IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA UNITED STATES OF AMERICA, ) ) Plaintiff,

) ) v. ) ) THE STATE OF NORTH CAROLINA; THE ) NORTH CAROLINA STATE BOARD OF ) ELECTIONS; and KIM W. STRACH, in her official ) capacity as Executive Director of the North Carolina ) State Board of Elections, ) ) Defendants. )

1:13cv861 (TDS-JEP)

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR INTERVENTION BY CHRISTINA KELLEY GALLEGOS-MERRILL AND JUDICIAL WATCH, INC. Judicial Watch, Inc. (JW) hereby moves, on its own behalf and on behalf of Christina Kelley Gallegos-Merrill (Merrill; collectively, the JW Intervenors), for leave to intervene as defendants pursuant to Fed. R. Civ. P. 24. 1 The current defendants, by and through counsel, have communicated that they do not oppose this motion. NATURE OF THE MATTER BEFORE THE COURT Plaintiff the United States of America commenced this action pursuant to Sections 2 and 12(d) of the Voting Rights Act (VRA), 42 U.S.C. 1973 and 1973j(d), seeking to enjoin those provisions of North Carolina law contained in HB 589 that require photo identification (photo ID) for in-person voting; eliminate same-day registration during

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

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early voting; reduce the number of days (though not the number of hours) of early voting; and require provisional ballots to be cast in the proper precinct. The United States also requests that, pursuant to Section 3(c) of the VRA, for an unspecified and possibly indefinite time, the State of North Carolina be required to obtain preclearance for all changes affecting voting either from this Court or from the Attorney General of the United States. STATEMENT OF FACTS On July 25, 2013, HB 589 was passed by both houses of the North Carolina Legislature. The bill as passed contains 60 parts amending various provisions of North Carolinas election laws, as described above. That same day, Attorney General Eric Holder gave a speech to the National Urban League in Philadelphia concerning, among other things, the Supreme Courts recent decision in Shelby Co. v. Holder, 133 S. Ct. 2612 (2013). Referring to a lawsuit against Texas, he said, [t]his is the Departments first action to protect voting rights following the Shelby County decision, but it will not be our last. Fitton Decl., 21. This statement was widely seen as a reference to a potential lawsuit against North Carolina over its photo ID law. Id. A former Holder spokesman, Matt Miller, told the CourierTribune (Asheboro) the next day that [f]rom everything I've read, the writings on the wall that the North Carolina law is going to draw a DOJ challenge. Id., 22. On July 29, 2013, a group of political activists attended a meeting at the White House with Attorney General Holder, Labor Secretary (and former Assistant Attorney
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General for Civil Rights) Tom Perez, and President Obama. Those attending included representatives from the ACLU, the NAACP, and the Rev. Al Sharpton. Id., 23. Mr. Sharpton told an interviewer for MSNBC that, based on what he heard at that meeting, he expected action regarding North Carolina when this governor signs the bill. Id., 24. On August 12, 2013, HB 589 was signed into law. That same day, two lawsuits were filed in this Court challenging portions of HB 589. The complaint in N.C. State Cfc. of the NAACP v. McCrory, No.1:13-cv-658 alleged violations of the 14th and 15th Amendments and Section 2 of the VRA, and sought relief under Section 3(c). The complaint in League of Women Voters of N.C. v. State of N.C., No. 1:13-cv-660, alleged violations of the 14th Amendment and Section 2 of the VRA, and sought relief under Section 3(c). On September 30, 2013, the United States filed the complaint in this action, alleging violations of the 14th and 15th Amendments and Section 2 of the VRA and seeking relief under Section 3(c). On November 26, 2013, the United States moved to consolidate all three cases. The JW Intervenors Merrill is a registered voter and a resident of North Carolina. In 2012, she was a Republican candidate for County Commissioner of Buncombe County in voting District 2. Merrill Decl., 3. Warren Wilson College is a local school on the border of her election district. Warren Wilson was recently named the most liberal college in the United States in a poll conducted by Newsweek and College Prowler. Id., 4. Merrill
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alleges that, immediately after the 2012 election, she was leading by a hundred votes, but that she ultimately lost, by 13 votes, because students in one dormitory at Warren Wilson (or those claiming to be students, or claiming to reside in that dormitory) improperly registered and voted in her district. Merrill believes that a number of those registrations and votes were fraudulent. Id., 17-19. Merrill plans to run for Buncombe County Commissioner again in 2014 and has taken steps in furtherance of her candidacy. Id., 16. As explained herein, both as a North Carolina voter and as a candidate, Merrill has an interest in opposing the United States request that this Court reinstate same-day registration during the early voting period and enjoin its photo ID law. JW is a non-profit organization that seeks to promote integrity, transparency, and accountability in government and fidelity to the rule of law. Fitton Decl., 2. JW is a membership organization. A person becomes a member by making a financial contribution, in any amount. Members financial contributions are the most important source of income to JW and provide the means for financing the activities of the organization. As a direct benefit to its members, JW regularly files lawsuits and involves itself in litigation against government agencies and government officials in federal and state courts across the United States. Id., 3-4. JW has 7,260 members in North Carolina, many of whom are registered voters. In November of this year, 143 JW members specifically identified themselves as North Carolina registered voters and expressed personal support for this lawsuit. Id., 18. JW seeks to intervene on behalf of its members who are registered to vote in North Carolina.
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Consistent with its mission, JWs activities are focused in two directions that are relevant to this action. First, JW pursues its interest in open government by making document requests under the Freedom of Information Act (FOIA) and various state counterparts, and by litigating where its requests are denied or documents are withheld. Id., 5. Second, JW seeks to protect the rights and interests of its members who are registered voters by engaging in research and, if necessary, litigation to ensure the integrity of the nations voter rolls and the electoral process. Id., 8-10. As set forth in greater detail below, JW seeks to defend its interest in these activities by intervening. QUESTION PRESENTED Whether this Court should grant the motion of the JW Intervenors to intervene as defendants in this action. ARGUMENT I. The JW Intervenors are Entitled to Intervention As a Matter of Right. On timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movants ability to protect its interest, unless existing parties adequately represent that interest. Fed. R. Civ. P 24(a)(2). A movant must showfirst, an interest sufficient to merit intervention; second, that without intervention, its interest may be impaired; and third, that the present litigants do not adequately represent its interest. Virginia v. Westinghouse Electric Corp., 542 F.2d 214, 216 (4th Cir. 1976). The district court has wide latitude in ruling on a motion to intervene and is entitled to the full range of
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reasonable discretion in determining whether these requirements have been met. Id. a. The Proposed Intervention is Timely. In determining whether an intervention motion is timely, a court should look at how far the suit has progressed, the prejudice which delay might cause other parties, and the reason for [any] tardiness in moving to intervene. Gould v. Alleco, Inc., 883 F.2d 281, 286 (4th Cir. 1989). This motion, including the intervenors proposed answer, was filed one week after the defendant responded to the complaint. No scheduling order has been issued, and there is no possible prejudice to the existing parties. This motion is clearly timely. Compare Felman Prod. v. Indus. Risk Insurers, Civil Action No. 3:090481, *4-5, 14-15 (S.D. W. Va., Dec. 16. 2009) (given the Fourth Circuit's liberal policy in favor of intervention, a motion to intervene filed six months after the complaint, during the discovery period, and after the filing of a motion for summary judgment was still deemed timely). b. The JW Intervenors Have a Protectable Interest That May Be Impaired in the Absence of Intervention. While Rule 24(a) does not specify the nature of the interest required for a party to intervene as a matter of right, the Supreme Court has recognized that what is obviously meant . . . is a significantly protectable interest. Teague v. Bakker, 931 F.2d 259, 261 (4th Cir. 1991), citing Donaldson v. United States, 400 U.S. 517, 531 (1971). A court in this circuit recently held that this interest need not amount to full Article III standing. In NAACP v. Duplin County, No. 7:88-CV-00005, *9-11 n.3 (E.D.N.C., Feb. 2, 2012), the court noted that, although other circuit courts are divided
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on the issue of whether an intervenor, in addition to satisfying the Rule 24 requirements, must also demonstrate [Article III] standing . . . the Fourth Circuit has not decided the issue. The court then declined to impose the requirement that defendant intervenors must show Article III standing in order to intervene as a matter of right where the Fourth Circuit is silent on the issue and other case law suggests that intervention is desirable to dispose of as much of a controversy as is possible with as many concerned persons as is compatible with efficiency and due process. Id., citing Feller v. Brock, 802 F.2d 722, 729 (4th Cir. 1986). In any case, it is clear that each of the JW Intervenors possesses an interest strong enough to confer Article III standing.2 Thus, no matter how the relevant standard is framed, the JW Intervenors have a protectable interest within the meaning of Rule 24. Merrill has standing. In 2012 she ran for County Commissioner of Buncombe County and lost a very close election. She alleges that this loss was due to same-day registration during early voting and to improperly cast ballots. Merrill Decl., 19. Merrill has made concrete plans to run again for that office in 2014 and has taken steps to make that happen. Id., 16. Any ruling from this Court reversing the repeal of same-day registration during early voting or enjoining the enforcement of North Carolinas photo ID law, would impair or impede Merrills interests, including her immediate electoral prospects for 2014. Id., 20.

Article III standing, a party must have suffered an injury in fact, there must be a causal connection between the injury and the conduct complained of, and it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Cooksey v. Futrell, 721 F.3d 226, 234-5 (4th Cir. 2013), citing Lujan v. Def. of Wildlife, 504 U.S. 555, 560 (1992) (citations and internal quotation marks omitted).
7

For

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Merrill is also a registered voter of the State of North Carolina. Id., 2. The law repealing same-day registration during early voting and the photo ID law seek, among other things, to prevent voter fraud. Where there is such fraud, North Carolina voters are harmed by having their votes diluted. In considering Indianas photo ID law, the Court of Appeals for the Seventh Circuit noted that [t]he purpose of the Indiana law is to reduce voting fraud, and voting fraud impairs the right of legitimate voters to vote by diluting their votes dilution being recognized to be an impairment of the right to vote. Crawford v. Marion County Election Bd., 472 F.3d 949, 952 (7th Cir. 2007), affd 553 U.S. 181 (2008), citing, inter alia, Reynolds v. Sims, 377 U.S. 533, 555 (1964) (the right of suffrage can be denied by a debasement or dilution of the weight of a citizens vote just as effectively as by wholly prohibiting the free exercise of the franchise). North Carolinas voters, including Merrill, are threatened with the same kind of injury. Moreover, the harm inflicted on these voters exists independently of any proven fraud, and goes beyond any strictly numerical diminution in the efficacy of their votes. As the Supreme Court has observed: Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006); see Crawford v. Marion County Election Bd., 553 U.S. 181, 197 (2008) (aside from the States interest in preventing voter fraud, public confidence in the integrity of the electoral process has independent significance, because it encourages citizen participation in the democratic process.). Thus, both as a
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candidate for local office and as a voter, Merrill can demonstrate that she has Article III standing. Cooksey, 721 F.3d at 234-5. JW can establish associational standing on behalf of its members. An association may assert standing to sue for its members when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organizations purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Lane v. Holder, 703 F.3d 668, 675 n.6 (4th Cir. 2012) (citation omitted). In this case, JW has 7,260 North Carolina members, 143 of whom specifically identified themselves as registered voters and expressed personal support for this lawsuit. Fitton Dec., 18. Each member of JW who is a registered North Carolina voter would have individual standing to sue, like Merrill, for vote dilution occasioned by fraud that could have been deterred or prevented by one or more of the challenged voting procedures in this case. They also would have standing based on the fear that their legitimate votes will be outweighed by fraudulent ones and on their sense of disenfranchisement. Purcell, 549 U.S. at 4. Indeed, in an ongoing lawsuit commenced in Indiana, the court found that JW had established standing based on voters loss of confidence in the integrity of elections. The claims in Judicial Watch, Inc. v. King, Cause No. 1:12-cv-800 (S.D. In., Dec. 10, 2012), concerned the states failure to conduct the voter list maintenance required by federal law. The court found that JW had established associational standing by alleging that its members who are registered to vote in Indiana are injured by Indiana's failure to comply
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with [federal] list maintenance requirements because that failure undermin[es] their confidence in the legitimacy of the elections held in the State of Indiana and thereby burden[s] their right to vote. Id. at *12-13 (citing Purcell, Reynolds, and Crawford). These concerns are related to the core purposes of JW, which are to promote integrity, transparency, and accountability in government and fidelity to the rule of law purposes it pursues by litigating voter integrity claims and lawsuits. Litigating these issues does not, however, require the participation of the individual members of JW. Accordingly, JW can establish associational standing. JW also has standing in its own right as an organization. Organizational standing involves the same inquiry as in the case of an individual. Lane, 703 F.3d at 674. An organization may suffer an injury in fact when [another partys] actions impede its efforts to carry out its mission. Id., citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (standing may be based on a concrete and demonstrable injury to the organization's activities [and] the consequent drain on the organization's resources). JW can assert organizational standing for two reasons. First, JW specializes in making document requests under the Freedom of Information Act (FOIA) and state equivalents, and is one of the leading FOIA requesters and litigators in the nation. Fitton Decl., 5. In its complaint, the United States has asked that North Carolina be barred, pursuant to Section 3(c) of the VRA, from implementing any change affecting voting until it is either (1) precleared by the Attorney General or (2) approved by this Court. Complaint, 93-94; Prayer for Relief, 5.
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The involvement of the United States in approving North Carolinas changes relating to voting would immensely complicate the process of obtaining voting-related public documents from (or about) that jurisdiction. Fitton Decl., 6. An example will make this more concrete. If, at present, North Carolina made or contemplated a change in its voting laws and communicated with attorneys in its employ about that change, those communications would be available for inspection under North Carolinas generous public records law, N.C. GEN. STAT. 132-1. If, however, the United States prevails, and all voting changes in North Carolina had to be either precleared by the Justice Department or approved by this Court, those same communications might fall within an exemption concerning the prosecution, defense, settlement or litigation of any judicial action, or any administrative or other type of proceeding, and might be withheld. N.C. GEN. STAT. 132-1.1(a); see also 5 U.S.C. 552(b)(5) (FOIA exemption concerning litigation privileges). This outcome would frustrate JWs core mission. Even an improper claim of exemption on such a basis would compel JW to expend resources to challenge that claim in court. Such injuries are sufficient to confer organizational standing on JW. See Haven, 455 U.S. at 379. Second, JW expends organizational resources in pursuit of its mission to ensure that voter rolls are current and accurate. Fitton Decl., 8-10. The repealed electoral practices that the United States seeks to reinstate will degrade the accuracy of state registration lists. For example, same-day registration does not have the checks on accuracy including, for example, the simple expedient of a subsequent mailing to the
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address listed on a registration form of North Carolinas current law. Id., 11. The absence of a photo ID requirement increases the risk of a fraudulent vote, which in turn can foul the registration list in a number of ways by, for example, incorrectly confirming a voters active status. Id., 11-12. Such inaccuracies cause JW to incur additional expenses in researching and validating the accuracy of those lists. This drain on JWs limited resources will impair its ability to carry out its public mission. Id., 9, 13-14. See Judicial Watch, Inc., Cause No. 1:12-cv-800 at *15-16 (similar allegations afforded standing to an organization that monitored states list maintenance). In conclusion, both Merrill and JW can readily establish Article III standing. Yet, as noted above, the Fourth Circuit does not presently require such a showing to establish an interest under Rule 24(a)(2). NAACP, No. 7:88-CV-00005 at *9-11. A fortiori, the JW Intervenors can establish the required, lesser showing of a protectable interest. c. Existing Parties Will Not Adequately Represent the JW Intervenors. Ordinarily, the burden of showing that existing parties will not adequately represent a proposed intervenor is minimal. See Virginia v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976), citing Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1971). Moreover, the movant need not show that the representation by existing parties will definitely be inadequate in this regard. . . . Rather, he need only demonstrate that representation of his interest may be inadequate. JLS, Inc. v. PSC of W. Va., 321 F. Appx. 286, 289 (4th Cir. 2009), citing Trbovich. Two presumptions may potentially alter this burden. First, [w]hen the party
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seeking intervention has the same ultimate objective as a party to the suit, a presumption arises that its interests are adequately represented, against which a proposed intervenor must demonstrate adversity of interest, collusion, or nonfeasance. Virginia, 542 F.2d at 216. But this demonstration is not burdensome. Rather, to overcome the presumption, the intervenor need only offer an adequate explanation as to why it is not sufficiently represented by the named party. B. Fernandez & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 546 (1st Cir. 2006) (citation omitted); Canadian Nat'l Ry. Co. v. Montreal, Me.& Atlantic Ry. Inc., CV-10-452-B-W, *18 (D. Me., Nov. 17, 2010) (This presumption creates a low hurdle, citing B. Hernandez); see also JLS, Inc., 321 F. Appx. at 289 (citing presumption but then describing burden as minimal). Second, if an existing party is also a government agency, a more exacting showing of inadequacy should be required . . . Stuart v. Huff, 706 F.3d 345, 351 (4th Cir. 2013). Where movants both share the same ultimate objective as the existing defendants and . . . those defendants are represented by a government agency . . . the putative intervenor must mount a strong showing of inadequacy. Id. at 352. This presumption acknowledges that it is the governments basic duty to represent the public interest. Id. at 351. Courts also have noted, however, the ways in which the governments interest often diverges from that of private litigants. Most obviously, although the government represents the broadest possible public interest, that interest is itself composed of a multiplicity of smaller interests, and often the government is not able to adequately represent each of these. In Cooper Techs., Co. v. Dudas, 247 F.R.D. 510 (E.D. Va.
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2007), the U.S Patent Office and a proposed intervenor, T&B, both sought to uphold the same definition of the statutory term original application, which the plaintiff had challenged. In granting T&B intervention of right, the court observed: Although the Government and T&B both have an interest in seeing the present definition of original application upheld, it is arguably for different reasons, one narrow and one broad, that might foreseeably dictate different approaches to the litigation. Therefore, it is proper to find that the Government does not adequately represent the interest of T&B. . . . When a party to an existing suit must represent multiple and distinct interests, those multiple interests may dictate a different approach to the litigation, and a party representing one of those interests exclusively should be allowed to intervene. Id. at 515 (citations omitted); see also Feller v. Brock, 802 F.2d 722, 730 (4th Cir. 1986) (finding that Department of Labor had interests adverse to intervenor, but noting further that even if DOL agreed with the [intervenor] on the merits, the governments position is defined by the public interest, as well as the interests of a particular group of citizens). i. Only the JW Intervenors Will Insist Upon an Appropriate Causal Link Between a Practice Challenged Under Section 2 and Any Asserted Discriminatory Result. Section 2 of the VRA proscribes both (1) voting practices motivated by a discriminatory intent, and (2) those that lead to a discriminatory result that is, voting practices that operate, designedly or otherwise, to deny equal access to any phase of the electoral process for minority group members. United States v. Charleston County, 365 F.3d 341, 345 (4th Cir. 2004). The United States has asserted both kinds of claims in its complaint. One of the issues of law that is critical to resolving this action concerns what a plaintiff must prove to establish a Section 2 claim alleging a discriminatory result. The
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United States complaint plainly contemplates a simple statistical showing of disproportionate impact in other words, a showing that the provisions of HB 589 generally affect different racial groups in different degrees. This approach pervades the relevant portions of the complaint. E.g., Doc. No. 1, 29-30, 37-38, 42, 50, 69-76, 9798. Although the complaint contains broad historical allegations, there is no effort to connect causally the actual enforcement of the challenged voting procedures of HB 589 to any adverse result harming the voting rights of minority voters. See id., 16-22, 79. A number of courts have rejected a 2 challenge based purely on a showing of some relevant statistical disparity between minorities and whites, unless there also is evidence that the challenged qualification causes that disparity. Gonzalez v. Ariz., 677 F.3d 383, 405 (9th Cir. 2012), affd, Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247 (2013). That case is illuminating. Despite findings that Latinos had suffered a history of discrimination . . . socioeconomic disparities . . . [and] racially polarized voting, the claim still failed because there was no proof of a causal relationship between [the challenged] Proposition 200 and any alleged discriminatory impact on Latinos. Id. at 406; see Irby v. Virginia State Board of Elections, 889 F.2d 1352, 1359 (4th Cir. 1989) (upholding rejection of Section 2 claim in the absence of a causal link between the [challenged] appointive system and black underrepresentation); Brown v. Detzner, 895 F. Supp. 2d 1236, 1250 n.14 (M.D. Fla. 2012) (citing similar cases). Defining and then implementing the proper standard is not an esoteric issue, of interest only to lawyers. It is a matter directly affecting the Equal Protection rights of the
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JW Intervenors as is true of any effect or result or impact test based on race. In discussing a Title VII claim, Justice Scalia noted that disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decisionmaking is, as the Court explains, discriminatory. Ricci v. DeStefano, 557 U.S. 557, 594 (2009) (Scalia, J., concurring); see also Mt. Holly Gardens Citizens in Action, Inc. v. Twp. of Mt. Holly, 658 F.3d 375, 381 (3rd Cir. 2011), cert. dismissed, 2013 U.S. LEXIS 8414 (2013) (discussing risks associated with disparate impact claims under the Fair Housing Act). The JW Intervenors plan to defend their own Equal Protection rights by properly defining the Section 2 results standard. The named defendants, on the other hand, who can prevail in a number of ways, are not, apparently, raising this issue. None of the North Carolina defendants have made this point as a defense in any of the three answers they have filed in response to this and two similar lawsuits. 3 This is not a mere difference in tactics. Rather, the JW Intervenors and the defendants have different interests. See Bragg v. Robertson, 183 F.R.D. 494, 496 (W. Va. 1998) (though Movants and the [defendants] have the same ultimate objective, intervention was granted, in part because Movants raise a defense not raised in the [defendants] Answer . . . that the relief sought by Plaintiffs constitutes an unconstitutional taking.); see also Ohio River Valley Envtl. Coalition, Inc. v. Salazar, Civil Action No.

Doc. No. 19; N.C. State Cfc. of the NAACP v. McCrory, No.1:13-cv-658, Doc. No. 24; League of Women Voters of N.C. v. State of N.C., No. 1:13-cv-660, Doc. No. 26.
16

See

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3:09-0149, *4 (S.D. W. Va., June 18 2009) (even though an intervenor had the same goals as a defendant, a difference in degree of interest could motivate . . . a more vigorous defense, and this difference in vigor could unearth a meritorious argument overlooked by the defendant); Canadian Natl Ry. Co.,CV-10-452-B-W at *18 (A difference in kind or degree provides sufficient explanation for adversity of interest). 4 ii. Existing Parties Will Not Adequately Represent JWs Interest in FOIA. JW is one of the leading submitters of FOIA requests in the nation. Fitton Decl., 5. If the United States becomes involved in approving North Carolinas voting laws and procedures, it will complicate the process of obtaining documents and make the State less willing to cooperate. Id. As one example, documents that previously would have been available on request would become subject to exemptions concerning litigation and related privileges. See N.C. GEN. STAT. 132-1.1 (2013), 5 U.S.C. 552(b)(5). This would frustrate JWs core mission and require it to litigate more frequently to obtain documents. The existing defendants will not be concerned with vindicating JWs interest in FOIA and public records requests. (In fact, government agencies are often hostile to open records requests on account of the time and expense involved in responding.) Thus,
4 Indeed, even if it wished to, North Carolina would not have standing to assert the Equal

Protection rights of the JW Intervenors for them. To bring a claim for a third party, a litigant must have suffered an injury in fact, must have a close relation to the third party, and must show some hindrance to the third partys ability to protect its interests. Powers v. Ohio, 499 U.S. 400, 410-11 (1991) (citation omitted). It is unclear how North Carolina is injured by a violation of the Equal Protection rights of the JW Intervenors; but even if it were, there is no close relationship between them, nor any hindrance preventing the JW Intervenors from protecting their own rights.
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the defendants will not adequately represent JWs interest in FOIA matters. iii. Existing Parties Will Not Adequately Represent JWs Interest in Maintaining Accurate Voter Rolls. JW has an interest in maintaining the accuracy and integrity of voter rolls across the nation, including those in North Carolina. In this action, JW will seek to emphasize that the repealed electoral laws that the United States seeks to reinstate would make JWs job harder and require the dedication of additional resources to accomplish it. Accordingly, JW will seek to show that the potential for various kinds of electoral fraud is greater where registration lists are made less accurate by same-day registration during early voting, out-of-precinct voting, or the absence of photo ID. Fitton Decl., 11-12. This is not the kind of showing that the State is likely to make with any vigor (or at all). Such admissions would not only embarrass North Carolina, they might affect its legal liability under Section 8 of the National Voter Registration Act, 42 U.S.C. 1973gg-6, which requires states to conduct certain kinds of voter list maintenance. Fitton Decl., 15. Thus, the defendants will not adequately represent JWs interest in list maintenance. II. The JW Intervenors Should be Granted Permissive Intervention. Under Fed. R. Civ. P. 24(b), permissive intervention is appropriate where (1) the application is timely; (2) the moving partys . . . defense and the main action have a common question of law or fact; and (3) the proposed intervention will not unduly delay or prejudice the adjudication of the original parties rights. Bussian v. DaimlerChrysler Corp., 411 F. Supp. 2d 614, 631 (M.D.N.C. 2005). As set forth above, the JW Intervenors have identified a number of common questions of law and fact concerning,
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for example, the need for the reforms contained in HB 589 and the harms they will suffer if these are reversed. In addition, this motion is clearly timely, and comes early enough that it will not delay or prejudice the adjudication of the original parties rights. Indeed, this motion presents an unusually strong case for permissive intervention. As explained above, the Justice Departments lawsuit against North Carolina was widely anticipated. In fact, both the NAACP (whose State Conference is the plaintiff in a related lawsuit) and the ACLU (which is acting as the plaintiffs attorney in the other) attended a White House briefing in July 2013. Fitton Decl., 23. At that briefing, the attendees either were told, or were left to conclude, that a lawsuit by the United States against North Carolina was imminent. Id., 24. Once HB 589 was signed, they and other private organizations and individuals immediately commenced their lawsuits. As a result, once the United States commenced this action, it was all but inevitable that it would be consolidated with these other actions for some or all purposes. In further consequence, these private organizations, which share many policy aims, orientations, and goals, will find themselves aligned in the same action, and on the same side, as the United States, without having to seek to intervene or to meet the standards ordinarily imposed upon private intervenors. The addition of the JW Intervenors will help to equalize the presentation of pertinent facts and legal arguments between the plaintiffs and the defendants, while adding to the arguments the defendants will make. The JW Intervenors respectfully submit that their efforts as parties will add to the development of a complete and
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balanced record. See VMI Found. v. Thornburgh, Civil Action No. 90-0084-R, 90-0126R, *11 (W.D. Va., Nov. 2, 1990) (VMI Foundation has stated that it intends to present different legal arguments than VMI, and that it will not impede speedy resolution of this case. Presentation of all possible legal arguments will be helpful to this Court.). Moreover, district courts have regularly permitted intervention in voting rights cases, including those in which the United States or another governmental entity has been a party. See, e.g., County Council v. United States, 555 F. Supp. 694, 697 (D.D.C. 1983) (granting intervention where local perspective on the current and historical facts at issue could be enlightening); Shaw v. Hunt, 861 F. Supp. 408, 420 (E.D.N.C. 1994); Vera v. Richards, 861 F. Supp. 1304, 1310 (S.D. Tex. 1994); Miller v. Blackwell, 348 F. Supp. 2d 916, 919 n.3 (S.D. Ohio 2004); Miller v. Johnson, 515 U.S. 900, 909 (1995); Abrams v. Johnson, 521 U.S. 74, 78 (1997). See also Texas v. Holder, No. 1:12-cv-00128, Doc. No. 6 (Attorney Generals Response To Motion to Intervene, acknowledging liberal grants of permissive intervention in VRA lawsuits and identifying cases). Conclusion For the foregoing reasons, the JW Intervenors respectfully request that their motion to intervene be granted. Dated: December 10, 2013. By: JOHNSON LAW FIRM, P.A. /s/ Gene B. Johnson _ Gene B. Johnson State Bar No. 15917 P.O. Box 1288 Arden, North Carolina 28704 Telephone: (828) 650-0859

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Facsimile: (828) 650-0913 Email: gbj@johnsonlawnc.com Robert D. Popper New York Bar No. 2357275 JUDICIAL WATCH, INC. 425 Third Street, SW Washington, D.C. 20024 Telephone: (202) 646-5173 Facsimile: (202) 646-5199 Email: rpopper@judicialwatch.org (appearing pursuant to Local Rule 83.1(d)) H. Christopher Coates South Carolina Bar No. 80853 LAW OFFICE OF H. CHRISTOPHER COATES 934 Compass Point Charleston, South Carolina 29412 Telephone:(843) 609-7080 Email: curriecoates@gmail.com (appearing pursuant to Local Rule 83.1(d)) Attorneys for Defendant-Intervenors Christina K. Gallegos-Merrill and Judicial Watch, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on this 10th day of December, 2013, I transmitted the foregoing document to the named parties emails by means of an electronic filing pursuant to the ECF system. /s/ Gene B. Johnson Gene B. Johnson _

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