Supreme Court Decides Berger v. North Carolina State Conference of the NAACP

Faegre Drinker Biddle & Reath LLP

Faegre Drinker Biddle & Reath LLP

On June 23, 2022, the U.S. Supreme Court decided Berger v. North Carolina State Conference of the NAACP, No. 21-248, holding that the speaker of the North Carolina State House of Representatives and the president pro tempore of the North Carolina State Senate are entitled to intervene in federal litigation challenging North Carolina’s voter-ID law.

The North Carolina legislature passed the voter-ID law at the heart of Berger in December 2018, requiring voters to provide photo identification to cast a ballot and instructing county election boards to provide ID cards at no cost to voters. After the law went into effect, the North Carolina State Conference of the NAACP filed a lawsuit in federal court to block the state from enforcing the law, arguing that it violates Section 2 of the Voting Rights Act, which, among other things, bars racial discrimination in voting.

Philip Berger, the leader of the North Carolina Senate, and Timothy Moore, the leader of the North Carolina House of Representatives, sought to intervene in the lawsuit to represent the legislature and state’s interest in defending the law, contending that the North Carolina Attorney General was failing to vigorously do so. The Attorney General was a former state senator who voted against an earlier voter-ID law and filed a declaration in support of a legal challenge against it. The district court rejected the legislators’ request to intervene in the case because the Attorney General and the North Carolina Board of Elections were already defending the law and the legislators had only raised “garden-variety disagreements over litigation strategy,” as opposed to concerns regarding inadequate representation. The Fourth Circuit affirmed, applying a presumption that the Board, represented by the Attorney General, adequately represented the legislators’ interests and holding that the officials could not overcome that presumption.

The Supreme Court reversed in an 8-1 decision, observing that Federal Rule of Civil Procedure 24(a)(2) promises intervention to those who bear an interest that may be practically impaired or impeded “unless existing parties adequately represent that interest.” Though the Court noted that some lower courts have suggested that a presumption of adequate representation remains appropriate in certain classes of cases, none of those presumptions are applicable in this context. It explained that the state has authorized different agents to defend its interests because each may be expected to vindicate different points of view. The Court reasoned that it would “make little sense and do much violence to our system of cooperative federalism” to presume that different state agents — often members of different political parties or factions — fully overlap in interest.

Justice Gorsuch delivered the opinion of the Court. Justice Sotomayor filed a dissenting opinion.


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Faegre Drinker Biddle & Reath LLP

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