“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link
Trump Fourth Circuit judges Marvin Quattlebaum, Julius Richardson, and Allison Rushing argued in dissent that the full court should overturn a district court ruling and approve state Republican legislative leaders’ intervention in a federal lawsuit brought by the NAACP to challenge a North Carolina voter ID law, as Quattlebaum and Richardson had ruled in a 3-judge panel decision that was vacated by the full Fourth Circuit. The majority rejected the Trump judges’ view and upheld the district court ruling in its June 2021 decision in North Carolina State Conference of the NAACP v Berger.
Voters and civil rights groups have filed challenges in both federal and state court to a restrictive North Carolina voter ID law passed in 2018 despite the veto of the state’s Governor. The NAACP’s federal lawsuit contends that the law violates the Voting Rights Act because of its disparate impact on minorities and also violates the Constitution. The lawsuit named the Governor and the state board of elections as defendants, as usual in such cases, but the Republicans leaders of both the state Senate and House moved to intervene to help defend the law, claiming that the executive branch officials would not adequately defend it on their own.
A district court twice rejected the motion, finding that the executive branch’s defense was adequate and the Republican leaders could participate by filing friend-of-the-court briefs. This was not enough for the Republicans, who appealed to the Fourth Circuit and, as reported in this blog, a 2-1 panel decision by Trump judges Quattlebaum and Richardson in 2020 ruled that they could intervene. That decision was vacated when the full Fourth Circuit decided to reconsider the case.
In a 9-6 decision, the Fourth Circuit upheld the district court decision to reject the Republican leaders’ intervention. Under federal law, the majority explained, the Republicans have a right to intervene only if the state Attorney General, who has been defending the law in federal and state court, is “inadequately representing” the state’s interest in upholding the law. As the majority continued, the district court found that the Attorney General was “actively and adequately” defending the law, and that intervention by the Republicans would likely “delay litigation of the case” and could prejudice the NAACP by requiring it to “address dueling defendants” with “multiple litigation strategies.” In fact, the majority noted, a trial in the district court had been scheduled for January 2021, but it has been “postponed” until the intervention issue has been resolved. The majority found that the district court rulings were proper and did not reflect any “abuse of discretion,” and accordingly affirmed its decision.
Trump Judge Quattlebaum harshly dissented, joined by Trump judges Richardson and Rushing plus several others. The focus of the dissent was a law passed by the Republican state legislature stating that it is the “public policy” of North Carolina that both the governor and the legislature “constitute” the state when it is sued and requesting that federal courts allow both to “participate as a party” when the state is sued in federal court. According to Quattlebaum, the district court did not give sufficient “weight” to the state law in denying intervention and improperly required that there needed to be a “strong showing” that the Attorney General’s representation of the state’s interests was inadequate, particularly since the Attorney General and the governor had “opposed” the voter ID bill before it passed.
The majority explained what was wrong with Quattlebaum’s dissent. The district court had acknowledged the North Carolina law, but it correctly recognized, as the majority wrote, that a state legislature’s “policy judgment about the value of legislative intervention” in a federal case “does not override our normal standards for evaluating the adequacy of existing representation” in such cases. If it did, the majority pointedly noted, the federal courts would “risk turning over to state legislatures, rather than district courts, control over litigation involving the states.”
The majority also ruled that the district court had properly applied the standards for evaluating adequacy of the Attorney General’s representation in the case. It was “well established” in Supreme Court and other precedent, the majority noted, that there is a “presumption of adequate representation” when the proposed intervenor seeks the same objective as the party already in the case – in this case, upholding the voter ID law. Fourth Circuit precedent makes clear, the majority continued, that in such a case, the proposed intervenors must in fact make a “strong showing of inadequacy” to overcome that presumption. “With or without” that standard, the majority went on, there was no good reason to find that the district court had “abused its discretion” in finding the Attorney General’s representation adequate. The fact that the Attorney General opposes voter ID laws as a matter of “public policy,” the majority wrote, is “no ground” for a court to determine that he “would abdicate his official duty” by mounting a “sham defense” of the statute as the Republicans were suggesting, an allegation that found no support in the record and is a “disservice to the dignified work of government lawyers” in such cases, even when they personally disagree with the position they advocate.
America has seen all too clearly the problems caused by far-right state legislatures who disagree with election officials and others with respect to the conduct of elections, voting, and other issues. The majority opinion appropriately sought to prevent such “political questions” from interfering in federal court litigation, which would force the courts to regularly “take sides” in such “political battles” and “infuse politics into an already politically-divisive area of law and needlessly complicate” such litigation. But this is exactly the result that Trump judges Quattlebaum, Richardson, and Rushing would have produced. As part of our fight for our courts, including with respect to the Fourth Circuit vacancy that will open in August when Judge Barbara Milano Keenan takes senior status, it is crucial that the Senate confirm Biden nominees to our federal courts who will further resist such efforts.