tv Justices Hear North Carolina GOP Effort to Defend Voter ID Law CSPAN April 29, 2022 10:59am-12:14pm EDT
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of 2022 to issue a ruling. [interpreter] north carolina naacp. a case about north carolina's voter i.d. law. >> well, your argument next in case 21 to 48, burger against north carolina state conference of the naacp. mr. thompson, mr. chief duchesses north carolina law designates the state as necessary parties, the petitioners as agents of the state and is necessary, potters and all actions and state actors. and state court and the petition and necessary parties and this lawsuit however was filed in federal court. and when the petitioners sought to intervene, they were denied and a strong presumption was applied against their intervention.
this outcome should be reversed for two reasons. first, under turbo, village we are entitled to intervene. the state respondents have candidly, and forthrightly acknowledged that they have a primary objective and receiving clear guidance on what's law if any, will need to be enforced and because that administrative responsibility and interest may not always dictate precisely the same approach to litigation, as our interest in defending the law every step of the way. we are entitled to intervene under turbo of its. second, this case presents foundational issues of federalism, the score recently and cameron held their deep constitutional, considerations and placated won a federal court is called the pass upon the constitutionality of the state law. and thus, federal court must account for a state, designating multiple officials to defend its sovereign interest. there is no basis in this case
for a federal court to second guess a states decision that it needs a representative exclusively focused, on vindicating state law. i welcome the courts questions. >> you saw there is no basis in this case. is there a situation where you would think it was appropriate for the federal district court to deny intervention where the state law provided specifically, that particular state officers, we afforded that right? >> well your honor, we would have to go through them all these that factors of number one, donaldson. we need to make sure to significantly productive interest that was identified and number two, we need to look at hollingsworth to make sure there was a correct assignment of that agent and creation of that agency relationship. and then under term of itch, they need to be an assessment as to whether there was somebody else already in the case, that had that identical interest. did not have another interest that was competing at tugging
at the interest that they were advocating. >> well, we often see in these cases here, sort of the political disagreement. between the two reported representatives on the state. they're a situation where that is the plane, for the necessity for intervention. you see a situation where that would be second guessed by the federal court? >> well i can see your honor, or that could be relevant here and we don't need to point to governor cooper's involvement in the case to when the intervention motion. we would point out, that governor cooper has been an implacable foe of this law. that's not to criticize and reasonable people can disagree about contentious issues of public policies. he is said edgy 8:44 to the four circuit court of the appeals and this very case, quote this unconstitutional law should never go into effect. cuomo's quote and he is also claimed for himself the
authority to fire each and every member of the board of state elections. he would not be an adequate representative. and now they say my friends on the other side say well we have for calls removal protection and we can't be fired by governor cooper. we don't think they are right about that but even if they were than that would just mean that there are unaccountable, unelected officials in charge of this paramount interest. >> counsel, two things. one is what do you do with -- a north carolina supreme court case that says the state legislature cannot represent the state? and i thought that that was the basis of the claim that the law was unconstitutional. not this representative law was unconstitutional? and, to a still don't understand what the conflict here is. the attorney general has said that and it's not the governor
that the attorney general is representing the state, board. both the state board and the governor, and the attorney general have taken the position that is a, constitutional. the same position that you are taking, so where is the conflict? other than litigation shattered xi issues? where is the conflict? identify it for me. >> okay, i will take those in order if i may. first with respect to wallace versus bone, that plays upon my friend separation of powers argument. there's only two judges on the fourth circuit court of appeals to address that. judge -- richardson and now, 102, we can see them giving short shrift and with good reason because wallace versus bone was a case in which there was a clear executive power and tried to be kept by the legislature issuing permits. denying the permits, the other case is the side to. the legislation is trying to span excuse me, money and
martin versus thornburg. the north carolina supreme court, clearly said there is a distinction between defending a law and executing a law. and the separation of powers argument proved too much because if it were right, and even if the attorney general were not the funding the law, we still wouldn't be allowed in. so that is what i would say. >> no, that's not what their point is. i think it's the attorney general wasn't the funding the law, there would be another case. that is with the court below said, it would be a different case if the attorney general refused to defend the law. but the logic your honor of their position, is that just isn't inherit executive power? >> but the problem with your position is that if north carolina has sent every member of the legislator, has a right and must be made a party to defend the state or to defend
the interest of the state, and then a federal court should be bound by 50, 100 legislators coming in and parts in the litigation. isn't that your point? >> no your honor that is not our point is that the first legislator if north carolina lost that any of the hundred and 70 members, of the general assembly can come in and be an attic representative and focus exclusively on defending state law. the first person to show up would be in our view, we are going back to the text of rule 24 would be the adequate representative >> tell me one interest? the interest of the interest of opposing law and the finding here was and the attorney generally has a similar interest. it is taking the same position. so why is the attorney general, if adequate to represent the same interest the legislators
have in protecting the constitutionality of the law. >> rule 24 focuses on parties are not on warriors. the attorney general on role here is not a critical. what is critical here is at the parties are the members of the state board of elections. and they have announced, a joint appendix page 203, that they have a primary objective of receiving clear guidance on what law if any when need to be in force in that scene many state of responsibility. the court asked me, where is the conflict. and we can see the conflict quite clearly at j. a, 366, footnote eight. they're in the run up to the march 2020 primary, there was a flagrant violation of the purcell principle. the middle district of north carolina, to hear their rendition ring, voting is going on it and the rules. that is not, right there was a small window of time before voting. the bottom line, there was a flagrant violation of the
principle. with the rules being changed, they have admitted that they did not seek a stay because of their administrative responsibilities. their concern about administrative convenience and ensuring that the election went smoothly. and so that is an instance in which these two interest. >> shouldn't the state the same thing happened and you did not make a motion either -- >> to reasons your honor and a factually shun and a regional and they actually did not, because their premier lay in junction and had been issues on the federal district court on december 31, 2019. the adverse state course ruling was a couple of months later, in february of 2020. and if we had run into state court and tried to seek a stay of that second injection, it would've been totally futile and pure victory because we were still enjoying, by the middle district. >> mr., it was your trial
strategy. >> no, it would've been no purpose to doing it because they had already decided to allow the prematurely injunction to stay in place. and addition, there is a legal difference to which is there is a dispute as to whether the purcell principle applies to state court judges. there is no dispute that it applies to federal court. >> mr. thompson, can i take you back to something that you said the justice -- she said what if state law gave every legislator a right to intervene or status as a necessary party. what have you. you said no, that would go too far it just has to be one. is that correct? >> yes your honor. >> why is that? supposed or something in between, suppose that there was a law passed in north carolina, it says a while you know, the senate might flip parties every day. we needed both the head of the senate and the head of the house. we are not supposed that somebody is running the statute and says actually, we also need the relevant heads of the
committees there. we need the head of the relevant house committee and the head of the relevant senate committee. i mean you get the idea, it's like why is it just one? if we are deferring to state understandings of their own interest, and the status actually, we need five people here. why would we not say, on your theory, well then we have to five people here? >> i think it's important to understand the role of state law and federal law in all of this. and here, we are dealing with interest that are grounded in federal law. they flow from constitutional considerations, identified in cameron. and they are reflected in the federal rules of procedure. federal rule 5.1, reflects that paramount interest in defending a state law, federal rule of procedure 24 b to reflect the interest and the administering a law. those are the two interest that we have here, they are not created by state law. and so any hypothetical about
well, if the state tries to create other interest, it's not implicated by this case. these are federal law interest, the same way interprovincial it, was a federal law interest -- >> so, the only real you are advocating for is a rule that says, one legislator has to be at the table in the suit? >> one adequate representative and if it's an interest that is significantly protectable, under donaldson and certainly an interest that is recognized and the federal rules of civil procedure, we would summit is significantly protectable. then we should be in touch. >> is there a difficulty? go ahead. it is or difficulty for you i mean, if you had come in the second time and said the same thing as the first time. it is basically saying you know, and asked to be that there is a legislator here in the suit to represent the specifically register sleight of interest in the fence of the law.
because these executive branch people, they have to worry about execution of the law. we just want a person who all of they are worried about is the defense of the law. it would seem to me that the way you would do that is to say, we have a special interest as a legislator. not as the state written large. but you are not making i mean, and your second motion, you did not do that. you didn't say that we have a special interest as a legislator. you said that our interest is the interest of the state written large. but how can that be? doesn't the executive branch represent the state at large? >> not under north carolina your honor. the way the statutes work, 120 dash 32.6 be says that we are deemed to be the state to the same extent as one that 72.2. and that statute says that we are the legislature. and so we've been designated quite clearly as agent of the state. we have been designated.
>> but not in replacement of the attorney general. it would be different if you said no, you know we are tired of the attorney general. the legislators now represent the state. but you kept to the attorney general, go ahead and then your first intervention motion, he said basically we have a separate interest. it's the interest of the legislator. and that makes a fair amount of sense, it's like okay that's a different interest. but now, you are not saying that. you are claiming the same interest that the attorney general has under north carolina law. >> well under, no it is not the same interest. they have an administrative interest that they have made clear and joined appendix 203 is the primary objective. we have a separate interest and as i've explained, they talk at one another. we have seen that in this very litigation. in addition with hill came down, between our first and our second motion to intervene. that said that a state must be able to designate its own agents.
that is what 1:20 dashboard a 2.6 p does. >> can i ask you about justin kagan's questions about how many legislators would have to be president? i just want to be sure where we're 24 granting his language? so i take your point that you have a different interest in the board of elections because they are interested in executing elections. defending the constitutionality of the law. there is a top. would it be fair to say that your position is that when the interests are different as they are here, maybe the term of itch case cast some light on this question. that it would be rare to find the existing parties of adequate representatives because somebody with different and interest that our intentions can never adequately represent the intervenors interest? well, the test is under -- our those interest such that they may not always dictate precisely the same approach to litigation? in other, words -- teaches that it is a minimal burden. here we have amply satisfied.
>> i understand. that i guess what i'm saying is if, i'm granting, you assuming that you're right, that these interests are not perfectly aligned between the board of elections and you. that it would be very rare to find that your interests could be adequately represented. it's not really much of a question. when the interests are different, the question of adequate representation, how could you represent that interest in the rule of 24 a? if the interest is a little bit different potentially? >> yes your honor. that's exactly right. that's the teaching of -- nobody was suggesting interpret itch that the secretary of labor was not doing a good job, or that his interest wasn't partly aligned. he was the petitioners interest. , lawyer rather. he had the exclusive responsibility, the secretary of labor did, for challenging
the election. >> let me take you to justice kagan's election a question. about -- maybe state law might even give them that right. then would your position be that well, all of those interests are the same. all of those interests are aligned. but when you have would-be intervenors who have interest perfectly aligned, they all have the interest that you have here, saying defending the constitutionality of the law, then is there adequate representation? >> if the interests are entirely aligned, we cannot invoke -- as a basis to intervene. we can point to the fact that the representation you representation is not and not it had a, quick that we can point to the fact that we have a separate and coequal branch of the government. >> but in justin kagan's hypothetical looked hypothetical, it was all from the same branch of the
government. i'm just trying to ground your answer, so numbers one can get in, but number two through ten cannot. -- you're assuming there were these other factors like they are doing a bad job? >> so the first step under the analysis, under donaldson, is to identify the interest. and the second step is to identify whether the entity has been assigned as an agent of the state. the third step is if there are different interests, only 30 different interests, you get the -- type of analysis. if the interests are identical, there is a adequacy of representation on that metric. >> but are we to defer to the states understanding about the interest to us? suppose the state says, we think, members of the senate have a different interest than members of the house, because they might be led by different parties. or suppose that they said members of a particular
committee have a different interest than other members? there are a variety of things that states could do to define their own interests that are not just legislative interests? would we defer to the states on that definition? those most boom or particular definitions? of those interests? so we can come up with five interests or ten interests, all of which might be expressed by various kinds of legislators? >> states can create interest. we can see that in the text of rule 24, because the talks about property, talks about transactions, which includes contracts. both of those are the traditional province of state law. any time in interest has created or purported to be created, that a federal court has to assess whether under donaldson, it is significantly protectable. but none of that is relevant here. these are federal interest. these are interests that are created by federal law and that are recognized --
>> one about the answer to her question though? justice kagan? i don't think you are a answering justin casings question? >> i think it would be up to a federal court to decide whether, or under donaldson, that's a significantly protectable interest. it would be a totally different case than this one. there is nothing in the federal rules of civil procedure that recognizes the interests and having a member of the committee. we are saying there are two interests -- >> you would you defer to the state law on that? or defer some way to the state on that? what would you do? >> states can create the interest. when we are dealing with the paramount interest, that that is recognized in the federal rules of civil procedure, that should be -- and what states think about it in this case is not relevant. the court need not address that separate consideration because these are grounded in federal law, and recognized by the federal roots of civil procedure. casper rainey and walker teach
that the federal law should try to interpret the federal rules of civil procedure to be consistent -- >> northward. is it is under b, permissive intervention. what we are talking about, which is intervention of rights. focusing on that for a second, what is these you want this court to hold? we are talking about a particular phrase. unless existing parties adequately represent that interest. as you know, most of the federal courts have interpreted that is starting with the presumption, somebody is there with the same objective, it is adequate. and that could be defeated. that's what happened here. you lost on that. very well. you want us to say, when we interpret court, when we interpret those words, unless
existing parties actually represent, do you want this to say the presumption week though it is, of every circuit, does not apply? or do you want to say, it doesn't apply just to the states? or do you want to say, no, every private party often has problems and they have a lot of people in the case too. so how do we say just the states? or do you want to say, the rules are the same, but they didn't apply that presumption correctly in this case, because we have a bigger interest in intervening than they thought? i mention all those difficulties, because i have yet another one. the last one is. since what you talked about isn't b, of intervention, why
isn't this a case for permissive intervention? suppose we copied your words. how important it is to get the legislature in. here how desperately the state wants it. let's copy your words. and say that is not enough to change the interpretation of a, intervention of rights, but we think the court could reconsider be, permissive intervention, noticing what is there in the two and dot dot dot, we quote you again. i've given you a whole lot of problems that i see in this case. and i've also suggested, but it is only a succession. and i'm interested in your reaction. honor.thank you your honor. the interest that we are trying to indicate is not referenced in vindicates -- is the paramount interest agents but in-camera, in vindicating state law, and that
is recognized in 5.1 of the federal rules of civil procedure. notice has to be given to a state whenever, this is an interest that is under permissive intervention. the court also reference the fact that we have the same ultimate object objective. that can't be enough every time an intervenor comes in under rule 24, you have to think one side or the other, and there is nothing in the text to suggest that a perception should apply in that instance since -- there was no presumption. >> your point, to treat states differently. -- >> the court could say treat states differently, but in -- it was a private party, there was a presumption that was applied, and it is simply not true that all circuits apply the presumption. >> is that what you want to say? -- the >> the court doesn't have to reach. that >> we know that.
but i'm trying to get out which you think would be the best. way unfortunately, unlike, you i might have the job of approving or writing the case. so i'm trying to make my job easier. >> the rule, the narrowest grounds to rule in our favor, would be to say that this is a paramount interest of the state and it is titled under basic principles of federalism to have that federal interest vindicated by a representative who's exclusively focused on that. and it is not required, -- to forego but they have in state court, which is a champion focused exclusively on winning the suit. >> justice breyer, anything further? >> you don't see much in this way of permissive intervention? >> no your honor. >> am i assuming by your argument that the existence of the north carolina here is the
relevant? you're basically saying, whether there is a law or not, we have to mandatorily, let everything legislative member commit. i do not know what to do with that claim, given how we have ruled in a variety of different cases that a legislature cannot defend the constitutionality of a law, because that is up to the attorney general of each state, or the law who designate to's going to defend. >> state laws not irrelevant your honor. it's a three part. test one is a test under donaldson whether there is a significantly protectable interest. >> that every legislator has that. so go ahead. >> step two, this is where silicate's. step two is on the assignment. that is an exclusively a function of state law, as to whether the state has an assigned responsibility, to the
intervenors -- >> for which are basically saying is every state law that does, that everybody may designate, every cabinetmaker, etc, as a matter of law under 24 a, they have to be permitted to commit. and you are saying, no no no, only if they're adequate to protect that interest. >> i'm saying under step three the first one gets to commit, not the second one. >> what happens in a case like this, but representatives have overlapping interests? the attorney general is not saying they won't defend the constitutionality of this law. the state word has not simply -- they have the same interest or overlapping interest to your's. where do we go with that? >> that is -- your honor. >> no -- was saying that the union member and the utah department of labour had conflicting
interests. here they have identical interests. >> if we think about it as a venn diagram. in -- the interest of the petitioner was a subset totally included with the interest of the secretary of labor. the secretary of labor had to. interest number, one he was the petitioners lawyer. that was a perfect identity of interest. but he had a second interest. he had an interest in the public interest. and it was the fact that he had. 21 was identical, and -- >> but the public interest can overcome the individual interests there. >> they said, because he had both, he was not an adequate representative. that is our point here. it's a little bit stronger here. even as to the interest in defending the law, it's not perfectly the same because there is a temporal difference. they are fighting for ultimate vindication. we are fighting for the law to be in place every step of the way, including the march 2020 primary.
>> justice kagan? >> mr. -- i just want to clarify a few points. this goes back to justice barrett's questions. if i understood your response to, her you agreed with her, that basically your case here depends on the argument that you have made that legislatures to have different interests from the executive branch. there is a kind of top in your words between your purely legislative interests and their interests which also has to take into account their issues of execution. is that correct? >> -- we might be saying different things, so am i may clarify. when i'm saying is that there are two different interest defending the law -- but they're two separate interest. one of them is defending the law, it's not inherently a legislative. and one is administering the law. but you you are saying the are saying that the reason that you should be reason you should be able to intervene able to is
because intervene you have been you have defending the law interest defending the law pure, whereas they pure where it's they don't. don't. they haven't in with a mix of other things. >> yeah, surrounded that is correct. >> but you are saying that that legislative interests, defending the law pure, that we should defer to you for one legislative, seat at the table if you will. no more. is that correct? >> it's not a legislative interests, it's an interest in defending the the law but yes, the first person. >> sorry i'm not precise. >> yes, the point is that once there is an interest that is valid and significantly protectable, the state is entitled to a champion as to that. >> a champion, one champion. and you are saying that it really doesn't matter that the state law in question does not define the interest in that way. in other words the state line questions amply makes the legislate, legislative necessary parties. but doesn't make this
distinction about the particular interest in defending the law versus other state interest. it just as there's a legislative interest have to be necessary parties. >> i think it does actually because the trigger that we only come into a case, where there is a challenge in the constitutionality and the validity of the law. that is what's tethers our assignment as the agent to that interest. is the trigger. if there is a challenge the administration of a law, we are not necessary parties then. >> and when you say necessary parties, do you have to be in those cases or is it a require of intervention motion on your part? >> well and state law, we are supposed to be named but if we are, not it's automatic intervention. when we move. >> thank you. >> justice barrett? >> just a pick up on the very end of your -- was it wrong that you were enjoying admiral 19 as a
necessary party in this suit, given what you are saying about this practically impairing or impeding or interest? >> i would be our position or honor, we have an interest and it's being impaired. that we should have been named. >> thank you counsel. miss theodore? >> thank you mr. chief justice, may it please the court. formula 20 for its inception to today, a single principle has guided interpretation of the adequacy problem. when i proposed intervenors interest is identical to one that's already represented in the case, we presume that the existing representative is adequate. and that common sense presumption holds particular force when the existing representative is a state official, charged ethically and legally with defending state interest. their presumption is further supported by the strong federal interest, and requiring states to speak with a single voice at
a time in federal litigation, from the advantage point of federal law. there is one state, the state as a unified entity is what matters for federalism purposes. and it's the state that has the sovereign interest in defending state law. where one state representative decides to no longer represent that interest, like in the camera situation, then a properly appointed state representative can come into vindicate the interest that is no longer being represented. that is the same why federal law requires the united states to notify congress, to enable intervention when it stops defending a statute. we are in authorize state representative is actively defending the law, rule 24 schools have been sharing coherent, presentation and simplified litigation should prevail. and this case, the poster child for what federal law puts a thumb on the scale against intervention. when a state agent is already there defending. unlike in -- there is no need for
intervention here. petitioners explicitly seek to and for stability and defensive state law. the exact interest, the attorney general is charged by statute with representing and is telling this court he is representing. and he is not only representing that interest but unfortunately, for my clients, he is winning. and then on the other side of the ledger, allowing the state to speak with multiple voices at once, it would complicate litigation and draw federal courts in the state law disputes. such as the substantial ones here about what's states and the state constitution means. there is substantial cost without corresponding benefits to accepting what petitioners propose. i welcome the courts questions. >> counselor, you said right at the outset that there is a federal interest that people on each side of the case speak with a single voice. where did that come from? i mean just about every case that we hear that we have two parties representing one side
of the case, often with slightly different interest. and significant litigation, the federal courts and you have the same thing. if the sovereign state that is a party in the case has a law, that says these people have to represent us. i don't know if any federal interest that outweighs that. >> i think the federal interest is having this state, cal of federal court what its position really is. so, petitioners to argument here is that you know, and forcing state law, enforcing the voter i.d. law defending the voter i.d. law, might conflict with an interest in election administration. we don't think that's a different interest but if you think it is and if we think there are different perspectives here, there's a really strong federal interest in not allowing the state to say, we want our agents to duke it out in federal court. definitely, the possibility that the from state agents defending state law might have different perspectives and
balance interest. it's advice not a virtue of their proposal, it requires federal courts to referee instead of just telling the state, look pick somebody to tell us how the state law balance comes out. you can get rid of the attorney general if you want to, all cases are all election cases are, our case but you should pick. not is not a problem in other cases where this court has had to state representatives like brnovich. where they disagree about a question ultimately of whether the state statute violates federal law. that's a question that's in the federal courts wheel house. but here, how to balance a state interest if it conflicts, it's something that the state should really just becoming into federal court and telling federal court with the position is. >> well that's a pretty difficult, eyebrow raising thing for a federal court to do. when you have a political controversy, with two different entities, each one having a right to intervene under state
law, as far as the state's concern. you are seeing the federal court, before you even get to this dispute which obviously, under those scenarios is intensely political. i want to say you picked a winner but you pick who is the real representative of the state. i don't see federal court doing that as a general manner or, if we do ask them to do, that that's putting them in an intensely political position. when they are used to and lots and lots of cases, having people, more than one interest represented on one side of the. >> we are not telling the federal court to pick. we are saying, when there is a duly authorize representative who is already there, who is already actively defending the state, we will stick with that person unless it's a really good reason that we think they are not. they are not doing the job, again the state can kick some out. this is consistent with federal
statutory law, on intervention and so section 20 403 b says, we will allow intervention of the state if there's not already somebody in their defending the state law. >> with the federal side, it's very different. we have a unitary excessive. the one person should speak for the united states. states are not that that same perspective. >> well, section 20 43 b is specifically about intervention by states. and what it says is that as they can intervene as of right if there is not already, a state agency or state officer who is a defendant. and then federal law really strongly supports our view that there are presumption of adequacy when you already have one state officer in there as the defendant defending the state law. and so i don't think we are asking the federal court to pick, we are saying you're stuck with the one who is there. and by the way, the person who's there is going to be the one who is the only permissible defendant under federal law. >> so if the legislator had and
-- they would be the one there. >> if -- we shoo the only difference that we could sue under ex parte, which were not of course include the legislator. the legislatures. so i don't think as i said, i don't think the federal court is picking. and again, the state of north carolina can kick the attorney general out at anytime it wants if it really thinks he is not adequate to defend the states interest and a voter i.d. law. and it hasn't done that here. and as we said, i think there's a really strong federal interest lenders telling the, state you choose to represent you. but we want to know your position is in federal court. >> as an our position, even if it wasn't the attorney general defending the board of elections that i would still, it would still be unsettled intervention? let's, say they hired private counsel? i understand their position to be the same i think, it doesn't depend on the fact that the attorney general is representing them. but the fact that the interest are not aligned. >> well, i think in north
carolina law clearly says that the attorney general is the authorize representative of the state board of elections. and north carolina law says that the attorney general represents the state in any case, and watch the states -- >> didn't get dismissed from the lawsuit? >> the governor got dismissed from the. so north carolina clearly authorizes the attorney general to be here, that hasn't been repealed. >> what if a private firms representing the state board of elections? it just aside, no attorney general. he said the steak and get the attorney general out at any time, let's say that's what happens. what then? >> does anything change? >> well i think i would assume in your hypothetical that there is a state law that says, the private lawyers represent the state boards to defend the constitutionality of state law? >> well you said, they can get the attorney general out at any time. i'm not saying as a matter of general principle, that the attorney general is not the one who represents the state accord. obviously, there's been a lot
of back and forth and legislation has passed laws related to this specifically geisha. i am saying, would that matter at all? let's say they say, we think the attorney general is doing a bad job, we want private counsel. >> okay, they can do that absolutely. north carolina law could do that and, then in that case, again i don't think the legislature could come in and, say we want a second council representing the state. they would just pick, one of the one that state law says represents the state. >> but it would change your view about whether the legislature could come into the suit? or it could come in and it wouldn't change? >> it wouldn't but if state law says that the state legislators decide who the council is for the state board of elections that any particular case, that would be fine from the perspective of federal law. they could certainly do that. and so, again the state is in total control here. >> what do you do about this? i mean on page 5:39, i take
what the court said. it's a union member, he goes to the secretary of labor, and says hey they had an unfair election in the mineworkers. the secretary brings a lawsuit, is he supposed to. the union member wants to intervene. the interest of the union member and the secretary says the court, who is our tentacle but, even if the secretary is performing his duties, as well as can be expected, the union member may have a valid complaint about the performance of his lawyer. such a complaint, filed by the member who initiated the entire enforcement proceed. inc. should be regarded as sufficient, to warrant relief in the form of intervention under 20 482. no mention of any presumption? against intervening? sounds like the easiest thing in the world to intervene. this man, the union just wanted to represent more evidence. that was it. so, the records not following that or what is the situation? and what do you think?
>> trump events, chair privilege is a totally different situation. it just told that you know a government official cannot adequately represent at the same time. both the public interest and a private union member, individual interest. and it makes total sense that showing inadequacy is a minimal burden, where you have a government defendant, and then you have a private person who wants to come in. we completely agree with that. but here, here the issue is that we have a government funding on one side, representing the states interest and defending state law. and petitioners want to come in and say they represent exactly that same interest. i'm with respect to their claim that they aren't focused on election administration, that it's really hard to square with their view and the way they presented this place and this position they disclaim, any institutional. >> that is the interest. if a private person can very easily go in and help with
federal government, we are in a lawsuit. why couldn't the state say that we want this person to come in. that would seem stronger and not weaker. because the private person is one of 400,000 union members. but the state legislature, even in election cases has a pretty strong interest. >> well, the state legislature, petitioners here have had said in this representation that they don't represent the legislature, they only represent the speaker change, which makes it really difficult to say they have a different perspective. and they don't care about election administration when they have said they want on behalf of the state as a whole. i take that point. i guess i think that there is the kind of formal-ness about it. they are have a different interest. because they have this interest pure in defending the law, and there than by any other
consideration. i think your point. there is some -- with consistent representations that not represent the legislature but represent the whole state. which you might think that is the kind of interest that is even taking their own view, levant by these executive interest as well. they want to have it both ways. but why shouldn't we think that the more important of the two statements that they're making to us is that they have this pure interest in defending the law which nobody else in the courtroom hasse. whether we it representing the state, or representing the legislature, is less important than that substantive difference in the interest that they have. >> well you have the trinity general staying that's primary interest is also in defending the law. you have to be deciding between two state actors who have a dispute about state law.
and what each is doing. you have to say the eternity general is inadequate and defending the law. -- hypotheticals about two legislators coming in a really devastating to their position. the sacred easily just say, we think the head of the budget committee has a different perspective on defending stay lobbed on the head of the election committee, the head of the election committee might not prioritize budget issue so therefore those folks should come in also. i think as the intuition of mr. thompson's suggests, rule 24 wherever real problem with that. i do also want to identify some of the real pacific, practical problems with their position. you have two officers representing the state. how do you get a binding admission when two agents purport to represent the state? one of asia number one admit
something, and major number two said he lacked knowledge and therefore it is denied. -- suppose you added damages suit -- a title seven suit were a law, a state law violates title seven. -- let's suppose agent number one wants to push on a different -- than they do number. to which one vines estate? or evasion one says we won the jury trial, an ancient to says we don't. there are significant problems with that position. >> what happens when intervention is denying on the ground that the would provide adequate representation? and the triangles forward and the legislature has its attorney sitting there in the courtroom, and they say, look at the eternally general has done. the attorney general has assign very very junior attorney t to sign this case.
-- another activities which we think are essential to the defense of the statute. can they move for intervention at that time? is that untimely? >> i think that is, no, i don't think it would be untimely, if they could say there are significant new developments that would allow us to overcome the presumption, i don't think it would be untimely. if there were new developments that suggests to the attorney general was somehow at the abdicating's responsibility -- >> not abdicating's responsibility, but doing the minimum required by the attorney general under the law. but not treating this as the most important thing. that merits the expenditure or whatever is necessary to provide the maximum defense of the law. the legislature can appropriate as much money as it once in defense of the law. make that the number one
priority. but if at some point, the attorney general says, this is costing too much. we need to settle. suppose there is an adverse decision, and the attorney general says well, we did our best, but we are not going to take it to appeal. would intervention be allowed at that point? >> as for the appeal, i think the courts decision in-camera said it would be their discretion not to allow their appeal. >> weest make sense to a lot of the, appeal or loud intervention at the appellate level, after the attorney general has made what the legislature regards as inadequate defense of the statute, or inadequate record, doesn't that just make things more complicated? >> no. i don't think. so i think the purpose of the adequacy clause and rule 24 -- if the state thinks the general
is not doing in good enough job, it has a very simple way of dealing with that. all they have to do is replace him. nothing about our position prevents. that our position simply prevents them from having to people at the same time. >> what's the procedure for replacing him? >> i think petitioners would say that state law already allows them to do it and they just haven't done. at state law could just simply say, at the discretion of the general assemblies leaders, they can replace the attorney general with private counsel on behalf of the board. there might be a state law problem with that, but they would not be a federal law problem with that. that is the answer to any concern. >> they have the courage or state law now? >> i think there is a real dispute went about whether they do and they haven't invoked it in this court. >> but the position is they have that power and they wouldn't even use it? -- >> i think that might be their
position, but certainly as far as federalist concern, the state could give them that power. >> there is some unreality about the arguments here. you say the attorney general representing the board of elections is gonna provide perfectly adequate representation. the legislature obviously does not think that. -- the attorney general is gonna provide perfectly adequate -- they don't understand what is in their own best interest. right? >> well, the petitioners don't think so. but the state doesn't think that. that's why the state has a law that designates the attorney general asked the person who defends date law. i think it's important to distinguish between what petitioners say it with the state says. and state law clearly or authorizes the attorney general to defend states interests. >> thank you. i just have a couple of really quick questions. this may be along the same
lines as justice -- but it doesn't, it does seem a little unfair to me that you are asking us to pick your opponents. either i'd rather have only one person arguing against me in court, rather than to. but i think that's a little bit of a conflict there. what are you afraid of? i'm sure you could handle the two of them is easily as one. >> we haven't picked our opponents. we sued the people in federal law ex parte young -- we did not make a decision. there won't rule 24 is about a simplifying litigation. it says we do not out another defendant, we do not add another plaintive unless there is another really good reason. >> why do we keep saying, we, we we? it's a court interest. the question is whether the court should be letting the state have the two
representatives that under state law they say they should have. i don't mean the way this might sound, but i don't know why we are terribly interested and why your views on that are in the first place. you are gonna want to throw one of your opponents out. >> i think rule 24 is there to protect plaintiffs and defendants. it's there to simplify litigation. it's there to reduce costs and burden. -- i think we have an interest, and i think the court should probably have an interest to make it easier for governments to say we are gonna make it harder for people to challenge the government. i do think we have splay to this have an interest. >> i'll get back to this once more, because i did notice the foot known. fortunately or unfortunately, the footnote says, the requirement of the rule --
is satisfy if the applicant shows that representation of this interest, quote, maybe, and quote, inadequate and the burden of making that showing should be treated as minimal. that says maybe there is a presumption, not more himself but, minimal is the key word. so, what are you saying? i think we have to follow that. >> so, all of the federal courts of appeals have understood that trbovich rule when -- weather was a different interest, like in trbovich a, where the secretary was charged with -- we agree with e.
>> trbovich was a situation in which the private individual does not have a right to pick his opponents? >> that's right. >> so it was dealing with an innate conflict with a union member who cannot pick his own lawyer, is saddled with a lawyer -- yes >> that's not the case here. the case here is there is an overlapping interest. -- was whether the representation was adequate. the other side, justice alito asked a question. how does the legislature protect itself in the event that the attorney general is not vigorously defending the law by giving it could council or expert witnesses?
isn't that what the district court looked at? how vigorously was the state defending this law? didn't it say that everything the legislature wanted to do, the state had done but in a different way? they proposed experts, but the legislature gave an expert that gave exactly the same information, correct? >> yes. i think the district court looked all these things in his determination. >> and if the states stop doing, that they could come back and asked to intervene, correct? >> absolutely. yes. >> anything further? >> thank you counsel. >> mr. chief justice suffolk
and please the court. petitioners cannot argue that they -- are not adequately release -- no daylight between the legal position in our. is there evidence is duplicative of our evidence. -- we are confident that we will ultimately prevail with final judgment -- as we have consistently said, we have no problem litigating alongside petitioners. but petitioners cannot require that mandatory -- they have the same interests of attorney general who remains in the state robustly defending the law. -- the petitioners cannot overcome it. moreover, there is a fundamental principle of state constitutional law and stake. petitioners -- to give them the right to represent the states interest and enforcing the law. that construction would violate the north carolina constitution. thus, whether or not the petitioners are permitted to
intervene in this case, we urge the court not to adopt their erroneous reading of state law, which would violate our states separation of powers. i welcome the courts questions. -- >> i don't believe so your honor. our state constitutional law issue arises out of -- and gets to the issue of whether or not the legislature, the petitioners can represent the state, not to whether they might have a distinctive legislative interest as they have claimed here. and just as justice -- said, -- says that the legislature cannot represent our governments interest in enforcement of law, or to save the flip side of that, in
defending the law. in the stand that petitioners claim to defend our state, or have the authority to represent the states interest in litigation. walls versus bones says that the crystal clear violation of our constitution. >> if the petitioners were here saying we have a distinct interest in defending the lob pure, which is different from what you do in the executive branch. that is their theory. and so we have a distinctive legislative interest, and we are asking for an intervention. would you be all right with that? we are not representing the states interest. we are representing specifically the legislative interests, which is not represented by the attorney general? would you be come on in under intervention of right? >> i think it would depend on the particular case your honor. we do not have an issue with them asserting legislative
interests in so far as this is that pose a constitutional problem. >> would you also agree that under the intervention rule that would be perfectly permissible. representing a different, interest they are asserting a different interest you can't adequately represent, and interests that is not iran. so as long as you -- all your objectives will fall away is that correct? because defining and interest can be valuable. as we have seen from petitioners briefs. you can frame what i can say is an interest in many different ways. and they use different litmus tests, to see if there are overlapping or if they are effectively the same. and do the parties have the same ultimate objective, or are there any claims, you know that people wish to assert. or an assisting party has declined to assert. so things like that. or the test that federal court
used to suss out if -- >> and what is the result of that test. again if they were saying specifically legislative interests, separate from any executive interests that you have. >> in this particular case, i'm really not sure that we have enough to approve that there is another interest because of my opening remarks, they haven't identified any daylight between their position and hours. or any claims they wish to assert. or any evidence they wish we are putting on. but we certainly concede that in certain cases that that might be different. and north carolina does seem to grant them a distinct legislative interest that would allow them to move from rule 24 to intervention in other cases. >> a, or be. i think of it as permissive -- . >> your honor this they certainly are permitted to move for permissive intervention, and that happens, and in this case we would urge the court in so far it inclined to let petitioners intervene. to permit them to intervene
through that route. but the state's position is that north carolina state law does recognize the legislative interest as well. and the question is just on a case by case basis, whether or not the attorney general who was already in the case, is in fact already representing that legislative interest as well as the broader interest. >> in that respect may i ask, you've succeeded in the fourth circuit, haven't you? in the preliminary injunction? >> it's your honor. >> on the ground that you are likely to succeed on the merits that sba 24 was constitutional? >> yes that's correct. >> so this argument with respect to administrative burdens -- >> no your honor. >> you're defending on the merits correct? >> correct around. >> so it's been placed on hold in waiting for this case -- >> it has been state and i would note that we moved at the point of this court circuit for permissive intervention on the
legislators we have. because we have an interest in seeing this case through to resolution. and having the chance to defend the law. to indicate our ability to enforce the law. but the district court, they denied that anne -- until the case is resolved by this court. >> how about the issue of your summary judgment motion on the merits? you made one on the merits as well correct? >> yes or no that's correct. >> has that been moved on? >> no it's not a remains pending. >> could this be a you know this case become moot because of the state board action? >> it could your honor yes. currently the law, is joined by the state trial court. the permanent injunction and we are currently appealing that legislation. and that is gone straight up to our north carolina supreme court. >> and that is scheduled for argument when? >> it is not yet scheduled for argument your honor, i assume it will be argued at some point this year. >> i read somewhere that it is likely the summer? >> i believe that is correct
your honor. but i did not believe that there is a firm date. >> so if you lose their, then this case becomes moot correct? >> yes that's a point we made in our brief your honor, because of the parallel nature of this allegation and this litigation, it's possible that it would become moot, but the parallel litigation is part of what drove our decision not to move to stay the preliminary injunction, that petitioners have race so frequently. the problem there of course was that the district court join law at the end of january 2019, and we had made clear that at the start of january 2020 we would need to move immediately to balance for the primaries in 2020, and we knew that there was this parallel court statement that might lead to an injection, once again causing us to change course. so we have acknowledged and stated candidly in our briefs, because of our obligations to enforce all of the states election laws that we recognize that it might put us in an impossible situation. were we to move to the state or have a stay at the federal
court case, -- and that is precisely what ended up happening in february 2020. so i wanted to clarify the record on that regarding the motion. >> hypothetically, intervention, which we're getting into is vast as a subject. and there to, and i don't know that much about it. i don't want to deny that i know some things. but i mean, maybe we've gone too far in this argument. but in that regard, i'm not an expert okay. but to, suppose i think it's terribly important in an election case that the legislature have a right to be there in the court. or be there in some form. maybe some permissive intervention, but i'm worried about saying under to the general that, as that there is this other parallel thing. and the election is coming. okay? so what do i do?
>> well, our position. >> aside from saying while we wait. but go ahead. >> yes our position is, that had they brought this case to the court, asking only for mandatory intervention on behalf of the state, which could rise to a constitutional problem, the only proper outcome for this court is to deny mandatory intervention. akin we are not opposed to the idea. >> second choice. >> but if they were asked for permissive intervention, that that would be an acceptable choice. and i think for many reasons, which i can list quickly. that would be preferable to intervention and the first would-be that it voids these complicated questions of state law about who gets to represent the state. whether in fact north carolina has deemed that the attorney general enact inadequate. which we vigorously disagree with. the second would be because rule 24 a, one already recognizes an automatic right for parties who are granted a mandatory intervention under federal law. and it has no parallel version or state law. or if congress or the advisory committee had intended to grant
state the ability, and they would've included it there but finally when the rules were revised in 1944, to add the provisions in 24 be. the permissive intervention section to allow certain state officials, to be there for permissive intervention. to consider moving state officials into 24 a two and allowing them the right to intervene automatically. and declined to do so. so for all of those reasons, if the court is concerned about legislators ability to protect their legislators interests, and their narrow interests, the proper course would be to get their permissive intervention and not mandatory intervention as a right. and i do quickly, in whatever time have left, i'd like to push back aggressively against the notion that north carolina would be free to simply abolish the attorney general, it may be true that that would be permissible under federal law but it would not be permissible under north carolina state law. the attorney general is a constitutional officer, who's
identified as a chief legal officer of the state of north carolina. and of course statutory law reinforces his obligations. but the state of north carolina could not simply delegate his responsibilities to somebody else. >> i'm sure your bosses are happy to hear that that is your position. >> yes i believe i would've been remiss should i have not mentioned that. i do want to touch on cameron as well because that was the one of the many interventions that this court has heard this term. and know that cameron is totally position with our position. and what the court was concerned about with that, is whether the state may find itself without a fair defense. no one there to defend its laws. we have course of course acknowledges knit against of that interest to the states. but here we have an attorney general, who has permitted to wrestling defending defending this law. who has prevailed in over turning an injunction on appeal. so there is no situation where the state is going to be left without somebody to defend them. cameron says of course, that a state is free to designate its own agents, and we accept that
proposition. but that does not mean that a, a state can force federal court with numerous actors, all -- set to speak. or a way that it floats it states constitution. we think that both of those counsel against against mandatory intervention here. >> justice breyer, anything different anything different anything to add? >> justice sotomayor? >> no thank you counsel. >> thank you. >> rebuttal? >> yes. >> mr. thompson. >> yes just a few quick points, they claim they are not trying to pick their opponent, but they are. because they filed in federal court. non state court. if they had filed in state court it would be their defendants. number two, they invoke the prospect of intramural -- but there are frequent instances and it happens all the time, like in 1983 litigation, that a plaintiff will name a variety, a multiplicity of state
defendants. and they haven't been able to appoint to a simple example of when the multiple state defendants in the 1983 suit, has somehow created -- in terms of administration of justice. and that's because of the presumption of good faith. and they acknowledged, page 55 page 55 of their brief, that they have no doubt that coming into this case, we would work cooperatively with them as we'd have done on many occasions before. they invoked the role of the attorney general, and rule 24 talks about the party's not lawyers. in the party here is a state board of election. which has the responsibility for administrating the elections. they say that they have prevailed in the fourth circuit, the march 2020 primary is held without this law in effect. the reason it wasn't in effect is because they have prioritized their administrative responsibilities over the merits. and then finally there was a discussion about maybe this case would be rendered moot by the state court, and there's