NC NAACP State Conference v. Philip Berger

ON REHEARING EN BANC

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-2273

NORTH CAROLINA STATE CONFERENCE OF THE NAACP; CHAPEL HILL-
CARRBORO NAACP; GREENSBORO NAACP; HIGH POINT NAACP;
MOORE COUNTY NAACP; STOKES COUNTY BRANCH OF THE NAACP;
WINSTON SALEM-FORSYTH COUNTY NAACP,

Plaintiffs – Appellees,

PHILIP E. BERGER, in his official capacity as President Pro Tempore of the North
Carolina Senate; TIMOTHY K. MOORE, in his official capacity as Speaker of the
North Carolina House of Representatives,

Appellants,

and

KEN RAYMOND, in his official capacity as a member of the North Carolina State
Board of Elections; STELLA ANDERSON, in her official capacity as Secretary of
the North Carolina State Board of Elections; DAMON CIRCOSTA, in his official
capacity as Chair of the North Carolina State Board of Elections; JEFFERSON
CARMON III, in his official capacity as a member of the North Carolina State
Board of Elections; DAVID C. BLACK, in his official capacity as a member of the
North Carolina State Board of Elections,

Defendants – Appellees.

Appeal from the United States District Court for the Middle District of North Carolina at
Greensboro. Loretta C. Biggs, District Judge. (1:18-cv-01034-LCB-LPA)
Argued: December 7, 2020 Decided: June 7, 2021

Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, AGEE,
KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON,
QUATTLEBAUM, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Harris wrote the majority opinion, in which Chief
Judge Gregory and Judges Motz, King, Keenan, Wynn, Diaz, Floyd, and Thacker joined.
Judge Wilkinson wrote a dissenting opinion. Judge Niemeyer wrote a dissenting opinion.
Judge Quattlebaum wrote a dissenting opinion, in which Judges Niemeyer, Agee,
Richardson, and Rushing joined.

ARGUED: Peter A. Patterson, COOPER & KIRK PLLC, Washington, D.C., for
Appellants. Stephen K. Wirth, ARNOLD & PORTER KAYE SCHOLER LLP,
Washington, D.C.; James Wellner Doggett, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: David H. Thompson,
Nicole J. Moss, Haley N. Proctor, Nicole Frazer Reaves, COOPER & KIRK PLLC,
Washington, D.C.; Nathan A. Huff, PHELPS DUNBAR LLP, Raleigh, North Carolina, for
Appellants. Joshua H. Stein, Attorney General, Olga E. Vysotskaya de Brito, Special
Deputy Attorney General, Paul M. Cox, Special Deputy Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees
Damon Circosta, Stella E. Anderson, David C. Black, Ken Raymond, and Jefferson
Carmon III. Irving Joyner, Cary, North Carolina; Penda D. Hair, Washington, D.C., Caitlin
A. Swain, FORWARD JUSTICE, Durham, North Carolina; John C. Ulin, Los Angeles,
California, James W. Cooper, Jeremy C. Karpatkin, Andrew T. Tutt, Jacob Zionce,
ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellees North
Carolina State Conference of the NAACP, Chapel Hill-Carrboro NAACP, Greensboro
NAACP, High Point NAACP, Moore County NAACP, Stokes County Branch of the
NAACP, and Winston Salem-Forsyth County NAACP.

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PAMELA HARRIS, Circuit Judge:

In this appeal, we are asked to decide whether the leaders of the North Carolina

House and Senate are entitled to intervene, on behalf of the State of North Carolina, in

litigation over the constitutionality of the State’s voter-ID law. What makes this case

unusual is that North Carolina’s Attorney General, appearing for the State Board of

Elections, already is representing the State’s interest in the validity of that law, actively

defending its constitutionality in both state and federal court. Nevertheless, the legislative

leaders have moved twice before the district court to intervene so that they also can speak

for the State, insisting that this case requires not one but two representatives of the State’s

interest. Twice, the district court rejected these requests.

We see no abuse of discretion in that decision. At this point in the proceedings, the

legislative leaders may assert only one interest in support of intervention: that of the State

of North Carolina in defending its voter-ID law. It follows that they have a right to

intervene under Rule 24(a)(2) of the Federal Rules of Civil Procedure only if a federal court

first finds that the Attorney General is inadequately representing that same interest, in

dereliction of his statutory duties – a finding that would be “extraordinary.” See Planned

Parenthood of Wis., Inc. v. Kaul, 942 F.3d 793, 801 (7th Cir. 2019). After reviewing the

district court’s careful evaluation of the Attorney General’s litigation conduct, we are

convinced that the court did not abuse its discretion in declining to make that extraordinary

finding here. Because that is enough to preclude intervention as of right under Rule

24(a)(2), and because we similarly defer to the district court’s judgment denying

permissive intervention under Rule 24(b), we affirm the district court.

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I.

In December 2018, the North Carolina General Assembly passed Senate Bill 824,

“An Act to Implement the Constitutional Amendment Requiring Photographic

Identification to Vote” (“S.B. 824”). After the House and Senate overrode a veto by North

Carolina Governor Roy Asberry Cooper III, S.B. 824 was enacted on December 19, 2018,

as North Carolina Session Law 2018-144.

This new voter-ID law requires, subject to some exceptions, that individuals voting

either in person or by absentee ballot present one of ten forms of authorized photographic

identification. See 2018 N.C. Sess. Laws 144, § 1.2(a). To make that easier, the law

charges county boards of elections with providing qualifying ID cards free of charge, and

provides a mechanism for those without ID to vote by provisional ballot. See id. §§ 1.1(a),

1.2(a). Along with these voter-ID provisions, S.B. 824 also expands the number of partisan

poll observers, as well as the grounds any individual voter can raise to challenge another

voter’s ballot. See id. §§ 3.1(c), 3.3.

On December 20, 2018 – the day after the law’s enactment – the North Carolina

State Conference of the NAACP and several of the state’s local NAACP branches

(collectively, “the NAACP”) filed suit challenging S.B. 824. The complaint named as

defendants Governor Cooper and several members of the North Carolina State Board of

Elections (collectively, “the State Board”), all in their official capacities. The NAACP

alleged that S.B. 824 has a disparate impact on African American and Latino residents of

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North Carolina, resulting in “effective denial of the franchise and dilution of minority

voting strength” in violation of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. J.A.

30. The complaint also alleged that several provisions of S.B. 824 intentionally

discriminate against African American and Latino voters in violation of the Fourteenth and

Fifteenth Amendments of the U.S. Constitution. The NAACP requested declaratory relief

and an injunction against the implementation of the challenged provisions.

In this appeal, we consider two successive requests by North Carolina’s legislative

leaders to intervene to defend against the NAACP’s challenge to S.B. 824. The procedural

history is complicated. But it also is necessary to understand the posture of this appeal and

the resulting limits on our jurisdiction, so we describe it in some detail.

In January of 2019, Philip E. Berger, the President Pro Tempore of the North

Carolina Senate, and Timothy K. Moore, the Speaker of the North Carolina House of

Representatives, filed their first intervention motion, seeking to intervene on behalf of the

North Carolina General Assembly to defend S.B. 824. The state legislative leaders – whom

we refer to as “the Leaders” – claimed entitlement to intervene as of right under Federal

Rule of Civil Procedure 24(a)(2), and in the alternative asked for permission to intervene

under Rule 24(b). The NAACP opposed the motion, and the Governor and the State Board,

through the Attorney General as counsel, took no position.

In this first motion, the Leaders purported to speak on behalf of the General

Assembly, rather than the State of North Carolina as a whole. That status, the Leaders

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argued, gave them a protectable interest justifying intervention as of right under Rule

24(a)(2). As the Leaders explained, a North Carolina statute, recently enacted, provides

that they “jointly have standing to intervene on behalf of the General Assembly as a party

in any judicial proceeding challenging a North Carolina statute,” N.C. Gen. Stat. § 1-

72.2(b) (emphasis added), and “request[s]” that federal courts permit participation by both

the State’s legislative and executive branches in cases challenging the validity of state law,

id. § 1-72.2(a). According to the Leaders, the General Assembly’s “institutional interest

in seeing that [its] enactments are not ‘nullified’” thus satisfied Rule 24(a)(2)’s interest

requirement. J.A. 113–14 (quoting Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n,

576 U.S. 787, 803 (2015)).

Moreover, the Leaders continued, that interest was “not adequately represented”

already by the existing defendants – the Governor and the State Board, through the

Attorney General – for purposes of Rule 24(a)(2)’s adequacy prong. Pointing to past

statements opposing voter-ID laws by the Governor and Attorney General, as well as their

activity in litigation over previous voter-ID laws in North Carolina, the Leaders claimed

that the defendants “cannot be trusted to defend S.B. 824 in the same, rigorous manner as

Proposed Intervenors – and very well might not defend the law at all.” J.A. 117.

The district court denied the Leaders’ motion on June 3, 2019, finding that the

Leaders did not meet the requirements for either mandatory or permissive intervention.

See N.C. State Conf. of the NAACP v. Cooper, 332 F.R.D. 161, 171, 173 (M.D.N.C. 2019)

(“NAACP I”). The court first rejected the NAACP’s threshold argument that the Leaders

lacked Article III standing. Because the Leaders sought to intervene only as defendants,

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the court concluded, and were not themselves invoking the court’s jurisdiction, it was not

incumbent on them to establish Article III standing. See id. at 165. Acknowledging that

courts are divided on this question, the district court found no “Fourth Circuit case setting

forth such a requirement” and so “decline[d] to impose” one itself. Id.

The court turned then to intervention as of right, for which a movant must

demonstrate: “(1) an interest in the subject matter of the action; (2) that the protection of

this interest would be impaired because of the action; and (3) that the applicant’s interest

is not adequately represented by existing parties to the litigation.” Id. at 165 (quoting

Teague v. Bakker, 931 F.2d 259, 260–61 (4th Cir. 1991)). The Leaders could not satisfy

those requirements, the district court concluded, mostly because the existing defendants,

through the Attorney General, already were actively defending S.B. 824.

As to the interest prong, the court held that, at least while the Governor and the State

Board remained in the case, the Leaders did not have a significantly protectable interest in

likewise defending the statute’s legality. Id. at 168. The court distinguished cases in which

state legislators were permitted to intervene in defense of a statute “[w]hen it became

apparent that neither the [state] Attorney General nor the named defendants would defend

the statute,” id. at 167 (quoting Karcher v. May, 484 U.S. 72, 75 (1987)); here, by contrast,

the state defendants, represented by the Attorney General, already were defending against

the NAACP’s challenge to S.B. 824. The court recognized North Carolina’s “public

policy” in favor of intervention by the Leaders to represent the interests of the General

Assembly, id. at 166–67 (quoting N.C. Gen. Stat. § 1-72.2(a)), but explained that

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intervention as of right under Rule 24(a)(2) remains subject to federal-law requirements,

see id. at 167.

As to the adequacy prong, the district court held that because the Attorney General

already was defending the lawsuit on behalf of the state defendants, the Leaders would be

required to “mount a strong showing of inadequacy” to overcome a “presumption of

adequate representation.” Id. at 169 (quoting Stuart v. Huff, 706 F.3d 345, 352 (4th Cir.

2013)). The Leaders could not make that showing, the court concluded. The defendants

already had moved to dismiss the NAACP’s complaint, and there was no record evidence

suggesting that the Governor, the State Board, or the Attorney General had abdicated their

responsibility to defend the law. See id. at 169–71.

The court also denied the Leaders’ request for permissive intervention under Federal

Rule of Civil Procedure 24(b). Id. at 173. The intervention of additional defendants, the

court found, would delay litigation of the case, “detract[ing] from, rather than enhanc[ing],

the timely resolution, clarity, and focus” of the proceedings. Id. at 172. Moreover, the

court found, intervention likely would prejudice the plaintiffs, requiring the NAACP to

“address dueling defendants, purporting to all represent the interest of the State, along with

their multiple litigation strategies.” Id.

The district court entered its denial of the Leaders’ motion without prejudice. Id. at

173. Clarifying its disposition, the court indicated that it would entertain a renewed request

for intervention “should it become apparent during the litigation” that the state defendants,

through the Attorney General, “no longer intend to defend this lawsuit.” Id. Barring any

such change in circumstances, however, the Leaders’ participation would be limited to

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amicus curiae briefs, which would allow the Leaders to bring to the court’s attention any

“unique contention” or argument not raised by the Attorney General. Id.

The Leaders did not appeal the district court’s order denying their motion to

intervene.

Instead, six weeks later, the Leaders filed their second, renewed motion for

intervention, again seeking intervention both as of right and by permission. The Leaders

acknowledged that the court already had denied those requests. But the court’s order, the

Leaders believed, was “not necessarily its final word on the matter,” given its stated

willingness to entertain a new motion if the Attorney General stopped defending the suit.

J.A. 477.

Much of the Leaders’ renewed case for intervention repeated arguments the district

court already had rejected. But the Leaders also made two new points especially relevant

here. First, the Leaders claimed that a recent Supreme Court decision, Virginia House of

Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019), had “clarified” the precise nature of the

interests they sought to represent in litigation over S.B. 824. J.A. 485. In Bethune-Hill,

the Leaders explained, the Supreme Court confirmed that a state may designate the

legislature to serve as the state’s own agent in federal litigation; and in its state statutes, the

Leaders continued, North Carolina had done just that, designating them, by virtue of their

positions in the legislature, as representatives of the State of North Carolina’s interest in

the validity and enforcement of its laws. The Leaders thus claimed, for the first time, to

represent two different interests in defending S.B. 824: the distinct interest of the General

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Assembly, on which they had relied before, and now the interests of the State of North

Carolina as well.

Second, the Leaders contended that the contingency the district court had envisioned

in its first order had come to pass, because months of litigation in the district court and

parallel state proceedings had made clear that the Attorney General was not vigorously

defending S.B. 824. In the federal case, the Leaders argued, the Attorney General, though

winning dismissal of the Governor from the case, had argued only for abstention on

federalism grounds and failed to develop the factual record through expert reports. And in

the state-court case, Holmes v. Moore, No. 18-CVS-15292 (N.C. Super. Ct.) – in which the

Leaders, too, were named as defendants – the Attorney General had moved to dismiss too

few of the complaint’s counts and been insufficiently aggressive as to discovery and its

opposition to a preliminary injunction. All told, the Leaders concluded, the Attorney

General’s performance showed that he could not be trusted to defend S.B. 824, clearing

what they called the “minimal” hurdle of Rule 24(a)(2)’s adequacy prong. J.A. 491

(quoting Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972)).

Two months after this second motion to intervene, but before the district court had

ruled on it, the Leaders sought to accelerate the process with a ruling from our court. On

the theory that the district court had “de facto denied” their motion by not acting on it, the

Leaders filed an interlocutory appeal and petitioned for a writ of mandamus. In October

of 2019, we dismissed the appeal for lack of jurisdiction, given the absence of a ruling by

the district court, and denied the mandamus petition.

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A month later, the district court denied the Leaders’ motion, finding that their

renewed case for intervention was no more convincing than their first. N.C. State Conf. of

the NAACP v. Cooper, No. 1:18CV1034, 2019 WL 5840845, at *1 (M.D.N.C. Nov. 7,

2019) (“NAACP II”). Crucially for our purposes, the court refused to revisit arguments

made by the Leaders in their first motion and rejected by the court in its first order. Because

the Leaders had not timely appealed its prior order, the district court held, that order

“remain[ed] undisturbed” and its rulings had become “the law of this case.” Id. at *1–2.

The court’s decision thus focused on whether the Leaders had “presented evidence, newly

available, that speaks to the narrow exception outlined in its prior order”: whether the

Attorney General, on behalf of the State Board, had “in fact declined to defend” S.B. 824.

Id. at *2.

First, however, the district court briefly addressed the Supreme Court’s Bethune-

Hill decision and reaffirmed its view that the Leaders had no protectable interest in

defending S.B. 824 so long as the Attorney General was doing so. The court acknowledged

that under Bethune-Hill, North Carolina undoubtedly has the “prerogative to ‘designate

agents to represent [it] in federal court.’” Id. at *2 n.3 (quoting Bethune-Hill, 139 S. Ct. at

1951). But the district court found it “far from clear” that North Carolina law in fact had

authorized the Leaders to defend the State’s interests in court alongside the State’s Attorney

General – who was expressly charged with “appear[ing] for the State.” Id. (quoting N.C.

Gen. Stat. § 114-2). So the question remained, the district court concluded, whether the

Attorney General continued to provide an adequate defense of S.B. 824.

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Surveying the new evidence cited by the Leaders, the district court determined that

the State’s interests already were adequately represented by the State Board and the

Attorney General, precluding intervention as of right under Rule 24(a)(2). In the federal

court proceedings, the district court emphasized, the State Board consistently had denied

any substantive allegation of unconstitutionality, had moved to dismiss the suit on

federalism grounds, and had filed an “expansive” brief opposing the NAACP’s request for

a preliminary injunction. Id. at *3. And the story in the Holmes state-court litigation – to

the extent it was relevant to the adequacy of the Attorney General’s federal-court

representation – was the same: At most, the Leaders had identified “strategic

disagreements” with the Attorney General, whose approach “fell well within the range of

reasonable litigation strategies.” Id.

As for permissive intervention, the court found its earlier judgment prescient. Since

its last order, the court noted, the Leaders had “prematurely” filed a renewed motion to

intervene, improperly appealed before any denial had been entered, and unsuccessfully

sought the “extraordinary remedy of mandamus.” Id. at *4. This litigation conduct

confirmed that the Leaders’ participation as parties would “unnecessarily complicate and

delay” the progress of the case, and the court found no basis for reversing its earlier denial

of permissive intervention. Id.

Immediately after this second order denying intervention – but five months after the

first – the Leaders filed a notice of appeal to this court. On appeal, the NAACP continued

to oppose the Leaders’ efforts to intervene. The State Board, through the Attorney General,

12
again took no position on permissive intervention, but argued that intervention as of right

is unnecessary because it is adequately representing any interest the Leaders may have in

the case.

In August of 2020, a panel of this court held that the district court abused its

discretion in denying the Leaders’ renewed motion for intervention, vacated the district

court’s order, and remanded for reconsideration of the Leaders’ request. N.C. State Conf.

of the NAACP v. Berger, 970 F.3d 489 (4th Cir.), reh’g en banc granted, 825 F. App’x 122

(4th Cir. 2020) (mem.). Upon petitions for rehearing by the NAACP and the State Board,

we vacated the panel opinion and now consider the case en banc.

There is one final turn in the procedural history of this case. In December of 2019

– while the Leaders’ appeal from the district court’s second order was pending – the district

court ruled for the NAACP and preliminarily enjoined S.B. 824’s enforcement. See N.C.

State Conf. of the NAACP v. Cooper, 430 F. Supp. 3d 15, 54 (M.D.N.C. 2019). The State

Board, represented by the Attorney General, promptly appealed that decision, and we

allowed the Leaders to intervene in that appeal. In December of 2020 – while the question

of intervention was under en banc reconsideration – we ruled for the State Board, holding

that the district court had abused its discretion in issuing the preliminary injunction. See

N.C. State Conf. of the NAACP v. Raymond, 981 F.3d 295, 311 (4th Cir. 2020). A district

court trial on the merits, originally scheduled for January 2021, now has been postponed

pending the resolution of this separate appeal regarding intervention.

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II.

We begin with the scope of our appellate jurisdiction. Given the course of

proceedings in the district court, we conclude that we have power to review only those

questions resolved in the district court’s second order denying intervention, as that is the

only final order timely appealed to this court.

Subject to certain exceptions not applicable here, 28 U.S.C. § 1291 authorizes us to

review only “final decisions of the district courts.” Microsoft Corp. v. Baker, 137 S. Ct.

1702, 1707 (2017) (quoting 28 U.S.C. § 1291). For the purposes of this final-judgment

rule, a “district court’s denial of a motion to intervene is ‘treated as a final judgment that

is appealable.’” Sharp Farms v. Speaks, 917 F.3d 276, 289 (4th Cir. 2019) (quoting

Bridges v. Dep’t of Md. State Police, 441 F.3d 197, 207 (4th Cir. 2006)). This designation

makes sense: “[F]rom the perspective of a disappointed prospective intervenor, the denial

of a motion to intervene is the end of the case,” even as proceedings continue in the district

court with the original parties. Driftless Area Land Conservancy v. Huebsch, 969 F.3d

742, 745 (7th Cir. 2020) (citation omitted). It follows that if a district court denies a motion

to intervene, then a would-be intervenor must notice an appeal within 30 days of the entry

of that final order. See 28 U.S.C. § 2107(a). If, on the other hand, no timely appeal is

taken, then we will be left without jurisdiction to review the court’s order. See Sharp

Farms, 917 F.3d at 289 (noting that failure to timely appeal denial of intervention is

jurisdictional).

That is just what happened here. The district court denied the Leaders’ first motion

to intervene on June 3, 2019. The Leaders did not appeal that order within 30 days of its

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entry, so the district court’s order became “final and conclusive” when the time to appeal

expired. See Old Dominion Tr. Co. v. First Nat’l Bank of Oxford, 260 F. 22, 28 (4th Cir.

1919); see also 15B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice & Procedure Jurisdiction § 3914.18 (2d ed. Oct. 2020 update) (“Failure to appeal

denial of intervention upon entry of the order may forfeit the right to review . . . .”). And,

critically, the Leaders’ second and renewed motion to intervene does not save their failure

to appeal the denial of the first. As appellate courts have recognized, “once a conclusive

resolution has been reached[,] . . . a renewed motion for the same relief, or a belated request

for reconsideration, does not reopen the time for appeal.” Fairley v. Fermaint, 482 F.3d

897, 901 (7th Cir. 2007); see also United States v. Boone, 801 F. App’x 897, 904 (4th Cir.

2020) (Harris, J., concurring).

The Leaders dispute one and only one step in this straightforward analysis:

According to the Leaders, even if orders denying intervention generally are final and

appealable, the district court’s first order was not, as it was entered “without prejudice.”

See NAACP I, 332 F.R.D. at 173. As the Leaders understand it, that without-prejudice

dismissal expressly left open the possibility of further litigation, indicating that an

amendment could cure any defect in their motion. It follows, they argue, that the district

court’s denial of intervention was not a final order under our case law – which means that

they had neither the ability nor the obligation to take an immediate appeal.

That argument misreads both our precedent and the district court’s order. We have

dealt extensively with the finality of without-prejudice dismissals of complaints, and we

agree with the Leaders that we may analogize to those cases here. But what those cases

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stand for is the proposition that “[d]ismissals without prejudice . . . are not unambiguously

non-final orders.” Bing v. Brivo Sys., LLC, 959 F.3d 605, 612 (4th Cir. 2020) (emphasis

added). Instead, we examine the finality and appealability of a without-prejudice dismissal

“based on the specific facts of the case,” considering such factors as whether amendment

could cure the defects on which dismissal rests, what the “bottom-line effect” of the ruling

is, and whether the district court “signaled that it was finished” with the issues before it.

Id. at 610, 612 (quoting Chao v. Rivendell Woods, Inc., 415 F.3d 342, 345 (4th Cir. 2005)).

Applied to the “specific facts of [this] case,” id. at 610, those factors point decisively

to a final and immediately appealable order. The district court “signaled that it was

finished” with the merits of the Leaders’ first request for intervention, notwithstanding its

styling of the denial as “without prejudice.” As the court itself later explained, the window

left open in its initial order was a “narrow” one, available only if the State Board and

Attorney General “in fact declined to defend” S.B. 824 in the future. NAACP II, 2019 WL

5840845, at *2. Because that contingency had not yet – and might never – come to pass,

the Leaders could not then amend or correct their motion to change the result. The bottom-

line effect of the court’s ruling was clear: The Leaders were not entitled to intervene under

then-current circumstances. Under our precedent, that determination was final, and if the

Leaders disagreed, then they were required to take a timely appeal.

That conclusion is consistent with the approach other circuits have taken in

procedurally similar intervention appeals. The Seventh Circuit, for instance, recently

confronted an order much like the one at issue here: a without-prejudice denial of a motion

to intervene that expressly invited a renewed request if a “concrete, substantive conflict or

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actual divergence of interests should emerge.” Driftless Area Land Conservancy, 969 F.3d

at 745. That denial, the court held, was an immediately appealable final order – “without

prejudice” notwithstanding. Id. “The possibility of a new motion if circumstances change

does not block an immediate appeal,” the court explained, because “[t]he contingency that

the judge has in mind might never arise.” Id.

The Leaders rely on a different and earlier Seventh Circuit case, United States v.

City of Milwaukee, 144 F.3d 524 (1998), in which the court deemed non-final a district

court’s without-prejudice denial of intervention. But that case, the Seventh Circuit

explained in Driftless Area Land Conservancy, was very different: There, the denial rested

on a “purely technical error” in the intervention motion – the failure to include a proposed

pleading – that could be cured immediately. See 969 F.3d at 746 (discussing Milwaukee,

144 F.3d at 527–30). Cases like this one, by contrast – in which a district court denies

intervention on the merits, but “without prejudice” in recognition that circumstances might

change – are “not remotely analogous.” Id. What matters for finality is not “the incantation

of the words ‘without prejudice,’” but “that the judge addressed the substantive merits of

the intervention motion,” not just a procedural flaw, and “conclusively denied” the motion.

Id. at 745 (citation omitted).

And, again, the same rule holds even if – as here – would-be intervenors file a

renewed motion to intervene, and then timely appeal the denial of that second motion.

Under those circumstances, too, courts will not consider the merits of the initial denial,

because that denial was not timely appealed. See EPA v. City of Green Forest, 921 F.2d

1394, 1401 (8th Cir. 1990) (concluding that court lacked jurisdiction over reasoning in

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earlier order denying intervention because “the notice of appeal from the denial of the first

motion to intervene was not until after nearly sixteen months”); Whitewood v. Sec’y Pa.

Dep’t of Health, 621 F. App’x 141, 144 (3d Cir. 2015) (reviewing only order denying

amended motion to intervene). As the Eighth Circuit cogently explained, “[t]he denial of

a second motion to intervene covering the same grounds as the first motion to intervene

does not reset the clock for purposes of an appeal; holding otherwise would defeat the

statutory timeliness requirement.” Smith v. SEECO, Inc., 922 F.3d 398, 404 (2019).

It is true, as the Leaders note, that there are some cases in which courts will review

the merits of an initial denial of intervention, even when the putative intervenors have

appealed only the denial of a second motion. But in each of those cases, the district court’s

second order denying intervention – the one appealed – itself made a “fresh evaluation” of

the original intervention motion, so that the first order’s reasoning and rulings merged into

the second. See Hodgson v. United Mine Workers of Am., 473 F.2d 118, 126–27 (D.C. Cir.

1972) (explaining that district court had exercised discretion to make a “fresh evaluation

of the intervention application”); see also, e.g., Calvert Fire Ins. Co. v. Environs Dev.

Corp., 601 F.2d 851, 857 n.3 (5th Cir. 1979) (explaining that district court had treated

second intervention request as motion for reconsideration). Here, contrary to the Leaders’

argument, there has been no wholesale merger. Instead, the district court expressly

declined to reconsider its earlier analysis, evaluating only whether the Attorney General

had become an inadequate representative of the Leaders’ purported interest in the defense

of S.B. 824.

18
Our jurisdiction in this appeal is correspondingly limited. We “start[] with the

proposition that the original, unappealed order was correct when entered.” Devs. Sur. &

Indem. Co. v. Archer W. Contractors, LLC, 809 F. App’x 661, 664 (11th Cir. 2020)

(quoting Birmingham Fire Fighters Ass’n 117 v. Jefferson County, 290 F.3d 1250, 1254

(11th Cir. 2002)). That means that we may not consider, on the Leaders’ appeal from the

district court’s second order, issues put to rest in its first. Specifically, we cannot now

review the Leaders’ claim that they have a “protectable interest” under Rule 24(a)(2) in

representing the General Assembly’s “institutional interest” in enforcement of S.B. 824.

The district court rejected that argument in its first order denying intervention, see NAACP

I, 332 F.R.D. at 168; that determination was not appealed, and so the Leaders may not

advance that interest here. Also outside the scope of our review is the related question of

whether the Leaders must establish Article III standing to represent any purported interest

under Rule 24(a)(2). See Flying J, Inc. v. Van Hollen, 578 F.3d 569, 571–72 (7th Cir.

2009) (discussing relationship between standing and Rule 24(a)(2)’s interest prong). The

district court concluded, again in its first order, that because the Leaders sought to intervene

as defendants rather than plaintiffs, they would not be held to Article III’s requirements.

See NAACP I, 332 F.R.D. at 165; see also Bethune-Hill, 139 S. Ct. at 1951 (suggesting that

legislature participating in litigation only to defend state statute does not “invok[e] a court’s

19
jurisdiction” and therefore need not demonstrate standing). And again, on appeal of the

district court’s second order, we treat that determination as conclusive. 1

In sum, our jurisdiction over this appeal is coextensive with the district court’s

narrow focus in its second order denying intervention – the only order on appeal. We thus

proceed to consider those issues, and only those issues, decided or “fresh[ly] evaluat[ed],”

see Hodgson, 473 F.2d at 127, in that second order. As a result, our emphasis, like the

district court’s, is on the application of Rule 24(a)(2)’s adequacy prong to the Attorney

General’s defense of S.B. 824.

III.
As all parties agree, the intervention issue in this case is governed by federal law,

and specifically by Federal Rule of Civil Procedure 24. State law, like the North Carolina

statutes relied upon by the Leaders for their interest in this litigation, may “inform” the

application of Rule 24, but it does not “supplant” Rule 24 or its criteria for intervention.

See Planned Parenthood of Wis., Inc. v. Kaul, 942 F.3d 793, 797 (7th Cir. 2019).

1
Because this question does not bear on our own Article III jurisdiction to hear this
appeal, we are under no obligation to resolve it. Whether or not the Leaders needed or had
standing to intervene in defense of S.B. 824, they clearly “have standing to appeal the
denial of their intervention motion.” Doe v. Pub. Citizen, 749 F.3d 246, 257 (4th Cir. 2014)
(citation omitted). The alleged injury suffered by a disappointed would-be intervenor flows
from the denial of intervention itself, and it may be redressed by an order allowing
intervention. See CVLR Performance Horses, Inc. v. Wynne, 792 F.3d 469, 475 (4th Cir.
2015) (final judgment does not moot pre-existing intervention appeal because appellate
court still may offer remedy by ordering intervention); 15A Charles Alan Wright, Arthur
R. Miller & Edward H. Cooper, Federal Practice & Procedure Jurisdiction § 3902.1 (2d ed.
Oct. 2020 update) (“Persons denied intervention in the trial court clearly have standing to
appeal the denial of intervention . . . .”).

20
Rule 24 provides two avenues for federal-court intervention, one mandatory and one

discretionary. Intervention as of right is governed by Rule 24(a)(2), under which federal

courts must permit intervention when, on timely request – a factor undisputed here – a

proposed intervenor “can demonstrate ‘(1) an interest in the subject matter of the action;

(2) that the protection of this interest would be impaired because of the action; and (3) that

the applicant’s interest is not adequately represented by existing parties to the litigation.”

Stuart v. Huff, 706 F.3d 345, 349 (4th Cir. 2013) (quoting Teague v. Bakker, 931 F.2d 259,

260–61 (4th Cir. 1991)). Importantly, all these requirements must be met before

intervention is mandatory; a failure to meet any one will preclude intervention as of right.

See Virginia v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976). If that

happens, then “a court may still allow an applicant to intervene permissively under Rule

24(b), although in that case the court must consider ‘whether the intervention will unduly

delay or prejudice the adjudication of the original parties’ rights.’” Stuart, 705 F.3d at 349

(quoting Fed. R. Civ. P. 24(b)(3)).

As explained below, we conclude that the district court did not abuse its discretion

in determining that the Leaders’ purported interest in defending S.B. 824 on behalf of the

State of North Carolina was adequately represented already by the State Board of Elections

and Attorney General. That is enough to defeat the Leaders’ claim to mandatory

intervention. Accordingly, we need not consider whether the Leaders have satisfied Rule

24(a)(2)’s interest element under the theory addressed and rejected by the district court in

its second order: that state law has designated them agents of the State’s own undoubted

interest in the validity of its laws. We may assume for purposes of this appeal, that is, that

21
state law has endowed the Leaders with a “significantly protectable interest” for purposes

of Rule 24(a)(2), see Teague, 931 F.2d at 261; even so, they have no right to intervene in

federal court under Rule 24(a)(2) because that same interest is adequately represented by

existing parties to the litigation. 2

As further detailed below, we also find no abuse of discretion in the district court’s

renewed consideration and denial of the Leaders’ request for permissive intervention.

Accordingly, we affirm the judgment of the district court.

Turning to the district court’s application of Rule 24, we bear in mind two key

features of this case. First is the “necessarily limited” scope of our appellate review. See

Stuart, 706 F.3d at 350. “It is well settled that district court rulings on both types of

intervention motions are to be reviewed for abuse of discretion” only. Id. at 349 (citation

omitted). This deferential standard of review stems in part from the district court’s

“superior vantage point” for evaluating the parties’ litigation conduct and whether an

2
We must disagree with the principal dissent’s suggestion that our inquiry into
adequacy amounts to dicta. See Diss. Op. 61 n.3. It is true, as the dissent observes, that
the district court rejected the Leaders’ original claim to a protected Rule 24(a)(2) interest
– based on the interests of the General Assembly – in its first order, which falls outside the
scope of our appellate review. See NAACP I, 332 F.R.D. at 166–68. In its second order,
however, which is on appeal, the district court considered the Leaders’ separate claim to a
Rule 24(a)(2) interest, this time as authorized agents of the State’s interest in S.B. 824. See
NAACP II, 2019 WL 5840845, at *2 n.3. As a result, we have before us live arguments on
all prongs of Rule 24(a)(2); even with our review limited to the district court’s second
order, the Leaders could prevail if that order incorrectly assessed both interest and
adequacy. That we choose to resolve the Leaders’ claim on adequacy grounds alone makes
our adequacy analysis the linchpin of this appeal, not dicta.

22
existing party adequately represents a proposed intervenor’s interests. Id. at 350. But it

also recognizes that “[q]uestions of trial management are quintessentially the province of

the district courts,” and that motions to intervene “can have profound implications for

district courts’ trial management functions”: Parties added by intervention “can complicate

routine scheduling orders, prolong and increase the burdens of discovery and motion

practice, thwart settlement, and delay trial.” Id. (citation omitted). So in this appeal, as in

any under Rule 24, we are alert to the “boundaries of our reviewing role.” Id.

That role is further informed by the second key feature of this case: its highly

unusual posture. This is not a case like those decided by the Supreme Court and relied on

by the Leaders here – Bethune-Hill, 139 S. Ct. 1945, Hollingsworth v. Perry, 570 U.S. 693

(2013), Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), and Karcher v. May,

484 U.S. 72 (1987) – in which a state representative, usually a state attorney general, is not

defending state law, or has declined to appeal an adverse ruling. As the Supreme Court’s

multiple encounters with this recurring fact pattern attest, such cases may present difficult

questions about the standing and right of other entities to intervene to continue a case in

the state attorney general’s stead. But at bottom, the issue in those cases is whether any

state representative will be permitted to defend a state’s interest in the validity of its laws,

once the state’s “default” representative has declined to do so. See Kaul, 942 F.3d at 800.

Here, by contrast, the State of North Carolina’s “default” representative – the

Attorney General – has not “dropped out of the case.” Id. The Attorney General is charged,

by North Carolina statute, with representing the State’s interest in cases involving

challenges to state law. See N.C. Gen. Stat. § 114-2(1) (“[I]t shall be the duty of the

23
Attorney General . . . to appear for the State . . . in any cause or matter, civil or criminal, in

which the State may be a party or interested.”). And consistent with that duty, the Attorney

General is very much in this case, defending the constitutionality of S.B. 824, on behalf of

the State Board of Elections, in state and federal courts, including our own.

As we have explained, the only interest the Leaders may now assert in support of

intervention under Rule 24(a)(2) is that of the State of North Carolina in the enforcement

and validity of its laws. And indeed, that is the Leaders’ primary argument on appeal: that

state law has designated them, along with the Attorney General, to represent the interests

of the State itself in federal court. See Reply Br. of Appellants 10; see also Bethune-Hill,

139 S. Ct. at 1951 (where state law designates a legislative entity to “represent [the State’s]

interests,” that entity may “stand in for the State”). But those, of course, are precisely the

interests already represented by the Attorney General in this case. So the unusual question

presented here is whether a federal district court must allow not one but “two state entities

. . . to speak on behalf of the State at the same time.” Kaul, 942 F.3d at 800.

The Seventh Circuit recently – only after the district court issued its decisions –

became the first federal court of appeals to confront precisely this question, and it explained

why, under these circumstances, we must be especially circumspect in reviewing a district

court’s denial of mandatory intervention. In Planned Parenthood of Wisconsin, Inc. v.

Kaul, just as here, a state legislative entity, relying on a purported authorization in state

law, sought to intervene as of right to defend the State’s interest in the constitutionality of

one of its statutes. See 942 F.3d at 796. According to the Wisconsin legislature, the State’s

Attorney General, though defending the law, was doing so only nominally, failing to

24
adequately represent Wisconsin’s interests under Rule 24(a)(2). See id. The Seventh

Circuit assumed without deciding that state law gave the legislature a Rule 24(a)(2)

“interest” as a representative of the State itself. See id. at 797–98. But because that same

interest already was represented by the Wisconsin Attorney General, the court explained,

the legislature could satisfy Rule 24(a)(2)’s adequacy element only if it succeeded in the

“unenviable task” of convincing a federal court that the Attorney General was inadequately

representing the interests of his own State. Id. at 801. And that, the court concluded, would

amount to an “extraordinary finding,” not to be undertaken lightly and requiring something

much more than a disagreement over litigation strategy. Id.; see also id. at 810 (Sykes, J.,

concurring).

With that as context, we turn to the district court’s application of Rule 24 and, first

and foremost, to its assessment of Rule 24(a)(2)’s adequacy prong.

In its opinion denying the Leaders’ renewed request for intervention, the district

court reviewed the proceedings to date and concluded that the State Board of Elections and

Attorney General continued to “actively and adequately” defend S.B. 824 for purposes of

Rule 24(a)(2). NAACP II, 2019 WL 5840845, at *2. It carefully reviewed what the Leaders

described as new evidence of an “unwillingness to robustly defend S.B. 824” in both the

federal litigation before it and the parallel state litigation in Holmes, and found only

“strategic disagreements” over choices that “fell well within the range of reasonable

litigation strategies.” Id. at *2–3. Because the State Board and Attorney General were

adequately representing the State’s interest in the constitutionality of S.B. 824, and because

25
there was no reason to think they would abandon that duty in the future, the district court

held, the Leaders had no entitlement to intervention as of right under Rule 24(a)(2). See

id. at *4.

On appeal, the Leaders’ primary challenge is to the legal standards employed by the

district court in its Rule 24(a)(2) adequacy analysis. They also dispute the district court’s

application of those standards to the performance of the State Board and Attorney General

in defending S.B. 824. We take the two challenges in turn. 3

3
The principal dissent raises one additional point, arguing that the district court
abused its discretion when it failed to consider, as part of its adequacy analysis, the import
of the relevant North Carolina statutes. See Diss. Op. 74–75. We disagree. Like the
Seventh Circuit in Kaul, we think laws like N.C. Gen. Stat. § 1-72.2 bear on the interest
element of Rule 24(a)(2), not the adequacy element. A state’s policy judgment about the
value of legislative intervention may bestow a protectable interest in certain court cases,
but it does not override our normal standards for evaluating the adequacy of existing
representation in those cases. And if it did – if aspiring legislative intervenors could rely
on a state-law policy preference for multiple representatives to satisfy both the interest
prong and the adequacy prong of the test for mandatory intervention – then we would risk
turning over to state legislatures, rather than district courts, control over litigation involving
the states. See Kaul, 942 F.3d at 799, 802.

The Leaders appear to disavow this approach, recognizing the problems it would
create. Instead, they assure us that state laws designating legislative agents as additional
representatives will not lead necessarily to intervention as of right – precisely because the
adequacy prong will remain an independent check. Even where laws like N.C. Gen. Stat.
§ 1-72.2 establish a protectable interest, that is, mandatory intervention will be
“foreclose[d]” if “another party adequately represents the legislature’s protectable
interest.” Appellants’ Br. 32 n.2. Indeed, the Leaders seem never to have asked the district
court, either, to consider N.C. Gen. Stat. § 1-72.2 in evaluating adequacy, as opposed to
interest. Even apart from the merits of the position, we would find no abuse of discretion
in the district court’s failure to take up an argument that was not presented to it. See Smith
v. Marsh, 194 F.3d 1045, 1052 n.5 (9th Cir. 1999); see also Reaching Hearts Int’l, Inc. v.
Prince George’s County, 478 F. App’x 54, 63 (4th Cir. 2012).

26
1.

In assessing whether an existing party to this litigation – the State Board, through

the Attorney General – adequately represented the State’s interest in the validity of S.B.

824, the district court applied two distinct legal standards. First, as it explained in its initial

order, it applied the long-standing presumption of adequate representation that arises when

“the party seeking intervention has the same ultimate objective as a party to the suit.”

NAACP I, 332 F.R.D. at 168 (quoting Westinghouse, 542 F.2d at 216). Because the

Leaders’ ultimate objective – upholding S.B. 824 – was the same as that pursued by the

State Board and Attorney General, the court continued, the Westinghouse presumption

could be overcome only if the Leaders could “demonstrate adversity of interest, collusion,

or nonfeasance.” Id. (quoting Westinghouse, 542 F.2d at 216). And second, the court

understood our decision in Stuart to require that the Leaders make an especially “strong

showing of inadequacy” to rebut the Westinghouse presumption because their objective

was shared with a governmental defendant – the State Board – rather than a private litigant.

Id. at 168 (quoting Stuart, 706 F.3d at 352). 4

On appeal, the Leaders’ primary argument is that the district court erred in applying

both those standards. And it is true that no matter how deferential our review, application

4
The district court spelled out the challenged standards only in its first order denying
intervention, which, as we have explained, falls outside the scope of our appellate
jurisdiction. But the district court’s second order – over which we do have jurisdiction –
incorporates the same standards. See, e.g., NAACP II, 2019 WL 5840845, at *3 (explaining
that “mere strategic disagreements are not enough to rebut the presumption of adequacy”
and citing Stuart, 706 F.3d at 353).

27
of an incorrect legal standard is an abuse of discretion that must be corrected on appeal.

See League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 235 (4th Cir. 2014).

In our view, however, the district court committed no such error in applying the standards

at issue here.

We begin with Westinghouse’s well-established presumption of adequacy, which

may be overcome on a showing of adversity of interest, collusion, or malfeasance – but not

by mere “disagreement over how to approach the conduct of the litigation” in question.

Stuart, 706 F.3d at 353. According to the Leaders, that presumption – which we and

virtually all our sister circuits have applied for decades 5 – is inconsistent with the Supreme

Court’s more generous approach to intervention, and we should take this opportunity to

overrule Westinghouse and abandon the presumption. We have rejected that argument

before. See Stuart, 706 F.3d at 351–52 (rejecting claim that presumption of adequacy –

heightened or otherwise – is inconsistent with Supreme Court precedent). And we continue

to disagree.

The Leaders rest their argument on a footnote in Trbovich v. United Mine Workers,

404 U.S. 528, 538 n.10 (1972), in which the Supreme Court described the burden for

5
Nearly every federal circuit has adopted some version of a presumption of
adequacy when proposed intervenors share an objective or interest with existing parties.
See, e.g., In re Thompson, 965 F.2d 1136, 1142–43 (1st Cir. 1992); Butler, Fitzgerald &
Potter v. Sequa Corp., 250 F.3d 171, 179–80 (2d Cir. 2001); Del. Valley Citizens’ Council
for Clean Air v. Pennsylvania, 674 F.2d 970, 973 (3d Cir. 1982); Bush v. Viterna, 740 F.2d
350, 355 (5th Cir. 1984); United States v. Michigan, 424 F.3d 438, 443–44 (6th Cir. 2005);
Kaul, 942 F.3d at 799; FTC v. Johnson, 800 F.3d 448, 452 (8th Cir. 2015); Arakaki v.
Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003); Tri-State Generation & Transmission
Ass’n, Inc. v. N.M. Pub. Regul. Comm’n, 787 F.3d 1068, 1072–73 (10th Cir. 2015); Clark
v. Putnam County, 168 F.3d 458, 461 (11th Cir. 1999).
28
showing inadequacy as “minimal,” requiring the proposed intervenor to show only “that

representation of his interest ‘may be’ inadequate.” But what Trbovich establishes is a

“default” rule – a “liberal” one, to be sure, but one that may give way to more specific

“standards for the adequacy of representation under Rule 24” based on the “context of each

case.” See Kaul, 942 F.3d at 799. In keeping with that context-specific approach, we, in

the good company of our sister circuits, have determined that it is “perfectly sensible” to

presume that a proposed intervenor’s interests will be adequately represented by an existing

party with whom it shares an objective, notwithstanding disagreements over litigation

tactics. Stuart, 706 F.3d at 352–53.

“Nor could it be any other way,” as we explained in Stuart. Id. at 354. Absent a

meaningful presumption of adequacy, federal courts would be required under Rule 24(a)(2)

to arbitrate, de novo, the inevitable differences over strategy that arise even among parties

who share an ultimate goal, deciding which trial tactics do and do not amount to “adequate”

representation. “It is not unusual for those who agree in principle to dispute the

particulars.” Id. But under the Leaders’ more free-wheeling approach – which seems to

have no obvious stopping point – every one of those disputes will necessitate a federal

ruling as to whether the existing party’s approach “may” lead to inadequate representation.

As we concluded in Stuart, “[t]o have such unremarkable divergences of view sow the

seeds for intervention as of right risks generating endless squabbles at every juncture over

how best to proceed.” Id. We see no reason to revisit that conclusion here.

Nor are we persuaded by the Leaders’ back-up claim: that even if the Westinghouse

presumption remains good law, it does not apply in this case because they seek to advance

29
an objective distinct from that of the existing party, the State Board, as represented by the

Attorney General. We have covered some of this ground already. The Attorney General

is charged by law with representing the interests of the State and its agencies in court,

including in cases challenging state law. See N.C. Gen. Stat. § 114-2; Martin v. Thornburg,

359 S.E.2d 472, 479 (N.C. 1987). The Attorney General, on behalf of the State Board, is

litigating the validity of S.B. 824 in state and federal court, seeking to uphold its legality.

And as the Leaders conceded at oral argument before the en banc court, that is precisely

the same objective that they would pursue if allowed to intervene.

In an effort to find some daylight between their own ultimate objective and that of

the State Board and Attorney General, the Leaders suggest that the Board’s institutional

interest in administering elections gives it a distinct goal, not shared by the Leaders: an

interest in expediently obtaining clear guidance from the courts as to what law will govern

upcoming elections. And it is true that the State Board acknowledged that interest in a

filing before the district court. See J.A. 589. But as we have explained, there is nothing

unreasonable about the adoption by state defendants of a litigation strategy designed to

produce an “expeditious final ruling on the constitutionality” of state law. Stuart, 706 F.3d

at 354. And here, the specific request of the State Board to which the Leaders allude – that

any temporary relief granted by the court be flexible enough to allow for prompt

implementation of the law if the preliminary injunction were later vacated – is consistent,

not in conflict, with its ultimate goal of defending the constitutionality of S.B. 824. See

NAACP II, 2019 WL 5840845, at *4 (explaining that “while a ‘primary objective’ of the

30
State Board in opposing the preliminary injunction was to ‘expediently obtain clear

guidance,’” that objective did not come at the expense of a defense of S.B. 824). 6

That brings us to the second of the standards the district court applied, requiring that

the Leaders, in seeking to rebut the Westinghouse presumption, “mount a strong showing

of inadequacy.” NAACP I, 332 F.R.D. at 169 (quoting Stuart, 706 F.3d at 352). We held

in Stuart that “a more exacting showing of inadequacy should be required where the

proposed intervenor shares the same objective as a governmental party,” like the State

Board here, as opposed to a private litigant. 706 F.3d at 351. Governmental entities are

entitled to this heightened presumption of adequacy, we reasoned, in part because they are

uniquely well-situated to defend a state statute under attack, given their ability to speak in

a representative capacity and their “familiarity with the matters of public concern that lead

to the statute’s passage in the first place.” Id. Focusing on that reasoning, the Leaders

argue that Stuart does not apply in a case like this one, where the proposed intervenor is

not a private party, as in Stuart, but rather another governmental entity, equally well-suited

to speak in defense of a state statute.

We agree with the Leaders to this extent: The better reading of Stuart is that it does

not by its terms control this case. But “that is not, by itself, a reason to reach another

6
That is enough to distinguish this case from Northeast Ohio Coalition for the
Homeless v. Blackwell, 467 F.3d 999 (6th Cir. 2006), in which the Sixth Circuit allowed
the State of Ohio and its legislature to intervene in defense of a voter-ID law. As the court
explained, no presumption of adequacy applied in that case because the interest of the
existing defendant, the Secretary of State, in smooth election administration meant that he
did not share the State’s objective of “defending the validity of Ohio laws.” Id. at 1008.

31
result.” See Kaul, 942 F.3d at 799 (addressing same question and choosing to extend prior

precedent calling for heightened presumption of adequacy for governmental defendants).

Rather, it leaves the question of whether Stuart’s heightened presumption of adequacy

should be afforded to government defendants even when other governmental entities, like

the Leaders here, seek to intervene on their side. We think it should.

Although some of Stuart’s reasoning does not translate to this context, one of its

main pillars does: A government defendant, given its “basic duty to represent the public

interest,” is a presumptively adequate defender of duly enacted statutes. Stuart, 706 F.3d

at 351. And when a “governmental official . . . is legally required to represent” the state’s

interest – as is the Attorney General here – then it is “reasonable, fair and consistent with

the practical inquiry required by Rule 24(a)(2) to start from a presumption of adequate

representation and put the intervenor to a heightened burden” to overcome it. Kaul, 942

F.3d at 810 (Sykes, J., concurring). Nothing about that conclusion, which reflects no more

than the normal assumption that government officials properly discharge their duties, see

United States v. Chem. Found., 272 U.S. 1, 14–15 (1926), should change just because the

proposed intervenor also is a government entity with its own public duties.

Moreover, as the Seventh Circuit explained in Kaul, in cases like this one, a

proposed intervenor’s governmental status makes a heightened presumption of adequacy

more appropriate, not less. A private party seeking to intervene can argue that although it

seeks the same objective as the state’s representative, the state’s interests – informed, as

they must be, by the concerns of the general public – do not perfectly overlap with his or

her more individualized interests. See Kaul, 942 F.3d at 801. But the Leaders – like the

32
legislature in Kaul – cannot make that argument, because they are seeking, as governmental

parties, to represent precisely the same state interests as the state defendants already in the

case. The Leaders, that is, “go[] further than sharing a goal with the Attorney General”;

they “intend[] to represent the same client,” the State of North Carolina. See id. (emphases

added). Under those circumstances, the “alignment” between the Attorney General and

the would-be governmental intervenors is one-for-one – closer than the alignment in Stuart.

Cf. Stuart, 706 F.3d at 353. And under those circumstances, as we have emphasized, the

Leaders have a right to intervene only if North Carolina’s Attorney General – charged by

state law with representing the same interests they seek to advance – is inadequately

representing his own State. Requiring a heightened showing of inadequacy to justify such

an “extraordinary finding” strikes us as entirely appropriate. See Kaul, 942 F.3d at 801.

Finally, the practical concerns we identified in Stuart about a less exacting standard

for inadequacy are not abated simply because a proposed intervenor is governmental and

not private. Government intervenors, no less than private ones, run the risk of rendering

litigation “unmanageable” in the federal courts. Kaul, 942 F.3d at 802; see Stuart, 706

F.3d at 350 (explaining “profound implications” of intervention on district courts’ trial

management). Faced with the prospect of intervention based only on a minimal showing

of inadequacy, the original government defendant “could be compelled to modify its

litigation strategy” to suit the putative intervenor’s preferences “or else suffer the

consequences of a geometrically protracted, costly, and complicated litigation.” Stuart,

706 F.3d at 351.

33
And those baseline concerns are only magnified in a case like this, in which a

government entity seeks intervention to represent the same state interest represented

already by a state attorney general. “If the [Leaders] were allowed to intervene as [of]

right, then [they] and the Attorney General could take inconsistent positions on any number

of issues beyond the decision whether to move to dismiss, from briefing schedules, to

discovery issues, to the ultimate merits of the case.” Kaul, 942 F.3d at 801. And at that

point – a point almost certain to arise in this case, if past is prelude – a federal district court

will have to “divin[e] the true position” and interests of the State of North Carolina, and

which of its representatives, the Leaders or the Attorney General, better represents it. Id.

Those are fundamentally political questions, and without a substantial presumption of

adequacy, federal courts could be required to take sides in these political battles on a regular

basis. See Planned Parenthood of Wis., Inc. v. Kaul, 384 F. Supp. 3d 982, 990 (W.D. Wis.

2019) (“[T]o allow intervention would likely infuse additional politics into an already

politically-divisive area of the law and needlessly complicate this case.”).

We do not, of course, question a sovereign state’s authority to designate its preferred

legal representative in court proceedings. See Bethune-Hill, 139 S. Ct. at 1951 (citing

Hollingsworth, 570 U.S. at 710). If North Carolina’s General Assembly, in its considered

judgment, believes that the Attorney General is not adequately representing the State in

this or any case, then it of course is free to remove the Attorney General and substitute

some other representative, including the Leaders. But what the Leaders are asking for is

more than that: The right of a state to designate not one but two representatives – or three,

or more, because there is no discernible limiting principle here – in a single federal case,

34
all purporting to speak for the state. See Kaul, 942 F.3d at 802. Under the Leaders’

approach, a federal court would be required to accommodate that cacophony of parties,

given the mandatory nature of Rule 24(a)(2), upon only a nominal showing of inadequacy,

and regardless of the “intractable procedural mess” that could follow. Id. at 801–02. With

full respect for the states’ sovereign autonomy, we decline to read Rule 24(a)(2) to leave

federal district courts effectively “powerless to control litigation involving states.” Id. at

802.

Accordingly, we take this opportunity to clarify that Stuart’s heightened

presumption of adequacy applies when governmental as well as private entities seek to

intervene on the side of governmental defendants. The district court therefore did not err

when it required the Leaders to make a “strong showing” of inadequacy to rebut the

Westinghouse presumption. NAACP I, 332 F.R.D. at 169. We note, however, that this

heightened presumption is not critical to the resolution of this case. As we explain below,

with or without the overlay of a “strong showing” requirement, the Leaders cannot

overcome the standard Westinghouse presumption that the State Board of Elections and

Attorney General are adequately pursuing the shared objective of defending S.B. 824’s

validity.

At this point in the analysis, we are in the heartland of the deference owed a district

court’s judgment under Rule 24(a)(2)’s adequacy prong. It is not for us to decide whether,

in our best view, the Leaders have demonstrated that the State Board and Attorney General

are inadequate representatives of the State’s interest in S.B. 824’s validity. That inquiry is

35
firmly committed to the discretion of the district court. Stuart, 706 F.3d at 349–50. The

only question before us is whether it can be said that the district court abused that wide

discretion when it found in its second order that the Attorney General, consistent with his

statutory duties, continued to provide an adequate defense of S.B. 824. We see no such

abuse of discretion here.

First, there is no ground to set aside the district court’s finding – and indeed, we do

not understand the Leaders to contest this point – that the State Board and Attorney General

in fact continue to defend S.B. 824. At the outset of its opinion denying the Leaders’

renewed motion to intervene, the district court determined that the Attorney General, on

behalf of the State Board, had taken and continued to take active steps to defend S.B. 824

in court. In this federal action, the court explained, the Attorney General had “consistently

denied all substantive allegations of unconstitutionality,” moved to dismiss the case on

federalism grounds, and recently filed an “expansive brief” opposing on the merits the

plaintiffs’ motion for a preliminary injunction. NAACP II, 2019 WL 5840845, at *3. And

in state court, the Attorney General had moved to dismiss five of six counts of the Holmes

plaintiffs’ complaint and opposed a preliminary injunction. See id. at *3–4. This was not

a case, in other words, in which the Attorney General actually had “abandoned” the defense

of S.B. 824 or indicated that he would do so in the future. Id. at *4.

In arguing that the Attorney General nevertheless is an inadequate representative of

the State’s interest in S.B. 824 – and that the district court abused its discretion in finding

otherwise – the Leaders consistently have advanced two central arguments. First, they

object to the way in which the Attorney General has chosen to defend S.B. 824. According

36
to the Leaders, the Attorney General’s litigation decisions in this action and in Holmes

demonstrate an “unwillingness to robustly defend S.B. 824,” id. at *2 (emphasis added),

that amounts to “nonfeasance” sufficient to rebut the Westinghouse presumption of

adequacy. The district court rejected that claim, id., finding only the kind of garden-variety

disagreements over litigation strategy that we and other courts consistently have deemed

insufficient to overcome a presumption of adequacy, whatever the precise strength of the

presumption and whether or not it includes a “strong showing” component, see Stuart, 706

F.3d at 349, 353; see also Kaul, 942 F.3d at 810–11 (Sykes, J., concurring). We think that

judgment falls well within the district court’s discretion. 7

With respect to this federal court litigation, for instance, the Leaders’ renewed

motion focused on an alleged lack of vigor in the State Board’s opposition to the NAACP’s

preliminary injunction request. In particular, the Leaders argued, the Board did not hire

experts to submit reports in opposition to that request, nor move to stay the preliminary

injunction once entered. But we confronted very similar objections in Stuart, in which the

7
In its first order, the district court cited our longstanding rule that Westinghouse’s
presumption of adequacy can be rebutted only by a showing of “adversity of interest,
collusion, or nonfeasance.” See NAACP I, 332 F.R.D. at 168 (quoting Westinghouse, 542
F.2d at 216). As the Leaders point out, there has been some criticism of courts’ treatment
of those factors, or factors like them, as necessary rather than sufficient to rebut the
presumption of adequacy. See 7C Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice & Procedure Civil § 1909 (3d ed. Oct. 2020 update); Kaul, 942 F.3d
at 807–10 (Sykes, J., concurring). We can leave that issue for another day. Here, the
district court found – in a determination to which we defer – that the Leaders’ only evidence
of inadequacy amounted to no more than differences over litigation tactics. However wide
the range of evidence that will rebut the presumption of adequacy, “disagreements about
litigation strategy” will not do the trick. See Kaul, 942 F.3d at 810 (Sykes, J., concurring).

37
proposed intervenor criticized the Attorney General for presenting only legal argument and

not factual evidence at the preliminary injunction stage, and for forgoing an appeal of a

preliminary injunction to litigate the case to final judgment. See Stuart, 706 F.3d at 353.

That sort of “disagreement over how to approach the conduct of the litigation,” we held, is

insufficient to rebut the presumption of adequacy, as evidence of either nonfeasance or

adversity of interests. Id. at 353–54; see also id. at 354 (“It was eminently reasonable for

the Attorney General to believe that the interests of North Carolina’s citizens would best

be served by an expeditious final ruling on the constitutionality of the Act, as opposed to

prolonged intermediate litigation over the preliminary injunction.”); Saldano v. Roach, 363

F.3d 545, 555 (5th Cir. 2004) (“Simply because the [intervenor] would have made a

different [litigation] decision does not mean that the Attorney General is inadequately

representing the State’s interest . . . .”).

And indeed, the course of litigation since the district court’s intervention decision

has only confirmed that the Attorney General’s litigation approach was well within the

range of acceptable strategy. After the district court issued a preliminary injunction, the

State Board promptly and successfully appealed that decision, securing a reversal of the

preliminary injunction. See N.C. State Conf. of the NAACP v. Raymond, 981 F.3d 295, 311

(4th Cir. 2020). Although we permitted the Leaders to intervene to make legal arguments

in that appeal, our reversal was based on the record the Attorney General created in the

district court, without the need for additional fact or expert evidence. See id. at 310–11.

Likewise, the district court was within its discretion in finding no new evidence of

nonfeasance or inadequacy in the Attorney General’s then-recent litigation choices in the

38
state-court Holmes case. 8 There, the Leaders faulted the State Board for seeking dismissal

of only five of the complaint’s six counts, reserving a dispositive challenge to the fact-

intensive claim of intentional discrimination for later in the proceedings. But as the district

court observed, the State Board’s approach was vindicated when the state court agreed to

dismiss all five claims it had challenged but not the intentional-discrimination claim

separately challenged by the Leaders. NAACP II, 2019 WL 5840845, at *3; see Stuart,

706 F.3d at 354 (“The reasonableness of the Attorney General’s choice is particularly

manifest given that it was largely successful . . . .”). The district court also addressed the

Leaders’ concern that the State Board had not mounted a “substantive defense” to the

preliminary injunction sought by the plaintiffs: that injunction was denied after both the

State Board and the Leaders opposed and argued against it, and there was no evidence, the

court found, that the credit for this victory should not be shared. See NAACP II, 2019 WL

5840845, at *4. Finally, though the Leaders alleged that the State Board took an

insufficiently aggressive approach to discovery in Holmes, the district court found it

“entirely reasonable” for the Board to “focus its energies elsewhere,” given that the

8
The district court expressed some doubt as to whether the State Board’s litigation
choices in Holmes – a case in a different forum, involving different (though overlapping)
parties and claims – had any bearing at all, “predictive” or otherwise, on the adequacy of
the State Board’s defense of S.B. 824 in this federal action. NAACP II, 2019 WL 5840845,
at *3. “Proposed Intervenors do not point to a single case suggesting that a defendant’s
performance . . . in one lawsuit invites intervention in another.” Id. at *3. Nevertheless,
the district court went on to review the conduct of the Holmes litigation, finding no
evidence of inadequate representation. Because we affirm that finding as within the district
court’s discretion, we need not decide what role, if any, inadequate representation in one
case should play in the application of Rule 24(a)(2) in another.

39
Leaders, by their own account, had taken the lead on these matters. See id.; see also

Appellants’ Br. 45.

In short, after canvassing the recent litigation conduct cited by the Leaders in their

renewed motion, the district court determined that the State Board, through the Attorney

General, continued to “actively and adequately” defend S.B. 824. See NAACP II, 2019

WL 5840845, at *2. The Leaders’ objections, the court concluded, remained “mere

strategic disagreements” about the pursuit of a shared objective, insufficient to rebut the

presumption of adequacy. Id. at *3. We owe substantial deference to that judgment, see

Stuart, 706 F.3d at 349–50, and see no reason to disturb it here. Indeed, we are inclined to

agree with the district court that the Leaders’ new evidence of alleged inadequacy – coming

in a case in which the Attorney General successfully moved to dismiss the Governor as a

defendant, vigorously opposed a preliminary injunction, and then successfully appealed

from the entry of that injunction – reflects no more than routine disagreement about

litigation tactics. And if those disagreements were themselves enough to rebut the

presumption of adequacy, that “would simply open the door to a complicating host of

intervening parties with hardly a corresponding benefit.” Id. at 353.

That leaves the Leaders’ second central argument: the suggestion that the Attorney

General is not mounting an even more aggressive defense of S.B. 824 because he, like the

Governor, is opposed to voter-ID laws as a matter of public policy. The Leaders point us

to past statements by both the Attorney General and the Governor opposing a prior voter-

ID law, arguing that it curtailed the right of North Carolina citizens to vote. And after he

assumed his current position, the Leaders emphasize, the Attorney General, acting on

40
behalf of the then-incoming Governor, moved to dismiss a petition for certiorari review of

a decision holding that same voter-ID law unconstitutional. See North Carolina v. N.C.

State Conf. of the NAACP, 137 S. Ct. 1399, 1399 (2017) (mem.). Whether framed as an

argument for collusion or for adversity of interests, the import of the Leaders’ claim is the

same: This Attorney General – as well as the State Board he represents, consisting of

members appointed by the Governor – cannot be trusted to defend S.B. 824. 9

That is a startling accusation. The Attorney General has a statutory duty to represent

and defend the State and its interests in this litigation. See N.C. Gen. Stat. § 114-2. And

that is to say nothing of his ethical obligations, which require zealous representation of his

client, see Revised Rules of Professional Conduct of the North Carolina State Bar, Rule

0.1[2] (preamble), and prohibit him from falsely assuring the district court that he is

“meeting [his] duty to defend this action,” J.A. 662; see Revised Rules of Professional

Conduct of the North Carolina State Bar, Rule 3.3 (candor to court). That the Attorney

General may have expressed policy views at odds with S.B. 824 in the past is no ground

for a federal court to infer that he would abdicate his official duty to the State by subterfuge,

mounting a sham defense of the statute. To suggest otherwise is a disservice to the

dignified work of government lawyers who each day put aside their own policy and

political preferences to advocate dutifully on behalf of their governments and the general

9
The district court expressly addressed this claim in its initial order denying
intervention, see NAACP I, 332 F.R.D. at 169–71, over which we lack jurisdiction. But
because the challenge here goes to the very probity of the lawyers before the district court,
we think it necessarily merges into the district court’s second assessment of the adequacy
of representation, before us now on appeal.

41
public. See Kaul, 942 F.3d at 810–11 (Sykes, J., concurring) (concluding that “political

and policy differences” between proposed legislative intervenor and state attorney general

regarding challenged law are not evidence of inadequate representation).

In any event, the district court found there was no evidence in the record indicating

that the Attorney General’s policy preferences left him without the proper “level of

interest” or “incentive” to robustly litigate on behalf of S.B. 824. NAACP I, 332 F.R.D. at

170. Nor, the court determined, has the Governor’s control of appointments to the State

Board caused the Board to fall short in its defense of that law. See id. at 171. Any

suggestion that the Governor might use his appointment power to direct the State Board or

Attorney General to slow-walk the State’s defense of S.B. 824, the court held, was no more

than “conclusory speculation,” insufficient on the current record to rebut the presumption

of adequate representation. Id. at 170, 171. We see no abuse of discretion in that

considered judgment. 10

10
On this en banc appeal, the Leaders point us to one new litigation development:
In the State Board’s successful appeal from the district court’s preliminary injunction, the
Governor filed an amicus brief urging us to affirm entry of the injunction to avoid
confusion during the 2020 election cycle. See Brief of Roy Cooper as Amicus Curiae, N.C.
State Conf. of the NAACP v. Raymond, No. 20-1092 (4th Cir. July 20, 2020). The
Governor’s brief, filed by private counsel, focused narrowly on the practicalities of lifting
the preliminary injunction right before an election and during a pandemic, and by itself
does not indicate that either the State Board or the Attorney General – who sought and won
a reversal of the preliminary injunction – had failed or would fail to adequately defend the
law on the merits. Given the limited nature of our review in this posture, we think it
appropriate for the district court to consider in the first instance what bearing this brief
might have on the adequacy of the State Board’s defense of S.B. 824 going forward, should
the Leaders again seek intervention.

42
That is not to say, of course, that there never could be a case in which a state attorney

general’s political opposition to a statute – or the opposition of some other state legal

representative – might cause an abdication of the duty to defend that law in court. Should

the Attorney General or State Board in fact abandon their defense of S.B. 824 in the future,

failing to file an appeal or petition for certiorari in the appropriate circumstance or

otherwise to litigate on the law’s behalf, then we would have the changed circumstance the

district court hypothesized in its first order denying intervention. At that point, the Leaders

would be free to seek intervention once again, and the district court free to reconsider the

Rule 24(a)(2) factors – and in particular, whether state law authorized the Leaders to step

into this newly created breach to represent the State’s interest in the validity of its statute.

But on the present record, we defer to the district court’s judgment that the Leaders’

renewed request for intervention as of right was premature and without support.

Finally, we turn to the district court’s reevaluation and reaffirmation, in its second

order, of its denial of permissive intervention under Rule 24(b). This is not the focus of

the Leaders’ appeal, and for good reason. Here, the deference accorded the district court

is at its zenith: The discretion Rule 24(b) affords the district court is “even broader” than

that under Rule 24(a)(2), R&G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584 F.3d

1, 11 (1st Cir. 2009), and “a challenge to the court’s discretionary decision to deny leave

to intervene must demonstrate a clear abuse of discretion in denying the motion,” McHenry

v. Comm’r, 677 F.3d 214, 219 (4th Cir. 2012) (internal quotation marks omitted). The

Leaders cannot meet that high standard.

43
The district court’s original decision to deny permissive intervention – while

allowing amicus participation – rested on its finding that the addition of the Leaders as

parties would result in unnecessary complications and delay, jeopardizing the court’s

ability to reach final judgment in a timely manner and likely prejudicing the plaintiffs, who

would be required to address “dueling defendants” with multiple litigation strategies all

purporting to represent the same state interest. NAACP I, 332 F.R.D. at 172. In its decision

reviewing the Leaders’ renewed motion – the decision on appeal – the district court

expressly reaffirmed that finding. NAACP II, 2019 WL 5840845, at *4. And indeed, the

court found, the Leaders’ litigation conduct in the intervening months – appealing a

purported “de facto” denial of their motion before the court had ruled on it, and seeking

the extraordinary remedy of mandamus – had only “further convinced” it that intervention

would “distract from the pressing issues in this case.” Id.

The Leaders disagree, as is their right, insisting that their presence as parties, rather

than amici, would facilitate and not hinder the prompt and equitable resolution of this

litigation. But the district court’s contrary conclusion is a factual judgment, informed by

its “on the scene presence” and going directly to its trial management prerogatives, to

which we owe the most substantial deference. See Stuart, 706 F.3d at 350 (internal citation

omitted). We have no grounds for setting aside the court’s finding as a “clear abuse of

discretion.” McHenry, 677 F.3d at 219. Moreover, that finding is sufficient by itself to

justify the denial of permissive intervention under Rule 24(b)(3), which mandates the

consideration of two – and only two – factors: undue delay and prejudice to existing

parties. See Fed. R. Civ. P. 24(b)(3); McHenry, 677 F.3d at 225 (describing undue delay

44
and prejudice as the “core considerations” under Rule 24(b)(3)). Whatever other

discretionary factors the court might have taken into account under Rule 24(b) – that is,

once it found that the Leaders’ intervention was likely to cause undue delay and prejudice

to the plaintiffs – it did not abuse its discretion, let alone “clearly” so, by denying

permissive intervention on that basis alone.

IV.

For the reasons given above, the judgment of the district court is affirmed.

AFFIRMED

45
WILKINSON, Circuit Judge, dissenting:

Every attorney general who looks in the mirror sees a governor. Or so it is said.

Therein lies a temptation. When a challenge is brought to an unpopular or controversial

state law, an attorney general’s defense of the law may be less than wholehearted. If the

plaintiffs in the case are politically influential, the temptation to pull punches becomes even

stronger. It casts no aspersions on anyone to note the obvious: North Carolina’s voter

photo ID law is a very controversial statute. See 2018 N.C. Sess. Laws 144.

The attorney general’s office exists at the crossroads of law and politics. Electoral

ambitions frequently collide with an AG’s obligations both to his client and to the court.

But this fact alone does not allow courts to be cynical. Perhaps I am naïve in not taking a

darker view of human nature, but I believe that when a state statute is under challenge, an

AG’s professional and ethical obligations—and certainly those of the Department of

Justice which he leads—will most often prevail over the political itch. The AG, after all,

is the state’s chief legal officer, and that should mean a lot.

How to disentangle the legal from the political? Trial courts are best equipped to

do so. The district court is best situated to assess the “adequacy” of an existing party’s

representation of a proposed intervenor’s interest. See Fed. R. Civ. Pro. 24. The parties

are right there in front of it. Adequacy moreover is a judgment call. The court of appeals

thus has a duty to respect the abuse of discretion standard under which a district court

operates and, beyond that, not to gratuitously make the administration of the trial court’s

docket an unmanageable task.

46
Open-ended intervention greatly complicates the trial court’s duty to have the trains

run on time. More coordination of such mundane matters as continuances, status

conferences, and discovery deadlines is required. Scheduling preferences are not the only

snag. The more parties to a litigation, the more inevitable divergences in strategy arise,

and the more complex the suit becomes. Intervenors are no aid to simplicity. Cf. Fed. R.

Civ. Pro. 24(b)(3) (recognizing the risk of delay in the context of permissive intervention).

Multi-party litigation tends to take longer to resolve and tends, as well, to run up attorneys’

fees. Incurring all these costs seems especially unnecessary where, for many a would-be

intervenor, amicus status is quite sufficient. In other cases, intervenors are best diverted

from litigation to the legislative realm. When appeals—like this one—are taken on

preliminary questions only tangentially related to the actual merits of the suit, the danger

of intervention interminability is compounded.

I find much to commend in Judge Harris’s opinion, which underscores these points

well. And here we face the added fact that the Attorney General has both taken an appeal

from the preliminary injunction entered against the state statute and prevailed before this

court in having the statute upheld. See NC State Conf. of the NAACP v. Raymond, 981

F.3d 295 (4th Cir. 2020).

So why then allow intervention? And here Judge Quattlebaum has ably presented

the argument. This case may present just that narrow set of circumstances in which

intervention should be permitted. For one, the prospective intervenor is not a private party

as in Stuart v. Huff, 706 F.3d 345 (4th Cir. 2013), but a coordinate branch of state

government. State law envisions a role for the General Assembly when a state statute is

47
under challenge. North Carolina has enacted statutes that ask federal courts to allow both

the executive and legislative branches of the state government to participate in actions

challenging the constitutionality of its laws. See N.C. Gen. Stat. § 1-72.2(a); see also id.

§§ 114-2, 120-32.6. As for the executive, the Attorney General of North Carolina has a

general statutory duty to represent the state, its agencies, and its officers in any court

proceedings. See id. § 114-2(1), (2). That is a common responsibility of attorneys general

across the nation. North Carolina, however, has seen fit to supplement the Attorney

General’s representation of the state when there are challenges to the constitutionality of

state statutes. North Carolina law allows for the General Assembly, through its two houses’

presiding officers, to represent the interests of the state. See id. §§ 1-72.2, 120-32.6.

While it is by no means clear that state law can mandate that federal courts allow a

single state to speak with dual voices in federal proceedings, it is altogether clear that

federal law itself has an especially important role to play in election law cases. No less an

authority than our Constitution leaves the legislatures of the states the power to

“prescribe[]” the “Times, Places and Manner of holding Elections.” U.S. Const. art. I, § 4,

cl. 1. This important task was not delegated to state government in general but to state

legislatures in particular. See id. The North Carolina photo ID law provides a clear

example of prescribing the “Manner of holding Elections.” Thus the “interests” of the

proposed intervenors in this case could hardly be more apparent. And in “divided

government” states like North Carolina, the danger that the executive or judicial branches

may seek to override the constitutionally prescribed legislative role is more than

theoretical.

48
As a result, given the confluence of factors before the court, I would recognize a

right to intervention in these narrowest of circumstances. I would not under any

circumstances let intervention loose as a contagious legal principle.

49
NIEMEYER, Circuit Judge, dissenting:

While I compliment Judge Harris’ craftsmanship in discussing Federal Rule of Civil

Procedure 24, I concur in Judge Quattlebaum’s fine opinion and request that he show me

as joining it. I write separately only to emphasize that the issue is, I believe, more than a

procedural one under Rule 24.

While intervention under Rule 24 is, to be sure, the relevant procedural question —

one of federal law — the relevant parties and their interests are substantive issues that are

to be determined by state law, and this aspect is mostly finessed by the majority’s ruling.

To accomplish its result, the majority collapses, for purposes of its discussion, the North

Carolina parties into the singular “State of North Carolina” and their interests into the

singular “State’s interest.” It then concludes that under Rule 24 the Attorney General is

adequately representing North Carolina and North Carolina’s interests and therefore no

other party having an interest in a North Carolina statute may intervene. I think this is

more than a convenient formulation, as it fails to address the inherent underlying issues

necessary in deciding the Rule 24 motion.

The plaintiffs in this case seek a declaration that a North Carolina election law is

invalid, and they named as defendants the Governor and the North Carolina State Board of

Elections. Yet, state law anticipates that the State will be sued when the validity or

constitutionality of an act of the General Assembly is challenged. See N.C. Gen. Stat.

§ 1-72.2(a). Section 1-72.2(a) provides that the “General Assembly and the Governor

constitute the State of North Carolina” in such a suit, and therefore, a court should allow

the General Assembly and the Governor “to participate in” “any action in any federal court

50
in which the validity or constitutionality of an act of the General Assembly . . . is

challenged.” Id. That is declared to be the “public policy of the State.” Id. And state law

further authorizes the General Assembly to retain counsel of its own choosing and not

necessarily the Attorney General, thus contemplating that the General Assembly might find

the Attorney General’s counsel inadequate or otherwise undesirable. See N.C. Gen. Stat.

§ 1-72.2(b). The majority opinion fails to take proper account of this state law, which I

suggest lies at the substantive root of this case.

To be sure, the procedural principles of Rule 24 intervention must be applied in this

case to ensure that the proper parties are before the court. But underlying that application

are questions of substantive state law regarding who the relevant parties are and who

defends the state’s interest. The majority opinion does not, except most obliquely, address

these questions. And its failure to recognize these aspects is especially significant in view

of the history of S.B. 824, which entails a story of political conflicts and differences

between the branches of North Carolina government. Indeed, giving homage to state law

in these circumstances seems to be explicitly mandated, as the Supreme Court noted when

it stated, “If the State had designated the House to represent its interests, and if the House

had in fact carried out that mission, we would agree that the House could stand for the

State.” Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019).

Here, the State of North Carolina, as sovereign, did designate the General Assembly

to represent its interests. And if we give its choice effect, then the analysis conducted by

the majority in concluding that the General Assembly may not be allowed to intervene

51
under Federal Rule 24 because the Attorney General is doing a good job is substantively

flawed.

52
QUATTLEBAUM, Circuit Judge, with whom Judges NIEMEYER, AGEE,

RICHARDSON, and RUSHING join, dissenting:

North Carolina recognized a potential problem. It anticipated that there could be

times when its executive branch would not vigorously enforce the state’s duly-enacted

legislation. To address that concern, North Carolina passed a law that requests the North

Carolina General Assembly be permitted, alongside the executive branch, to defend any

federal action challenging a North Carolina statute.

More specifically, North Carolina enacted N.C. Gen. Stat. § 1-72.2, first passed in

2013 and modified in 2017, which provides that for any action challenging an act of the

General Assembly, “[i]t is the public policy of the State of North Carolina that . . . the

General Assembly, jointly through the Speaker of the House of Representatives and the

President Pro Tempore of the Senate, constitutes the legislative branch of the State of North

Carolina; the Governor constitutes the executive branch of the State of North Carolina;

[and] that, when the State of North Carolina is named as a defendant in such cases, both

the General Assembly and the Governor constitute the State of North Carolina . . . .” N.C.

Gen. Stat. § 1-72.2(a) (emphasis added). It then requests that a federal court presiding over

an action where the State of North Carolina is a named party allow both the legislative

branch and the executive branch of the State of North Carolina to participate as a party in

such an action. 1 Id.

1
North Carolina passed other laws to address this same concern. For example, N.C.
Gen. Stat. § 120-32.6 provides “[w]henever the validity or constitutionality of an act of the
General Assembly or a provision of the Constitution of North Carolina is the subject of an

53
Subsequently, North Carolina passed its current voter identification bill. In

response, the state chapter of the NAACP and several county branches (collectively the

“NAACP”) sued North Carolina’s Governor—who, like the NAACP, opposed the bill—

and the members of the State Board of Elections that the Governor appointed, claiming the

law was unconstitutional.

North Carolina’s Attorney General, who also publicly opposed the law, was tasked

with defending it on behalf of the Governor and the State Board of Elections. The authority

for the Attorney General to defend the law was grounded in North Carolina law. N.C. Gen.

Stat. Ann. § 114-2 provides that “[p]ursuant to Section 7(2) of Article III of the North

Carolina Constitution, it shall be the duty of the Attorney General: (1) To defend all actions

in the appellate division in which the State shall be interested, or a party, and to appear for

the State in any other court or tribunal in any cause or matter, civil or criminal, in which

the State may be a party or interested.”

However, North Carolina’s Speaker of the House of Representatives and President

Pro Tempore of the Senate (the “Leaders”) believed that the NAACP’s challenge to the

voter identification law involved the exact situation contemplated by N.C. Gen. Stat. § 1-

72.2. As a result, they moved to intervene to defend the law. They claimed a significantly

protectable interest in the litigation that, without intervention, would practically be

action in any State or federal court, the Speaker of the House of Representatives and the
President Pro Tempore of the Senate, as agents of the State through the General Assembly,
shall be necessary parties and shall be deemed to be a client of the Attorney General for
purposes of that action as a matter of law and pursuant to Section 7(2) of Article III of the
North Carolina Constitution.”

54
impaired. And they claimed that their interest was not being adequately represented by the

Governor and the State Board of Elections due both to the public opposition to the bill

expressed by the Governor and the Attorney General and to what they described as the

half-hearted way the Attorney General was defending the law in this case and in a parallel

case in state court—Holmes v. Moore, No. 18-cv-15292 (N.C. Super. Ct.). The district

court denied the Leaders’ motion to intervene, prompting this appeal.

For good reason, district courts are afforded discretion in resolving motions to

intervene. Appellate courts should generally avoid micromanaging district courts in such

matters. But this is not your run of the mill intervention case. Here, the district court

excluded from its analysis the express policy of North Carolina as reflected in its

democratically-enacted statutes. Although federal courts need not completely defer to that

public policy decision, the district court cannot fail to give the State’s choice any weight.

The district court also applied the incorrect legal standard, extending the heightened

burden of a “strong showing” of inadequacy to circumstances where, until today, it did not

apply. For both of these reasons, I would vacate the district court’s order denying

intervention and remand so that the district court can consider the requested intervention,

evaluating all relevant factors, under the proper legal standard.

In 2018, the North Carolina General Assembly ratified Senate Bill 824, titled “An

Act to Implement the Constitutional Amendment Requiring Photographic Identification to

Vote” (“S.B. 824”), which established, among other things, photographic voter

55
identification requirements for elections in North Carolina. Governor Roy Asberry Cooper,

III, vetoed the bill, explaining that requiring “photo IDs for in-person voting is a solution

in search of a problem.” J.A. 128. Governor Cooper went on to state that “the fundamental

flaw in the bill is its sinister and cynical origins: It was designed to suppress the rights of

minority, poor and elderly voters. The cost of disenfranchising those voters or any citizens

is too high, and the risk of taking away the fundamental right to vote is too great, for this

law to take effect.” J.A. 128.

The Senate and House voted to override the veto. Thus, S.B. 824 was enacted as

North Carolina Session Law 2018-144. The day after it was passed, the NAACP sued

Governor Cooper; the Chair of the North Carolina Board of Elections; the Secretary of the

North Carolina State Board of Elections; and seven other members of the North Carolina

State Board of Elections 2 (the “State Defendants”) challenging the validity of S.B. 824. In

its complaint, the NAACP contends that S.B. 824 has a disparate impact on African

American and Latino citizens of North Carolina in violation of Section 2 of the Voting

Rights Act of 1965, 42 U.S.C. § 1973, as well as the Fourteenth and Fifteenth Amendments

to the United States Constitution.

Relevant here, in challenging S.B. 824, the NAACP sued the Governor—who

publicly and aggressively opposed the bill—and the State Board of Elections—which is

made up of members appointed by the Governor. As a result, the parties defending S.B.

2
Because the State Board was reconstituted to consist of five governor-appointed
members after the complaint was filed, those members were substituted as parties to the
action in the district court as reflected in the district court’s order.

56
824 were parties with a historical opposition to the law or entities under the indirect control

of such parties. Further, the Attorney General tasked to represent the State Defendants has

a similar history of opposing North Carolina’s voter ID laws. For example, in early 2017,

Attorney General Josh Stein moved to dismiss a petition to the United States Supreme

Court in North Carolina v. North Carolina State Conference of NAACP, a suit regarding

the North Carolina voting law passed in 2013. See North Carolina v. N.C. State Conf. of

NAACP, 137 S. Ct. 1399 (2017). He also issued a press release that same day stating that

he supported “efforts to guarantee fair and honest elections, but those efforts should not be

used as an excuse to make it harder for people to vote.” J.A. 142. From a perception

standpoint, the action bore the hallmarks of a friendly suit.

In January 2019, the Leaders moved under Federal Rule of Civil Procedure 24 to

intervene on behalf of the North Carolina General Assembly to oppose the NAACP’s

challenges to S.B. 824. Seeking to intervene as a matter of right under Rule 24(a) and,

alternatively, permissively under Rule 24(b), the Leaders argued that state law, specifically

N.C. Gen. Stat. § 1-72.2(a) and (b), expresses the public policy of the State of North

Carolina that the President Pro Tempore of the Senate and the Speaker of the House

represent the State of North Carolina in defense of its statutes. They further argued that

N.C. Gen. Stat. § 1-72.2 requests that federal courts permit their intervention to adequately

represent the State and General Assembly’s interests where the constitutionality of statutes,

like S.B. 824, is challenged. The State Defendants neither consented nor objected to the

motion to intervene, while the NAACP opposed the requested intervention.

57
In June 2019, the district court denied the motion to intervene, largely concluding

that the State Defendants were represented by the Attorney General, who under North

Carolina law, is charged with representing the State in defense of its existing laws, that the

State Defendants had not abdicated their responsibility to defend S.B 824, and that,

accordingly, the Leaders failed to make the requisite “strong showing of inadequacy” to

overcome the presumption of adequate representation. The district court’s denial was

without prejudice and invited a renewed motion if the Leaders could show that the State

Defendants no longer intended to defend the lawsuit and the requirements for intervention

were otherwise satisfied. While denying the motion to intervene, the district court allowed

the Leaders to participate in the action by filing amicus curiae briefs.

Six weeks later, in July, the Leaders filed a renewed motion to intervene, arguing

that it was apparent that the State Defendants would not fully defend S.B. 824. In

November, the district court denied the renewed motion. The court concluded that its

previous Rule 24 analysis, as set forth in its initial order, remained “the law of this case,”

focusing on whether the Leaders presented newly available evidence demonstrating that

the State Defendants declined to defend this lawsuit. J.A. 3239, 3241. It then evaluated the

Leaders’ new allegations, determining they did not involve any new evidence. The district

court thus denied the renewed motion to intervene, this time with prejudice, and reiterated

that the Leaders could participate in the action by filing amicus curiae briefs.

On November 11, 2019, the Leaders filed a notice of appeal from the order denying

their renewed motion to intervene.

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II.

We review the denial of a motion to intervene for abuse of discretion. In re Sierra

Club, 945 F.2d 776, 779 (4th Cir. 1991). But while our review is deferential, we still must

ensure that the district court included the relevant factors in its intervention analysis. See

Hill v. W. Elec. Co. Inc., 672 F.2d 381, 387 (4th Cir. 1982) (“[W]e think the court failed to

consider or gave insufficient weight to another factor possibly militating in favor of

intervention.”). Another of our responsibilities is to ensure that intervention decisions are

not based on incorrect legal principles. See Stuart v. Huff, 706 F.3d 345, 349–50 (4th Cir.

2013); see also Feller v. Brock, 802 F.2d 722, 729–30 (4th Cir. 1986) (finding that denial

of intervention as of right to apple pickers was reversible error and admitting intervenors

as parties-defendant); Hill, 672 F.2d at 385–86, 392 (remanding action for proper

consideration of the motion for permissive intervention because the district court did not

properly apply legal standards). Here, the district court erred in both respects. It first

ignored North Carolina’s law requesting two agents in cases challenging the

constitutionality of its duly-enacted statutes. And then it compounded the error by setting

the bar for the Intervenors to clear too high.

III.

Federal Rule of Civil Procedure 24 permits two types of intervention: intervention

as a matter of right under subsection (a) and permissive intervention under subsection (b).

The Leaders first claim that they are entitled to intervene as a matter of right. They

alternatively claim they should be able to intervene permissively.

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A.

Rule 24(a)(2) allows intervention as of right when the movant 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 movant’s ability

to protect its interest,” unless the movant’s interest is adequately represented by existing

parties. Fed. R. Civ. P. 24(a)(2). There are three requirements for intervention as of right.

“[T]he moving party must show that (1) it has an interest in the subject matter of the action,

(2) disposition of the action may practically impair or impede the movant’s ability to

protect that interest, and (3) that interest is not adequately represented by the existing

parties.” Newport News Shipbuilding and Drydock Co. v. Peninsula Shipbuilders’ Ass’n,

646 F.2d 117, 120 (4th Cir. 1981). Although the Majority’s decision is limited to the

adequacy requirement, I will consider all three. 3

3
The Majority concludes that our jurisdiction over this appeal is limited to the
district court’s narrow focus in its second order denying intervention on the application of
Rule 24(a)(2)’s adequacy prong to the Attorney General’s defense of S.B. 824. Maj. Op.
at 20. I do not find our jurisdictional focus to be as narrow as the Majority. The district
court’s June 2019 order, which denied the initial motion to intervene without prejudice,
should not be regarded as an appealable final order. In addition to being issued without
prejudice, the order did not outright deny the motion to intervene and invited the Leaders
to file a renewed motion. Thus, in my view, it was not sufficiently final to trigger immediate
review. In contrast, the second order was a final order. Importantly, the second order relied
on the reasoning from the first order and, in doing so, signified that the first order “should
continue to govern the same issues in subsequent stages in the same case.” See Christianson
v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (quoting Arizona v. California,
460 U.S. 605, 618 (1983)). The court then denied the Leaders’ motion with prejudice. For
those reasons, I would find that the second order, including its analysis and reference to
the earlier order, was sufficiently conclusive for appellate review. See Hodgson v. United
Mine Workers of Am., 473 F.2d 118, 126–27 (D.C. Cir. 1972) (“We are satisfied that the
June 20 order . . . constituted a fresh evaluation of the intervention application, well within

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1.

A party seeking to intervene must have “an interest relating to the property or

transaction that is the subject of the action . . . .” Fed. R. Civ. P. 24(a)(2). The district court

found that the Leaders lacked a sufficient interest because the Executive State Defendants

had not completely abdicated their responsibility to defend S.B. 824. J.A. 378 (holding that

“because State Defendants in this action are presently defending the challenged legislation

and have expressed no intention to do otherwise, [the Leaders] have failed to demonstrate

that they have a significantly protectable interest in likewise defending the constitutionality

of S.B. 824 sufficient to warrant a right to intervene under Rule 24(a)(2)”). This analysis

disregards the North Carolina law requesting federal courts permit the General Assembly

to defend state statutes in federal court.

Rather than look to the North Carolina law, the district court relied on cases finding

that individual legislators lack a sufficient protectable interest to intervene in litigation over

statutes for which they voted. As a general principle, I agree. But that is not what we have

the discretionary power of the District Court to make, and amenable to review on the merits
by this court.”).

Additionally, the Majority’s view of our jurisdiction has a decided impact on what
part of its opinion constitutes binding precedent going forward. The Majority’s decision
concerning jurisdiction effectively resolves the first two requirements against the Leaders.
Consequently, while its jurisdictional analysis is binding precedent of this Circuit, the
Majority’s subsequent discussion of the adequacy issue, properly construed, is dicta and
not binding in future cases. See Pittston Co. v. United States, 199 F.3d 694, 703 (4th Cir.
1999) (“Dictum is [a] ‘statement in a judicial opinion that could have been deleted without
seriously impairing the analytical foundations of the holding—that, being peripheral, may
not have received the full and careful consideration of the court that uttered it.’” (quoting
United States v. Crawley, 837 F.2d 291, 292 (7th Cir. 1988)).

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here. The Leaders rely not only on their general position as legislators, but also on N.C.

Gen. Stat. § 1-72.2. Under the statute, in any action in federal court challenging the validity

or constitutionality of an act of the General Assembly or a provision of the North Carolina

Constitution, “[i]t is the public policy of the State of North Carolina that . . . the General

Assembly, jointly through the Speaker of the House of Representatives and the President

Pro Tempore of the Senate, constitutes the legislative branch of the State of North Carolina;

the Governor constitutes the executive branch of the State of North Carolina; [and] that,

when the State of North Carolina is named as a defendant in such cases, both the General

Assembly and the Governor constitute the State of North Carolina . . . .” N.C. Gen. Stat.

§ 1-72.2(a) (emphasis added). It goes on to request that a federal court presiding over an

action where the State of North Carolina is a named party allow both the legislative branch

and the executive branch of the State of North Carolina to participate as a party in such an

action. Id.

Importantly, this statute does not limit the role of the General Assembly to instances

in which the executive branch declines to defend or participate in the action. Of course, as

the district court noted in its initial order, § 1-72.2 only requests that a federal court allow

the legislative branch to participate. The requirements of Rule 24(a)(2) must still be

satisfied. But statutes of a separate sovereign that express the state’s interest and role in the

litigation cannot be cast aside and excluded from the merits of the intervention decision. In

other words, while this North Carolina statute does not mandate federal intervention, it sets

forth the nature of the state’s interests.

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Neither the Supreme Court nor this Court has imposed the standard followed by the

district court—that the Attorney General must decline to defend the lawsuit in order to

trigger a protectable interest on the part of the Leaders. In fact, Supreme Court

jurisprudence, while perhaps not squarely on point, suggests the opposite.

In Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019), the

Supreme Court addressed whether the Virginia House of Delegates and its Speaker had, as

intervenors, standing to appeal to defend Virginia’s redistricting plan after the

Commonwealth of Virginia announced it would not file an appeal to the Supreme Court.

Bethune-Hill, 139 S. Ct. at 1950. The Commonwealth moved to dismiss the House’s appeal

for lack of standing. The Supreme Court granted that motion and dismissed the appeal. The

Court held that the “House, as a single chamber of a bicameral legislature, has no standing

to appeal the invalidation of the redistricting plan separately from the State of which it is a

part.” Id. But while holding that the House lacked standing there, Bethune-Hill also

emphasized “a State has standing to defend the constitutionality of its statute.” Id. at 1951

(citation omitted). “[A] State must be able to designate agents to represent it in federal

court,” and “if the State had designated [a legislative branch] to represent its interests . . .

the [legislative branch] could stand in for the State.” Id. (citation omitted). That choice, the

Court explained, “belongs to Virginia.” Id. at 1952. While in that case, Virginia had chosen

to speak only with “a single voice,” that of the executive, nothing in the opinion suggested

it could not have dual agents. Id. Indeed, the main point from Bethune-Hill is that states

have great deference in deciding who represents their interests. Id. at 1952.

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The Supreme Court’s guidance in Bethune-Hill is consistent with its earlier decision

in Hollingsworth v. Perry, 570 U.S. 693 (2013). There, the Court held that “the Speaker

and the President, in their official capacities, could vindicate that interest in federal court

on the legislature’s behalf,” noting that “a State has a cognizable interest ‘in the continued

enforceability’ of its laws that is harmed by a judicial decision declaring a state law

unconstitutional.” Hollingsworth, 570 U.S. at 709–10 (citations omitted). And the Court

further provided that “[t]o vindicate that interest or any other, a State must be able to

designate agents to represent it in federal court,” because a state is a political corporate

body that can only act through its agents. Id. at 710 (citing Poindexter v. Greenhow, 114

U.S. 270, 288 (1885)). “That agent is typically the State’s attorney general. But state law

may provide for other officials to speak for the State in federal court . . . .” Id.

And here the Leaders represent the entire bicameral legislative branch in North

Carolina, making this matter comparable to Arizona State Legislature v. Arizona

Independent Redistricting Commission, 135 S.Ct. 2652 (2015). In that case, the Court

recognized the Arizona legislature’s standing to challenge a ballot initiative threatening its

authority over redistricting. See also Arizonans for Official English v. Arizona, 520 U.S.

43, 65 (1997) (“We have recognized that state legislators have standing to contest a

decision holding a state statute unconstitutional if state law authorizes legislators to

represent the State’s interests.”).

As the Majority points out, in Bethune-Hill, Hollingsworth and Arizonans for

Official English, the state representative was no longer defending the state or declined to

appeal an adverse ruling. That distinction, to the Majority, means those decisions have little

64
bearing here. I disagree. In emphasizing the principle that a state must be able to designate

its agents to represent it in federal court, none of those decisions limited that principle to

situations where the initial agent was no longer participating in the defense or declined to

appeal an adverse ruling. For example, and most recently, the Supreme Court, in Bethune-

Hill, reiterated the Court’s earlier holding that “a State must be able to designate agents”

for representation in federal court. Bethune-Hill, 139 S. Ct. at 1951 (quoting Hollingsworth,

570 U.S. at 710). Relevant here, the Court referenced “agents”—plural not singular,

without further limitation. See id. Thus, I would not impose on these Supreme Court

decisions a limitation not imposed by the Court itself.

Finally, in determining that the Leaders lacked a sufficient interest in the S.B. 824

litigation, the district court also found the Leaders’ reliance on the Supreme Court case

Karcher v. May, 484 U.S. 72 (1987), misplaced. The district court reasoned that the issue

before the Supreme Court there was whether public officials, who participated as

intervenors in their official capacities, could continue to appeal an adverse judgment after

leaving office—an issue that the district court indicated is not present here. Respectfully,

the district court reads Karcher too narrowly. Karcher also confirmed that “[t]he authority

to pursue the lawsuit on behalf of the legislature belongs to those who succeeded [the

legislators] in office.” Id. at 77. Although the issues presented here may not be identical to

those presented there, Karcher reiterates the role that active legislators play in defending a

lawsuit depends on a particular state’s law, which is an issue relevant to the interests

asserted by the Leaders.

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Bethune-Hill, Hollingsworth, Arizona State Legislature and Karcher 4 indicate that

the determination of the sufficiency of the interests of the Leaders in this litigation requires

a careful consideration of N.C. Gen. Stat. §1-72.2(a). In my view, the district court failed

to do this. Although it cited the statute in full in its first order, its only discussion of the

statute in relation to the question of the Leaders’ interests was mentioning how the statute

only requested that a federal court allow intervention. That is, of course, true as far as it

goes. But that brief discussion does not go to the merits of the Leaders’ interest in the case.

Even though the North Carolina statute does not require that the Leaders’ motion be

granted, that statute bears on the merits of the intervention decision.

And this is the case even if you follow the Majority’s view that we may only review

the second order. When the district court issued its initial order, it lacked the benefit of

Bethune-Hill. But its second order addresses Bethune-Hill, even if only in a footnote,

stating, without analysis, that Bethune-Hill does not “change the calculus.” J.A. 3241. The

second order also cites N.C. Gen. Stat. §1-72.2(a). Despite Bethune-Hill’s guidance,

however, the district court only refers to the statute a single time, stating that it is “far from

clear whether [the Leaders] are authorized to intervene when the State Board and Attorney

General are already defending a suit in federal court.” Id. Importantly, just as it failed to

analyze Bethune-Hill, the district court failed to analyze the North Carolina statutes,

4
Although these decisions primarily focus on standing, the issues presented overlap
with the question of the movant’s interests in the litigation under Rule 24(a)(2). See
generally Hollingsworth, 570 U.S. at 710 (noting the legislature’s authority to represent
the state’s interests).

66
concluding that it did not have to do so as long as the State Board and Attorney General

were defending the suit. Once again, it is not our job to micromanage how the district court

weighs the relevant factors in the intervention analysis. But it is our job to ensure that

relevant factors, one of which here is §1-72.2(a), are not excluded from the analysis. I

would remand the case to the district court to consider the North Carolina statute in the

analysis of the Leaders’ interest in the litigation—with particular attention to the Supreme

Court’s instructions that the state may choose its agents to defend its statutes in federal

court and that the North Carolina statute does so here.

Having found no protectable interest, the district court predictably found the

Leaders failed to satisfy Rule 24(a)’s second requirement—whether the disposition of this

case would practically impair or impede their ability to protect their interest absent

intervention. As a remand is needed to address the Leaders’ alleged protectable interest,

remand is also necessary to address this second requirement.

Finally, I turn to adequate representation—the third requirement for intervention as

of right. On this issue, the Leaders complain the State Defendants have consistently failed

to adequately defend North Carolina’s voter identification legislation. They argue that the

State Defendants’ efforts have been less than rigorous in Holmes, the parallel state court

case, which, according to Leaders, is consistent with the State Defendants’ withdrawal of

a viable petition for certiorari to the Supreme Court in litigation over North Carolina’s prior

voter identification law. Further, the Leaders argue the State Defendants have continued

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this pattern since the order denying intervention. Specifically, the State Defendants elected

not to call expert witnesses at the hearing on the preliminary injunction over the

implementation of S.B. 824 and have represented that they will not call experts at the trial.

In addition, the Governor has filed an amicus brief in support of the NAACP regarding the

appeal of the preliminary injunction issued by the district court. Finally, the Leaders point

to the public comments of the Governor and Attorney General described above. They claim

this record reveals an adversity of interest with the State Defendants which satisfies Rule

24(a)’s inadequacy requirement.

The district court, as noted above, determined that the Leaders had not made a

sufficient showing of inadequacy. While we afford district courts discretion in resolving

motions to intervene, a court necessarily abuses its discretion when it applies the wrong

legal standard to evaluate adequacy and when it excludes pertinent factors from

consideration. Here, the district court did both.

Beginning with the legal standard for adequacy, the district court initially

acknowledged that a would-be intervenor generally bears a minimal burden of showing

inadequacy of representation by an existing party. See Trbovich v. United Mine Workers,

404 U.S. 528 (1972). But it also applied a presumption of adequacy from our

Commonwealth of Virginia v. Westinghouse Electric Corporation, 542 F.2d 214, 216 (4th

Cir. 1976) decision that arises when a party seeking intervention has the same ultimate

objective as a party to the suit. Under that presumption, the proposed intervenor must

establish one of three factors—adversity of interest, collusion or nonfeasance—to

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overcome this presumption and meet the inadequacy requirement. The district court

identified those three factors and attempted to apply them in its order.

The district court then concluded its adequacy analysis by holding “[the Leaders]

have failed to sustain their burden of demonstrating the requisite ‘strong showing of

inadequacy’ to overcome the presumption of adequate representation by State Defendants

and their counsel, the Attorney General.” J.A. 386 (emphasis added). In using the phrase

“strong showing of inadequacy,” the district court added a heightened burden to overcome

the Westinghouse presumption. In imposing that heightened burden, it cited our decision

in Stuart v. Huff, 706 F.3d 345 (4th Cir. 2013), which requires intervenors to “mount a

strong showing of inadequacy” where defendants are represented by a government agency.

Stuart, 706 F.3d at 352.

I disagree that the Leaders needed to overcome that presumption by the heightened

standard of a “strong showing.” See Trbovich, 404 U.S. at 538 n.10. That heightened

standard from Stuart does not, and should not, apply here.

In Stuart, abortion-services providers sued state officials over a North Carolina

statute restricting abortions. 706 F.3d at 347. A group of pro-life medical professionals and

others sought to intervene claiming the state defendants would not adequately protect their

interests. Thus, we addressed whether “to permit private persons and entities to intervene

in the government’s defense of a statute . . . .” Id. at 351 (emphasis added). We held that,

in such a situation, “the putative intervenor must mount a strong showing of inadequacy”

in the context of those private persons and entities on the basis of government entities’ duty

to represent the people in public litigation matters. Id. at 352.

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We explained two primary reasons for requiring a “strong showing” of inadequacy.

First, we noted that in the face of a constitutional challenge to its statute, “the government

is simply the most natural party to shoulder the responsibility of defending the fruits of the

democratic process.” Id. at 351. We added “[i]t is after all the government that, through the

democratic process, gains familiarity with the matters of public concern that lead to the

statute’s passage in the first place.” Id. Our discussion distinguished between the

government and private citizens. And it is eminently reasonable to make that distinction.

But in Stuart, we did not distinguish between different officials or branches of the

government, and to do so now would not be reasonable. With no intent to disparage the

Attorney General, I see no reason he is either the “most natural” agent to defend S.B. 824—

a law that he has publicly opposed— or is more familiar with the matters of public concern

that led to its passage in the first place as opposed to the Leaders. If anything, it would be

more natural for the agents of the government that supported passage of the statute to

defend its constitutionality than those who openly opposed it. That, of course, is a judgment

best left to states. And when, like here, the state makes such a judgment, it must be

considered when determining whether to permit intervention in a federal lawsuit

challenging a state statute like S.B. 824.

Second, we noted that “to permit private persons and entities to intervene in the

government’s defense of a statute upon only a nominal showing would greatly complicate

the government’s job.” Id. That makes sense. Allowing private citizens party status in a

state’s defense of its laws raises a host of concerns ably identified in Stuart. But this, of

course, is not a case where a member of the public is seeking to intervene in the

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government’s defense. The Leaders here, like the State Defendants, are representatives of

the State of North Carolina. In fact, they have been designated by that State as its agents

for defending the constitutionality of North Carolina’s laws. And while one might argue

that allowing a second governmental entity to intervene to represent North Carolina

complicates the government’s job, any such complication is its own doing. When, as here,

a state passes a statute designating its agents for defending the constitutionality of its laws,

it is not for us to second guess that decision.

Stuart was, and remains, an important decision. Nothing I say here is intended to

suggest otherwise or to in any way carve back its application. But the “strong showing”

standard it imposed was for situations in which private litigants seek to intervene in the

government’s defense. The reasons set forth in Stuart for requiring a “strong showing” of

inadequacy simply are not present here. Thus, Stuart does not govern and should not be

expanded. That does not mean the Leaders’ motion should be granted. It just means it

should not be saddled with the heightened burden of making a “strong showing.”

The Majority, in concluding that Stuart should be extended, relies in part on the

Seventh Circuit’s decision in Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793

(7th Cir. 2019). And Kaul does, in fact, impose a heightened burden—one requiring a

proposed intervenor to establish gross negligence or bad faith—to overcome the

presumption of adequacy that circuit applied when a state attorney general was defending

the constitutionality of a law. Id. at 801. In fact, the burden it imposes is more onerous than

that required under Stuart. But with respect to the Majority and our sister circuit, I find the

burden Kaul applied is too far removed from the text of Rule 24 to be persuasive. After all,

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the Rule itself imposes no presumption. In my view, any judicially created presumption

should be undertaken with care. And I respectfully disagree with the Majority’s suggestion

that Kaul aligns with our Stuart decision. Following Kaul would extend Stuart beyond its

context of a private citizen seeking to intervene to defend the constitutionality of a state

law and impose, without justification, a heightened burden not found in Rule 24.

Further, I find the reasoning of Kaul puzzling. There, the Seventh Circuit left no

doubt that it would defer to the Legislature if it were to designate one agent to represent

the state regardless of which entity it was. In fact, the Seventh Circuit said it could “see no

reason why a federal court would bat an eye if a state required its attorney general to

withdraw from his representation and allow another entity, including a legislature, to take

over a case.” Kaul, 942 F.3d at 802. It would not, however, defer to a statute that called for

the Legislature to litigate alongside the Attorney General. But in Bethune-Hill,

Hollingsworth, Arizona State Legislature and Karcher, the Supreme Court has made clear

that states should be able to select their agents to defend the constitutionality of their laws

and here we have statutory language that gives the North Carolina General Assembly final

decision-making authority with respect to the defense of a challenged act. See N.C. Gen.

Stat. Ann. § 120-32.6. That said, I see no reason we should have any more of a problem

with a state selecting two representatives than with it selecting one. The key point is that it

is the state’s choice.

Kaul also contends a heightened burden is needed to avoid drawing the district

courts into an “intractable procedural mess that would result from the extraordinary step of

allowing a single entity, even a state, to have two independent parties simultaneously

72
representing it.” Id. at 801. I agree that having two independent parties representing a state

is unusual. But in my view, it is going too far to impose a heightened burden based on that

risk. After all, district courts are afforded broad discretion to utilize the many options

available to it to handle complex procedural matters. And they do this all the time with

situations no less complex than what we have here. I am convinced that district courts

possess the necessary tools to address any complexities arising from the state’s decision to

have more than one representative defending the constitutionality of its laws. 5

For all of these reasons, I would not extend Stuart’s heightened burden of a strong

showing of inadequacy to the situation presented here.

But if the Leaders need not satisfy the heightened standard of a strong showing,

what is the proper standard? To answer that question, I return to Westinghouse. There, we

indicated the standard for establishing inadequacy generally was the minimal burden set

forth by the Supreme Court in Trbovich. Westinghouse, 542 F.2d at 216. As already noted,

we then held that if the proposed intervenor seeks the same ultimate relief as an existing

party, the proposed intervenor must show either adversity of interest, collusion or

malfeasance. Id. But while our Westinghouse decision concludes that a proposed intervenor

seeking the same ultimate relief as an existing party must show one of those three factors,

it does not hold or even suggest any change from the minimal burden of establishing those

5
Consistent with my view, after the panel granted the Leaders’ motion to intervene
in the appeal, North Carolina’s two representatives divided oral argument time and
allocated the various positions in a way that created no undue burden on us.

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factors. Thus, in my view a remand is needed so that the district court can evaluate whether

the Leaders have established adversity of interest, collusion or malfeasance using the

“minimal” burden standard of Trbovich. Trbovich, 404 U.S. at 538 n.10 (noting that the

requirement of Rule 24 is satisfied if the applicant shows that representation of his interest

may be inadequate and noting that the burden of making that showing is minimal);

Westinghouse, 542 F.2d at 216 (“[A]ppellant’s burden of showing an inadequacy of

representation is minimal.”).

Having described the proper standard for evaluating adequacy, I turn to the pertinent

factors the district court should consider in applying this standard. Using the standard

outlined above, the district court should consider the evidence presented by the parties, as

well as N.C. Gen. Stat. § 1-72.2.

The district court did not consider §1-72.2 in its adequacy analysis. But in enacting

that statute, North Carolina has expressed its desire for the Leaders to represent it in

litigation like the case before us. Implicit in that expression is the state’s belief that, without

the involvement of the Leaders, it will not be adequately represented. North Carolina, in

enacting the statute, made the predictive judgment that there will be cases where the

Executive Branch will not adequately represent its interests. And without stating one way

or the other as to whether the Leaders should prevail, the public comments of the Governor

and the Attorney General, and the other information they allege, are sufficient to require

the statute to be considered. To be clear, this statute should not and does not automatically

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satisfy the Rule 24(a) intervention requirements. But it does bear on the adequacy analysis

and, thus, must be considered.

Last, the district court also denied the Leaders’ alternative request for permissive

intervention. But it erred in doing so without even considering the North Carolina statute

requesting that the General Assembly be permitted to intervene.

Permissive intervention contemplates intervention upon timely application “when

an applicant’s claim or defense and the main action have a question of law or fact in

common.” See Newport News Shipbuilding & Drydock Co., 646 F.2d at 118 n.1. “If

intervention of right is not warranted, a court may still allow an applicant to intervene

permissively under Rule 24(b), although in that case the court must consider ‘whether the

intervention will unduly delay or prejudice the adjudication of the original parties’ rights.’”

Stuart, 706 F.3d at 349 (quoting Fed. R. Civ. P. 24(b)(3)).

Of note, the district court expressed concern with the potential for delays, which

could result from adding the Leaders as parties, and with the additional burdens on the

court and potential prejudice to the NAACP. And our appellate review of those concerns

is deferential because “Rule 24’s requirements are based on dynamics that develop in the

trial court . . . .” Id. at 350. The trial court, in its broad discretion, is thus well positioned to

evaluate those requirements. But “[w]hile the efficient administration of justice is always

an important consideration, fundamental fairness to every litigant is an even greater

concern.” Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 974 F.2d 450, 470 (4th Cir.

1992). And “liberal intervention is desirable to dispose of as much of a controversy

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‘involving as many apparently concerned persons as is compatible with efficiency and due

process.’” Feller, 802 F.2d at 729 (quoting Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir.

1967)).

In denying permissive intervention, the district court failed to even consider N.C.

Gen. Stat. § 1-72.2. Given the import of that statute as discussed above, it should have done

so in deciding how to exercise its discretion. Rule 24(b)(3) does not impose a limitation on

what may be considered. Again, without suggesting an outcome or the weight the statute

or other factors should be afforded, I would remand the case for consideration of the

permissive intervention request.

IV.

For the above-stated reasons, I respectfully dissent.

NC NAACP State Conference v. Philip Berger

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