek v. Lamone, 138 S. Ct.
1942 (2018).

In February, while the district court’s decision on Johnson’s motion was pending, eight
Republican Congressional representatives from Michigan moved to intervene. The
Congressmen pursued both intervention of right under Federal Rule of Civil Procedure 24(a) and
permissive intervention under Rule 24(b). They argued that they stood “to be irrevocably
harmed by any redrawing of congressional districts” and asserted that none of the original parties
to the action adequately represented their interests. Attached to the Congressmen’s motion to
intervene were two proposed motions, one to dismiss and one to stay. Johnson supported the
Congressmen’s motion to intervene, but Plaintiffs did not.

In March, while the Congressmen’s motion to intervene was being briefed, the district
court denied Johnson’s motion to stay. Recognizing that “[v]oting rights litigation is notoriously
protracted” and that a remedial plan would have to be in place by March 2020 if Plaintiffs
succeeded, the court found there was “a fair possibility that a stay would prejudice Plaintiffs as
well as the public interest.”

In April, the district court denied the Congressmen’s motion to intervene. As to
intervention of right, the district court found that the Congressmen’s asserted interests—
 No. 18-1437 League of Women Voters of Mich., et al. v. Johnson, et al. Page 4

protecting their relationships with constituents and avoiding spending money to learn about new
districts—were “not materially distinguishable from the generalized interest shared by all
citizens.” The court held that the Congressmen’s “legitimate, generalized interest in this
litigation will be adequately represented by [Johnson’s] interest in protecting the current
apportionment plan and other governmental actions from charges of unconstitutionality.” As to
permissive intervention, the court found that “the complex issues raised by the parties, the need
for expeditious resolution of the case, and the massive number of citizens who share the
[Congressmen’s] interest” weighed against intervention because “granting the [Congressmen’s]
motion to intervene could create a significant likelihood of undue delay and prejudice to the
original parties.” This interlocutory appeal followed.

II.

As a threshold matter, we have jurisdiction to entertain the Congressmen’s appeal.
Ordinarily, “an order completely denying intervention is immediately reviewable by way of an
interlocutory appeal.” Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989). Of course, this is no
ordinary case; because Plaintiffs’ action “challeng[es] the constitutionality of the apportionment
of congressional districts,” this appeal comes to us from a three-judge district court panel. 28
U.S.C. § 2284(a). In such cases, the parties “may appeal to the Supreme Court from an order
granting or denying . . . an interlocutory or permanent injunction.” 28 U.S.C. § 1253. The
Supreme Court interprets § 1253 to extend to orders that have “the ‘practical effect’ of granting
or denying an injunction.” Abbot v. Perez, 138 S. Ct. 2305, 2319 (2018).

The order from which the Congressmen appeal does not have such an effect. The district
court barred the Congressmen from defending Michigan’s current apportionment plans; it did not
rule upon the Plaintiffs’ constitutional challenge to the merits of those plans. That challenge is
still ongoing below, and Plaintiffs’ request for injunctive relief remains pending. Therefore,
§ 1253 does not deprive us of jurisdiction. Cf. Hays v. Louisiana, 18 F.3d 1319, 1321 (5th Cir.
1994) (appeal of three-judge district court’s denial of intervention “very likely was properly
before” the Fifth Circuit before the court ruled on the merits).
 No. 18-1437 League of Women Voters of Mich., et al. v. Johnson, et al. Page 5

III.

Here, as below, the Congressmen claim they are entitled to both intervention of right and
permissive intervention. Because the Congressmen are entitled to permissive intervention, we
address only those arguments.

Federal Rule of Civil Procedure 24(b)(1) provides that, “On timely motion, the court may
permit anyone to intervene who . . . has a claim or defense that shares with the main action a
common question of law or fact.” In deciding whether to allow a party to intervene, “the court
must consider whether the intervention will unduly delay or prejudice the adjudication of the
original parties’ rights.” Fed. R. Civ. P. 24(b)(3). “So long as the motion for intervention is
timely and there is at least one common question of law or fact, the balancing of undue delay,
prejudice to the original parties, and any other relevant factors is reviewed for an abuse of
discretion.” Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1248 (6th Cir. 1997).

The parties agree the Congressmen’s motion to intervene was timely. Further, the
Congressmen’s motion made clear that they intended to raise common questions of law and fact.
In their proposed motion to dismiss, the Congressmen argued (among other things) that Plaintiffs
lacked standing to challenge Michigan’s districting plans. This was the same argument that
Johnson had previously raised in her own motion to dismiss. So the only remaining question is
whether the district court abused its discretion in finding that the Congressmen’s intervention
“could create a significant likelihood of undue delay and prejudice to the original parties.”

It did. At the outset, “[t]hough the district court operates within a ‘zone of discretion’
when deciding whether to allow intervention under Rule 24(b), the district court nevertheless
‘must, except where the basis for the decision is obvious in light of the record, provide enough of
an explanation for its decision to enable [us] to conduct meaningful review.’” Kirsch v. Dean,
733 F. App’x 268, 279 (6th Cir. 2018) (quoting Miller, 103 F.3d at 1248). Here, with respect to
permissive intervention, the district court observed only that there was a risk of delay and
prejudice in light of three factors: “the complex issues raised by the parties, the need for
expeditious resolution of the case, and the massive number of citizens who share the
[Congressmen’s] interest in this litigation.” But the court did not explain how the “complex
 No. 18-1437 League of Women Voters of Mich., et al. v. Johnson, et al. Page 6

issues” would delay the case or prejudice Plaintiffs. It did not explain how allowing the
Congressmen to intervene would frustrate an expeditious resolution. And it did not explain how
the shared interests of the Congressmen and the citizens of Michigan were relevant to the delay-
and-prejudice calculus. Thus, it is a challenge for us to conduct meaningful review on the
permissive intervention issue based upon the district court’s bare-bones order.

More to the point, though, none of the three factors cited by the district court actually
weigh against permissive intervention. First, at the time the district court denied the
Congressmen’s motion, the legal issues in the case were not particularly novel or complex.
Johnson had moved to stay the case pending the Supreme Court’s decisions in Gill and Benisek
and had moved to dismiss based upon Plaintiffs’ alleged lack of standing. To that, the
Congressmen proposed to add three issues: the justiciability of Plaintiffs’ claims, the legitimate
state interests justifying Michigan’s current districting maps, and the doctrine of laches. While
these issues do not arise in every case, they are common in redistricting cases. See, e.g., Raleigh
Wake Citizen’s Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333, 348 & n.9 (4th Cir. 2016)
(justiciability); Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1307-10 (2016)
(state interest); Sanders v. Dooly Cty., 245 F.3d 1289, 1291 (11th Cir. 2001) (per curiam)
(laches).

Indeed, once the district court worked through the standing issue—which it eventually
did, holding that Plaintiffs had standing to challenge Michigan’s apportionment plan on a
district-by-district, but not statewide, basis—the next natural question was whether Plaintiffs’
partisan gerrymandering claims were in fact justiciable. The Supreme Court has never
definitively answered this question, and specifically avoided it in Gill, opting instead to remand
for further consideration of the plaintiffs’ standing. 138 S. Ct. at 1929, 1934. And, had the
district court found Plaintiffs’ claims justiciable, it would have almost certainly had to address
Michigan’s interest in maintaining its districting scheme, and may have also had to address the
laches defense. Thus, the new issues that would have arisen had the Congressmen been allowed
to intervene would likely have arisen anyway during the natural course of the litigation.

Second, there was little risk that allowing the Congressmen to intervene would have
interfered with the court’s ability to reach an expeditious resolution. Because many of the
 No. 18-1437 League of Women Voters of Mich., et al. v. Johnson, et al. Page 7

Congressmen’s defenses overlapped with Johnson’s, adding the Congressmen would not have
placed any unnecessary or unexpected burden upon the district court. The court could have
disposed of both motions to dismiss in the same opinion. The same logic applies to Plaintiffs—
because the issues were identical, Plaintiffs’ responsive arguments to Johnson and the
Congressmen would likely have been identical as well.

On this point, Plaintiffs’ main objection is that injecting the Congressmen (and their
attorney) into the case “will almost surely lead to more discovery fights, more evidentiary issues,
longer trial testimony, and other case complexities that are lacking with just one defendant.”
They correctly point out that, if allowed to intervene, the Congressmen intend to re-litigate the
standing issue already decided by the district court in light of Gill.

This argument misapprehends the nature of the question before us. We are not called to
decide whether it would be an abuse of discretion for the district court to deny permissive
intervention as the case currently stands. Rather, our question is whether it was an abuse of
discretion for the district court to deny permissive intervention as the case stood in February
2018, when the Congressmen moved to intervene. At that time, no scheduling order was in place
and discovery had not yet begun. The district court had not ruled on Johnson’s motion to stay or
her motion to dismiss. Put simply, the case was in its infancy. If the Congressmen had been
allowed to intervene from the outset, they would have been allowed input into scheduling
matters, and duplicative discovery and motion practice would have been unnecessary. Any delay
attributable to the Congressmen’s presence in the case would have been minimal at best,
especially since they are all represented by the same attorney.

We fully recognize that allowing the Congressmen to intervene at this stage will require
the district court to adjust the discovery and dispositive motion deadlines currently in place. And
perhaps the trial, currently set for February 2019, will have to be pushed back as well. But again,
this delay would not have occurred if the district court had allowed the Congressmen to intervene
when they asked. And, even if the trial must be delayed, we are confident that the parties and the
court can resolve this case before the March 2020 deadline.
 No. 18-1437 League of Women Voters of Mich., et al. v. Johnson, et al. Page 8

Third, the Congressmen’s interest in this litigation is different than that of Michigan’s
citizenry at large or its Secretary of State. This question is more pertinent to intervention of
right. See Fed. R. Civ. P. 24(a)(2). Still, we have recognized that identity of interest is one of
several “relevant criteria” under Rule 24(b), Coal. to Defend Affirmative Action v. Granholm,
501 F.3d 775, 784 (6th Cir. 2007), and “[t]he fact that [a proposed intervenor’s] position is being
represented counsels against granting permissive intervention,” Bay Mills Indian Cmty. v.
Snyder, 720 F. App’x 754, 759 (6th Cir. 2018).

Here, the Congressmen identify several interests they seek to protect by intervening, chief
among them “the relationship between constituent and representative.” We need not decide
whether these interests amount to “substantial legal interest[s]” to entitle them to intervention of
right, United States v. Michigan, 424 F.3d 438, 443 (6th Cir. 2005); it is enough to say, contrary
to the district court’s assertion, that the Congressmen’s interests differ from those of Johnson and
the citizens of Michigan.

Johnson, according to the district court, seeks to “provid[e] fair and smooth
administration of elections” and “protect[] the current apportionment plan and other
governmental actions from charges of unconstitutionality.” The contours of Michigan’s district
maps do not affect Johnson directly—she just ensures the maps are administered fairly and
accurately. In contrast, the contours of the maps affect the Congressmen directly and
substantially by determining which constituents the Congressmen must court for votes and
represent in the legislature.

The district court also found that the “citizens of Michigan share a generalized interest in
this litigation insofar as they have the right to vote, run for office, and otherwise participate in
the 2020 election.” In the Court’s view, the Congressmen’s interest in this litigation is “not
materially distinguishable from the generalized interest shared by all citizens.” Not so. As
elected representatives, the Congressmen “[s]erv[e] constituents and support[] legislation that
will benefit the district and individuals and groups therein.” McCormick v. United States,
500 U.S. 257, 272 (1991). The citizens of Michigan do not share this representative interest.
 No. 18-1437 League of Women Voters of Mich., et al. v. Johnson, et al. Page 9

Nor is it enough to say that, even though the Congressmen’s interests differ from those of
Johnson and the citizens of Michigan, their interests are still adequately protected by Johnson’s
participation in the case. As noted earlier, Johnson raised only Plaintiffs’ alleged lack of
standing in her initial motion to dismiss. In the Congressmen’s proposed motion to dismiss, they
added several defenses not mentioned by Johnson. This should have signaled to the district court
that the Congressmen intended to make sure all available defenses to the apportionment plans
were raised. True enough, Johnson eventually filed an answer in which she pleaded essentially
the same defenses urged by the Congressmen. But her answer did not come until after the
district court had denied the Congressmen’s motion to intervene. Therefore, Johnson’s answer
could not have played a part in the district court’s decision, and the court could not have known
that Johnson’s defenses would be the same as the Congressmen’s.

We also note that the upcoming elections will bring about change in Michigan’s state
government. Johnson, having served two terms as Secretary of State, is not eligible to run for re-
election. If the new Secretary takes office in January 2019 and decides not to further pursue the
state’s defense of its apportionment schemes, the district court will have to appoint someone to
take the Secretary’s place. And if that occurs, the Congressmen’s case for intervention would be
even stronger, since no other party in the case would be seeking to uphold the district maps.

We do not suggest that the uncertainty surrounding the upcoming election for Michigan
Secretary of State, standing alone, entitles the Congressmen to intervene now, since we do not
typically allow intervention based upon “what will transpire in the future.” Michigan, 424 F.3d
at 444 (emphasis removed). We merely point out that any delay attributable to allowing the
Congressmen to intervene now is surely less than the delay that will occur if the Congressman
must intervene in January 2019. Under these unique circumstances, where timeliness is a
particularly weighty concern, allowing intervention now may very well prove more efficient for
all involved.

Finally, we decline to affirm on the independent ground that the Congressmen failed to
satisfy Rule 24(c) because they did not attach to their motion “a pleading that sets out the claim
or defense for which intervention is sought.” We “take[] a lenient approach to the requirements
of Rule 24(c),” and Plaintiffs identify no “prejudice [that] would result from granting the motion
 No. 18-1437 League of Women Voters of Mich., et al. v. Johnson, et al. Page 10

to intervene despite the failure to attach a pleading.” Providence Baptist Church v. Hillandale
Comm., Ltd., 425 F.3d 309, 314 (6th Cir. 2005).

IV.

When a motion for permissive intervention under Rule 24(b) is timely, the decision is left
to the discretion of the district court. Miller, 103 F.3d at 1248. But “[t]he existence of a zone of
discretion does not mean that the whim of the district court governs.” Id. Here, the district court
provided only a cursory explanation of its reasons for denying permissive intervention, and what
little justification it did provide is unsupported by the record. This amounts to an abuse of
discretion, requiring us to REVERSE and REMAND to the district court for further proceedings.
 No. 18-1437 League of Women Voters of Mich., et al. v. Johnson, et al. Page 11

_________________

DISSENT
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KAREN NELSON MOORE, Circuit Judge, dissenting. The “abuse of discretion
standard of review is highly deferential.” Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 267
(6th Cir. 2001). “It is more than the substitution of the judgment of one tribunal for that of
another.” NLRB v. Guernsey-Muskingum Elec. Co-op., Inc., 285 F.2d 8, 11 (6th Cir. 1960). To
reverse a district court under this standard of review, we must conclude that the district court
“relie[d] on clearly erroneous findings of fact, applie[d] the wrong legal standard, misapplie[d]
the correct legal standard when reaching a conclusion, or ma[d]e a clear error of judgment.”
Reeb v. Ohio Dep’t of Rehab. & Corr., 435 F.3d 639, 644 (6th Cir. 2006). None of those errors
occurred here. Instead, the district court reasonably concluded that the Congressmen’s efforts to
intervene in this case could unduly interfere with plaintiffs’ efforts to litigate their claims and
denied the Congressmen’s motion for permissive intervention on that ground. As this decision
was not an abuse of discretion, I would affirm.

As the majority acknowledges, a district court “operates within a ‘zone of discretion’
when deciding whether to allow intervention under Rule 24(b).” Kirsch v. Dean, 733 F. App’x
268, 279 (6th Cir. 2018) (quoting Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1248 (6th
Cir. 1997)). “So long as the motion for intervention is timely and there is at least one common
question of law or fact,” the district court has significant leeway in balancing considerations “of
undue delay, prejudice to the original parties, and any other relevant factors.” Michigan State
AFL-CIO v. Miller, 103 F.3d 1240, 1248 (6th Cir. 1997). Though we generally require district
courts to explain the reasoning behind their discretionary decisions, we have also made clear that
prolonged discussion is not necessary “where the basis for the decision is obvious in light of the
record.” Id.

Here, the record contains ample support for the district court’s denial of the
Congressmen’s motion to intervene. As the district court explained in an earlier order denying
Johnson’s motion to stay the case, “[v]oting rights litigation is notoriously protracted,” and it was
critical that this case move quickly. R. 35 (Order at 2) (Page ID #613). If plaintiffs prevail on
 No. 18-1437 League of Women Voters of Mich., et al. v. Johnson, et al. Page 12

the merits, both parties agree that a remedial plan would need to be established by March 2020 to
be effective for the November 2020 election. Id. Yet, as the district court recognized, there
exists a real risk that this case cannot be resolved by that time even if it proceeds along its
regular course. Id. at 2–3 (Page ID #613–14). Despite the district court’s airing of these
concerns, the Congressmen nevertheless refused to “agree to not file duplicative briefs” or to
“confer with Defendants’ [sic] prior to filing any briefs.” R. 39 (Reply Br. in Support of Mot. to
Intervene at 7) (Page ID #653). Although the Congressmen offered “to abide by the discovery
plan now in effect,” id., this overture rings hollow, as no discovery schedule was in place at that
time. R. 53 (Case Mgmt. Order No. 1 at 1) (Page ID #939). Given the district court’s concerns
and the Congressmen’s representations—which are “obvious in light of the record,” see Miller,
103 F.3d at 1248—the district court had ample reason to conclude that intervention would
undercut “the need for expeditious resolution of the case.” See R. 47 (Order at 2) (Page ID
#903). Eight more defendants would mean more discovery, more motions, and more time.
Indeed, the district court’s decision seems prescient now, as the Congressmen have informed this
court that they plan to relitigate issues already decided by the district court if they are permitted
to intervene, see D.E. 24 (Letter dated June 18, 2016))—a maneuver that would surely slow
down the district-court proceedings. As district courts do not abuse their discretion by denying
intervention that “would unduly delay the adjudication of the original parties’ rights,” Vassalle v.
Midland Funding LLC, 708 F.3d 747, 760 (6th Cir. 2013), the district court’s decision was well
within the proper bounds.

Plainly, if the majority were reviewing the Congressmen’s motion in the first instance, it
would have reached a different conclusion. “[T]here was little risk that allowing the
Congressmen to intervene would have interfered with the court’s ability to reach an expeditious
resolution,” the majority asserts, because “many of the Congressmen’s defenses overlapped with
Johnson’s.” Maj. Op. at 6–7. As a purely factual matter, there was less overlap between the
Congressmen’s proposed pre-trial motions and Johnson’s than the majority suggests—a point the
Congressmen have taken pains to stress before this court. See Reply Br. at 23–24. But more
importantly, I do not see how the district court abused its discretion simply because it weighed
the potential overlap in defenses less heavily than the majority would have done. We usually
require a “definite and firm conviction that the trial court committed a clear error of judgment”
 No. 18-1437 League of Women Voters of Mich., et al. v. Johnson, et al. Page 13

before we reverse a district court for abuse of discretion. See Amernational Indus., Inc. v.
Action-Tungsram, Inc., 925 F.2d 970, 975 (6th Cir. 1991) (quoting Davis by Davis v. Jellico
Cmty. Hosp. Inc., 912 F.2d 129, 133 (6th Cir. 1990)). Here, the majority requires only that it
disagrees.

For the same reason, I reject the Congressmen’s suggestion that a recent order granting
different Congressmen’s motion for permissive intervention in a different gerrymandering case
before a different district court in a different jurisdiction ought to govern our review here. See
D.E. 33 (Rule 28(j) Letter, Appendix A) (citing Order, Ohio A. Philip Randolph Institute v.
Smith, No. 18-cv-357 (S.D. Ohio Aug. 16, 2018)). The core premise of abuse-of-discretion
review is that one court may exercise its discretion differently than another. “[J]ust because
some district courts have allowed [certain conduct] does not mean that it was an abuse of
discretion for the district court in this case not to follow suit.” United States v. One 2011
Porsche Panamera, 684 F. App’x 501, 508 (6th Cir. 2017).

Even apart from our deferential standard of review, the factual distinctions between Smith
and this case render the Congressmen’s reliance on Smith misplaced. In Smith, the proposed
intervenors repeatedly represented that they would not “delay the[] proceedings” or “disrupt the
case schedule,” and that they would “not need any prolonged discovery” and would “comply
with the discovery deadline.” Order, Ohio A. Philip Randolph Institute v. Smith, No. 18-cv-357
(S.D. Ohio Aug. 16, 2018), at 8 n.1 (citation omitted). Here, by contrast, the Congressmen have
made clear that they intend to reopen issues that have already been resolved, raise issues that
they believe have not yet been adequately addressed, and limit their cooperation and
coordination with Johnson. See D.E. 24 (Letter dated June 18, 2016)); Reply Br. at 23–24; R. 39
(Reply Br. in Support of Mot. to Intervene at 7) (Page ID #653). Absent the sort of assurances
from the proposed intervenors that the district court received in Smith, it was entirely reasonable
for the district court here to anticipate that the Congressmen’s entrance into this case “could
create a significant likelihood of undue delay and prejudice to the original parties” and to deny
the Congressmen’s motion on that ground. See R. 47 (Order at 2) (Page ID #903).

Other aspects of the majority’s opinion are similarly overreaching. For instance, there is
no need to consider whether the “upcoming elections” may “bring about change in Michigan’s
 No. 18-1437 League of Women Voters of Mich., et al. v. Johnson, et al. Page 14

state government.” See Maj. Op. at 9. The majority believes that Johnson’s defense may prove
insufficient because she may be replaced by a new Secretary from the Democratic Party in the
2018 election who may decline to defend the current districting maps. But we have cautioned
against such speculative musings before. See United States v. Michigan, 424 F.3d 438, 444 (6th
Cir. 2005) (“Rather than identifying any weakness in the state’s representation in the current
phase of the proceedings, the proposed intervenors seem more concerned about what will
transpire in the future . . . . While the proposed intervenors may be legitimately concerned about
these future issues, they are not now, and possibly never will be, before the district court.”). The
majority nevertheless insists that “allowing intervention now may very well prove more efficient
for all involved,” as a future change in Michigan’s government may entitle the Congressmen to
intervene of right. Maj. Op. at 9. What would be far more efficient, of course, is to realize that
the district court has not abused its ample discretion in denying the Congressmen an opportunity
to intervene now and to allow the case to proceed as planned. The majority hamstrings the
district court’s smooth administration of this case and then offers, in consolation, that it could
have been worse.

By the same token, the majority errs in suggesting that the Congressmen’s interest in this
case is relevant to our review under Rule 24(b). See Maj. Op. at 8–9. It is intervention of right
under Rule 24(a), not permissive intervention under Rule 24(b), that requires the proposed
intervenor to establish “a substantial legal interest in the subject matter of the case” and to prove
“a potential for inadequate representation.” Michigan, 424 F.3d at 443 (emphasis omitted). Rule
24(b), by contrast, “plainly dispenses with any requirement that the intervenor shall have a direct
personal or pecuniary interest in the subject of the litigation.” SEC v. U.S. Realty & Imp. Co.,
310 U.S. 434, 459 (1940)); see also 7C Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1911 (3d ed. 1998) (“Close scrutiny of the kind of interest the
intervenor is thought to have seems especially inappropriate under Rule 24[b] since it makes no
mention of interest. The rule requires only that the intervenor’s claim or defense share a
common question of law or fact with the main action.”). Rather, “Rule 24(b) grants the district
court discretionary power to permit intervention if the motion is timely and if the ‘applicant’s
claim or defense and the main action have a question of law or fact in common.’” Purnell v. City
of Akron, 925 F.2d 941, 950 (6th Cir. 1991) (internal citation omitted) (quoting Fed. R. Civ. P.
 No. 18-1437 League of Women Voters of Mich., et al. v. Johnson, et al. Page 15

24(b)(2)). To the extent we have intimated otherwise in dicta, see Coal. to Defend Affirmative
Action v. Granholm, 501 F.3d 775, 784 (6th Cir. 2007), we have erred. The majority’s
discussion of Rule 24(a) factors in its Rule 24(b) analysis is therefore misplaced.

Finally, the majority oversteps when it predicts that its decision “will require the district
court to adjust the discovery and dispositive motion deadlines currently in place” and may
require the district court to “push[] back” the trial schedule. Maj. Op. at 7. “Federal courts have
the authority to apply appropriate conditions or restrictions on an intervention,” and nothing in
the majority’s opinion should be read to cabin that authority in this case. Friends of Tims Ford v.
Tennessee Valley Auth., 585 F.3d 955, 963 n.1 (6th Cir. 2009). Thus, even after reversing a
district court for “denying intervention outright,” we have explained that “the district court
retains broad discretion in setting the precise scope of intervention” going forward. United
States v. City of Detroit, 712 F.3d 925, 932–33 (6th Cir. 2013). “[T]he scope of intervention can
be limited on a prospective basis, allowing appeal of recently issued orders and participation in
new matters.” Id. at 932. Those principles apply with equal force here, particularly given the
majority’s recognition that “timeliness is a particularly weighty concern” in this case. Maj. Op.
at 9. The three judges overseeing this case in the district court, not we, dictate the terms of the
Congressmen’s intervention on remand.

All in all, the district court did not abuse its discretion in denying the Congressmen’s
motion to intervene under Rule 24(b). As the majority sees it differently, I respectfully dissent.