case one eight dash one four three seven league of women voters of michigan and all versus ruth johnson at all or argument fifteen minutes per side mr torch and ski for the for the proposed intervenors below i want to start out and just sort of make sure the court understands exactly what the case is on merits below the case is basically the plaintiffs coming in front of the three judge panel and saying there are too many republican congressman from michigan our clients are eight of the nine republican congressman from michigan the lawsuit explo expressly seeks to reduce the number of republican congressman from michigan if that doesn't demonstrate our client's interest substantial legal interest in the case we're not sure what else could it be that the lawsuit literally says there are too many of you and we are representing the you so we believe that alone so is a substantial legal interest but i want to turn to what i believe our opponents believe is their best argument which is the inadequate representation standard ok before you move on to that in your apply brief at pages twelve and thirteen you cite the eric cantor case chaotic i mean that was that was also a redistricting wrecked and cantor intervened in that case yes and alleging that he had a substantial interest in the redistricting process is that correct yes and let me just walk you through the background of that case that i mean is that correct yes ok i understand that his intervention was on a post yes but the other side therefore conceded that the congressman had a substantial interest that's that is correct and also also the opinion says that his successor was allowed to substitute into the case because cantor was in the case in his official capacity yes as a congressman are the congressman here seeking to intervene in their official capacity in their individual capacity or both i believe that when we in our intervention papers below we style that is in our official i capacity capacity ok so i think that's that's important because your first interest that you assert is their relationship with their constituents which i think would be the official position the official capacity and their relationship to the the district judge their district panel i should say said that there is no relationship different for the congressman than the people as a whole generalized in that district i think that's got to be clearly wrong because the congressman represents his constituents at least in the official capacity so already i think that might be your best case as to the substantial interest that's all yet i think that's that's a hurdle is case to i cause i don't really buy the argument that they're going to be financially disadvantaged because they might have to campaign in more districts that they might lose out on the seats those i think go to more of the individual damages of these congressman in their individual capacity to pose their official capacity but as case yes i would like to talk about that case a little more so remember what happened in that case that case was you know they were they were permitted to intervene in front of the three judge panel and again it's a three judge panel case just like this one on undirected appeal when it went up on direct appeal the reason that the court dismissed it on standing was because the particular congressman whose district was affected was congressman forbes and he had announced he was running in a different district in a door large him and his council represented that he would run in the old district if it were restored and ultimately one of sending a letter to the court after oral argument said no no no he's running in the new district that he said he was going to run in regardless of what the court does here and it turned out that when they actually read through the map congressman cantor and then congressman bret's disrepair ultimately not affected by the redraw at all so they were the question was standing post remedy in this case you know the the the plaintiffs here below are saying the entire map needs to be with redrawn because every one of these districts is essentially gerrymandered to favor republicans  therefore we need to redo the whole map and that means that every single congressman in the state is going to be affected if they get their remedy and that's that mean that every congressman regardless of party should be able to intervene if the congressman wanted to defend the map yes and we represent eight of the nine congressmen so one of the republican congressman chose not to move to intervene so we do represent eight of the nine congressmen not all of them all of the public but what about the other members of congress who are of a different party for instance would they have a right to intervene as well i think they would your honor they have they have the exact same legal interest as our client is the legal interest exactly what we asserted we've asserted three different legal interests one as judge griffin points out in our official capacities the new district boundaries will change relationships between the constituents and their members of congress after eight years of being represented in the same congressional district for the fourth that a legal interest of the congress members or is that a legal interest of the constituents i think that there is a relationship between the members of congress and their constituents so you know but i also your honor i'll quit out in redistricting in election cases political parties and candidates have often been allowed to intervene because of the interests of their voters i mean i guess what i'm i guess one of the other sort of interests of the voters already represented by who by the plaintiffs on the one hand and the defendant on the other and for a couple reasons one you know the the secretary of state's role here is to essentially administer the election that the exact contours of the district lines don't affect the secretary directly the secretary is going to administer whatever map comes out of this court process or you know or legislative remand for a new map the members of congress who used to represent let's say one part of the just one part of the state now suddenly live in a district  represent that is a wholly different part of the state that the interests of our car of the congressman and the interests of the state government defendant who's charged with enforcing the chief elections officer very dramatically because the exact contours of the map don't matter to the secretary and her facial capacity it was a little bit perplexed by that i would think the attorney general would be defending the state of michigan and they were district rather than the secretary of state just for that very reason  attorney general usually one in charge with defending the law and your honor i think that gets to the point of the strategic nature of who the plaintiffs sued and how and why they sued who they sued in a lot of these cases you'll see that you'll see plenty of sue the state the attorney general the legislature in this particular case they sued the term limited secretary only they did not sue the state of michigan they did not sue the governor they did not sue the attorney general and they know that no matter what the outcome of the election is this november the current secretary is term limited and there will be a new secretary in january who will be the secretary when the case goes to trial and state's position with regard to this intervention the secretary of state supported our intervention so there's no  i think if you look back at the history of redistricting cases redistricting redistricting or one of the cases where intervention is often found in particularly in the six circuit which has been generally forgiving to people seeking to intervene even when there are state government defendants like for example quarter versus ballinger where a group of students sought to intervene to defend the university of michigan's affirmative action program those students who had a perspective interest in potentially applying were found to have a substantial protectable legal interest the different from the university of michigan in the michigan state a f l c i o v miller case this court also applied a very relaxed manner to granting intervention and allowed the chamber of commerce to intervene the chamber of commerce was not actually directly even directly regulated by the campaign finance law that was an issue there obviously in a competitive environment it mattered but in that case you no there was a governmental defendant the state chamber of commerce was permitted intervene this this circuit in particular has been very forgiving to people seeking to intervene and very generous in allowing intervention at a permissive an adventure no or as of a right those were as of right intervention cases your honor you know the big as to the permissive intervention the three judge panel rationale for  ying permissive it or mention was that intervention would unduly delay the case and then prejudice the point how i don't know your hundred i mean i mean i can't see how there would be delay you'd have one other tourney and under the plaintiffs theory they have the same defenses they are exactly the same so the fact that you have two attorneys presenting the same defenses i don't see how that would delay any saying and then how there be any prejudice from the same defenses being raised i mean i think i have to ask the other side about it but i i don't see any credence to that that ruling and if there's no credence to it then i think it might be an abus even raised it's probably wait let me ask you directly the question are your defenses going to be different than the defenses that the secretary has been raising i believe that our defenses would be yes i believe that our defenses would be different and i wanted when you'd be precise then short as to how your defenses would be different because i think you can dig yourself into a hole either way you answer this question and so we want you to tell us so that we know which hole you choose to be that thank you your honor gets i think first of all i would like to point out in their in their opposition brief you're the the plaintiffs below point out that the secretary allege some of the additional defenses that we alleged in our motion to dismiss that was attached to our motion intervene but i would point out to you that the secretary added some of those in their answer that was filed well after our motion for summary our motion to dismiss was filed so whether the secretary would have done that but for our proposed intervention i don't know in addition basic problem your i haven't really answered my question yet but the basic problem is if you are raising different defenses then you open yourself up to the idea that this is going to delay things and if you're raising the same defenses then why isn't there adequate representation ok let me see if i can address those i think that some of the defenses that we would raise are ones that the court is going to be required to address it ones are the court is going to be required to address for example the supreme court about two months ago decided on a nine nothing the wood for versus gill case the secretary hasn't yet brought that case to the attention of the panel below and that case has been out there for about two months and maybe ultimately definitive in the in the merits of the case latches for example was brought up as an affirmative defense but wasn't urged initially as part of the motion to dismiss  by the secretary ok it is it is preserved for the military of the first amendment claim that they're bringing was not raised at the motion for summary judgment i don't recall whether it was included in one of their affirmative defenses but i think there are a number of rays that the want to intervene to make sure the secretary of state does raise all these defenses that's right your honor and should there be any change in that while there will be a change in the secretary of state come january you know we would want to also be able to preserve our right to appeal because here's the problem in some of the cases where people have intervened in redistricting cases sort of after judgment on merits but before remedy the courts found that to be untimely so we're sort of in this you know you're sort of in a problem if you do any you're in a problem if you don't because if you don't intervene if you intervene too early the other side says oh you're too early the state's got your back and then if you intervene to if you come in to the remedy phase the court then that then the other side says no you're too late because the because the liabilities already been decided so we were sort of in a catch twenty two and that's why we decided intervening early was the best for us thank you and i have three minutes which note i've got some more questions for you regarding the inadequate representation requirement the miller case says the following this burden is minimal because it is sufficient that the movement proof that the representation may be an adequate one is not required to show that the representation will be in fact it adequate all right miller cases maybe and i would but we have other case law that says you cannot consider future events that what you do is you look at the representation now as opposed to speculating as to the future is there a conflict between those authorities well your honor in this there is a little bit but in this particular case i think there's a difference between speculation and things that you know for sure will happen in this particular case secretary johnson is term limited she cannot run again we don't know who's going to secretary of state will be direct and that the democratic candidate already is sympathetic to the plaintiffs position that that that is correct i don't know who the republican candidate will be because the convention hasn't taken place i believe the primaries next week i don't think sector states on the primary i was an ok idea i think it's cited by the state you probably know better than i do have to hear it all but i mean if you know if there are more than one candidate i guess i believe there is i'm not sure that the republican party has a you know their positions i do not run but my point is there will be a different person there come january and that different person i mean particularly if it's a democrat probably will choose not to defend us and your honor i think we pointed out in our briefing there is a oh no it beep of one of the republicans may choose not to defend that i mean your honor that it's the way the republican party is split now in michigan you've got the snyder wing and you've got the trump  then you know more about the politics of michigan than i do i'm from michigan i understand and there's the question of course whether you would point it out or someone pointed out perhaps it's griffin that the attorney general is another and that could be interested in defending a state that's correct your honor and the attorney general is not in the case the attorney general is not named as a defendant in a general position to turn over to and the attorney general did not seek any general seek to intervene no your  and did you did your client's request that the attorney general is the i'm not information do not know the facts outside the record is was the attorney general is the attorney general may please the court right hurley for the voter apple lease there really isn't any question here that secretary of state is vigorously defending this lawsuit and that really is an overarching reason why this court should affirm that the decision below we've seen in the record that the defenses that the appellant's claim the secretary isn't pursuing are being pursued the secretary has raised the latch as defense the secretary moved to dismiss and was successful in part the secretary  denied just disability there's no question here that if that's all true how do you justify the ruling by the three judge panel in the permissive vention most motion when they said they denied it on the has raised that will inject a way they want to rehear have readdress see interests ok they timely filed their motion to intervene and then it was denied before the three judge panel ruled on the motion sickness isn't that the scenario that is true ok so there was no at the time the judge three judge panel denied the motion and there would be no possibility of delay or prejudice i don't i don't think well there was no ruling at that point on the merits on that particular issue perhaps so but i think we have an experienced three judge bench who's very familiar with this cut type of protracted litigation the cases are very clear that the eight and i write the stuff that's generalized i mean tell me specifically how there would be prejudice and delay if they intervened we have had the addition of parties is going to inject additional discovery you have one to one more attorney if they have the same defenses like you say i can't see another attorney really causing that much delay or problem well your honor discovery closes in three weeks well ok that was also you know that was set after the three judge panel denied this motion to intervene and if that's wrong it's going to have to be changed i think i mean you can't justify the ruling by subsequent actions that the three judge panel took well you know i'm looking at that at the time they denied the intervention was an abuse of discretion and appears to me like probably was as what what they said i can't find a justifiable reason for either delay or prejudice and if you can come up with one i'm willing to hear it your honor we know that this is on a very tight timeline as it doesn't have to be this that doesn't they they have allowed three election cycles to go through they're going to allow the fourth two thousand eighteen this would only affect twenty twenty that would actually only be while election cycle because there's going to be a census taken in two thousand and twenty and they'll be redistricting either by the legislature or by this commission that's going to be on the path to ensure there's a result before that election and i think this court exercising its discretion and foresaw that the addition of eight additional parties would inject delay and prejudice in the case and they did not want their  same arguments for the congressman ok i all right i are you want to talk about intervention of of right and why don't the congressman in their official capacity have an interest in their representation of their constituents i mean that's what they're elected for to be representatives in washington for the people in the first congressional district the second whatever and why would not changing the shape of the district affect that relationship between the congressman and his official capacity and the constituents that currently live there well your honor i think the cantor case that you identif previously actually cuts in our favor it wasn't the initial intervention was not contested so the in there a they they conceded that cantor had a substantial interest they didn't have the first prong so there was not contested that a congressman and his official capacity has a substantial interest in his constituents so i mean i think that helps well the congressman here and that the cantor thing was about the substitution and also that what there was the secretary of state refused to defend or something to that point but i think there was a change as as well but they also said because he the cancer was in the case in his official capacity that his successor in his official capacity could continue the litigation which i think is important in the supreme court found that they didn't have standing because they didn't demonstrate for any hard headed and that's a different issue of whether you have a substantial interest well you can have a substantial interest without having standing character i think that's fair but i think to the extent we can glean anything of meaning from that case and  you know suggest that standing and intervention interests are similar the supreme court said congresspersons you haven't demonstrated any harm there's no record here to demonstrate that this is true and rejected their argument that they did have standing i think if we're going to draw analogies to stanning cases that case actually suggest similarly here that these congressmen who haven't put anything in the record about their harm about the investment they'll make in their reelection attempts that there is a similarly is no record here to demonstrate the harm even if we think it even if we draw similarities from the standing increase that the record did did have some indication of the congressm feeling that they had invested a lot in their particular districts would that be enough to establish a legal interest that would warrant intervention that right your hon or i don't think under this course president president would obviously it would address the record issue but the the appellant's point to the miller case where this court said it was a close call there you had the chamber of commerce participating in the legislative process that led to the to the act that was being challenged there were there was a record of continued opposition to these kinds of issues in regulation on three of the four provisions that were being challenge and this court said there it was a very close call as to whether the chamber had a substantial legal interest here these appellants are much more removed in the chamber was in miller these these republican congress persons were not involved in the legislative process the michigan legislature was do they have do these congressmen i think they're all men do they have significant legal interest that needs to be protected and  having trouble articulating what that significant legal interest is but i'm wondering how you would rebut the statement your opponents that they do have a significant legal interest in apparently their focus is entirely on their suit in their official capacity yeah and i think your honor i'm struggling as well because we don't have any authority that is recognized the type of interest they're advancing as being a significant legal interest for purposes of intervention so what about the idea that they're protecting their constituents in some way i think your honor that the to the extent that's an interest that's an interest that the secretary of state is is protecting which goes back  understandably to the adequacy of representation but i do want to focus there because i think that this court need not even reach the substantial legal interest question what happens if if the new secretary of state decides not to defend this then they would have a legal matters that you would be further delayed then you aren't out right well your honor actually more i think that's a fair question and certainly in the event there is a secretary whether it be  democrat or republican who chooses not to can mount the vigorous defense that the current the secretary is currently mounting we would certainly acknowledge that the adequacy of representation issue at that time and in under this court's precedent we look at adequacy now not in the future but if that happens then i think the district court would look at that issue and i think there would be a much stronger case at that time to have someone else take over the defense whether  not necessarily your honor there's no reason why the law firm that's current it's an outside law firm representing secretary of state they're involved in all this nonparty discovery they're representing witnesses as well there's no reason why whether it be in the attorney general or the michigan legislature there's no reason why any of those bodies couldn't maintain the defense that the secretary is currently mounting and keep this case on track for a resolution that threw it at a trial in early twenty  then whatever appellate proceedings happen there after so that there's the supreme court right straight out of the district court if the adjudication on the merits your honor there's the statute provides a direct appeal to the united states approach or best case that well i think you know i can't speculate as to what the supreme court will or wasn't it a mandatory jurisdiction in the supreme court they have to take the merits decision this three judge first the new secretary of state does not defend then the congressman would have a more meritorious argument of an adequate representation i think really undercut your takes because i think under permissive intervention we look we look to the efficient ministration of justice in the case and to me allowing them to intervene at this point would be more efficient for the administration justice and otherwise you're going to have to redo all this discovery all the depositions that were taken from now through january first and allowing them to intervene now would keep the case from being delayed and i  could be in your interest to allow them to intervene now rather than in january and have the case move along and i'm kind of surprised that you are opposing this since the net effect i think is going to be further delay in your case and i don't i really don't think it's in your interest only it's of course interest not to allow them to intervene when when we just admitted that january first if what happens which i think is a very realistic possibility in michigan the democratic candidate who is sympathetic to the points gets in there she will not defend well you're going to redo the whole thing so i think as to permissive  case would come back to this panel by the way if j p were a first they file a second motion intervene and it's denied it's going to come back to us at least for me i think they would be allowed to intervene at that point but to let you answer your point why do you think these would not be the proper parties to intervene if hypothetically the election occurs and if hypothetically the democrat wins and if hypothetically she or he whoever it or an attorney general in his or her because we've got official capacity who would be either closer to and have a more direct interest akin to the chamber of commerce and miller of the michigan legislature obviously participate in the passing of this law or the attorney general of michigan who says a similar duty like the secretary of state to protect in a in a poll of michigan laws i just think that there are as opposed to the highly personal interest of an individual or eight individual  a point back up defense based on contingencies that may or may not happen we aren't there the secretary of state is mounting a vigorous defense that in and of itself is an adequate basis under intervention as of right and permissive intervention to affirm the decision below and in the event these contingencies materialize then we'll look at those issues then but we don't under under rule twenty four appoint backup defendants just in case something might happen months or years later so we'd respectfully ask the  a couple of points on rebuttal you know we believe that in the interest of judicial economy having us in the case at this stage makes most sense for exactly the reasons that i just pointed out we're in a catch twenty two if we wait till january and find out that there's a secretary of state of a different party who abandons defense of the was filed after that after this intervention was denied but they came out and said they shouldn't be allowed to intervene this is the secretary of state's lawyer came in and said the speaker of the house should be permitted intervene because you know i was the lawyer for the secretary i don't know if i'm going to be continuing in this case in january i don't know if the new if there's a new republican secretary i don't know if i'll stay i don't know if there's a new democrat secretary if i'll stay i mean even though even the lawyer for the secretary of state recently told the district court i don't know if i'm going to be here in january that been ruled on in the so we don't know really who will be the michigan speaker of the house that is true that there is a teen election there's a lot of unknowns in these kinds of cases in your honour's i mean i would like to point you to you know the abbott the prez case that was just decided by the supreme court it was a section two case not a political gerrymandering case but in that case there was congressional intervention as defendants republican congressmen who like the map intervened and so there's lots of cases that opposed in that case you know i don't believe it was opposed in that case i think it  was conceded they had a substantial interest in their official capacity which is the carrier yes cantor was opposed either now to me that shows that everybody knew that cantor in his official capacity had a substantial interest  canter in the in the whitman which was the cantor case i believe it was unopposed i do not recall that the docket in the texas case is about four thousand and so so you're saying it was unopposed as opposed to a concession i don't know your honor we just used the word unopposed when i asked you to distinguish between unopposed and concession i'm sorry or they were they were allowed to intervene i don't recall from the four thousand entry not have been saying conceded a lot and now you're saying unopposed and i just you know it's a it's a matter of fact that one can find out by reading the opinion carefully which is true and i'd like to also point the court to a couple of other cases where intervention allowing other parties to intervene is defendants has as been permitted there was an eleventh circuit case from one thousand nine hundred three called meek the metropolitan dade county nine eighty five f second fourteenth seventy one there was a three judge panel case from ninety two called nash be blunt it's reported at one forty f r d four hundred in that case the court actually said quote it is the normal practice in reapportionment cases to allow intervention of voters party officials in the lie supporting the position that could theoretically be represented by public officials and there are and that the national bundt case in particular had a ruling on it or was i just picked that was a ruling five o seven us ten fifteen in one thousand nine hundred three there was some kind of settlement agreement and different parties sought to intervene and if you look at that case in particular it cites a couple of other cases where intervention as defendants was granted and the court basically said it's uncontroversial in redistricting cases to allow various parties with differing interest to intervene as defendants in redistricting case and i said when the various parties were mentioned were members of congress listed among the various parties i believe nash was a state legislative redistricting case i don't believe it was a congressional case but i don't know that the type of district matters for this court whether it's a congressional district versus a state legislative district in terms of intervention all right if we were to reverse and allow you to intervene would discovery have to be redone as discovery actually occurred i know it's it's it's allowed right now to the end of august but has it actually taken place your honor i have been monitoring the docket some discovery has taken place there are motions to compel pending from various sides various parties various non parties motions to quash pending from various nonparty so we are literally right now in the middle of the throes of discovery in there there's a reason that we asked this court to expedite in april and we did everything we could to stay on schedule we didn't ask this court for a motion to stay pending appeal which i think we could have done and has been granted in other redistricting cases so i thought we you know we've done everything we could to stay on the schedule or try to stay on the schedule that the district court has set out and we would we would do our best do everything we could to comply with the current schedule if our intervention was timely granted ok i mean i know this is a it's a difficult case and i think our panel will try to get opinion out properly but i can't guarantee will be released in a week or two or that's one reason i'm asking that's all for a motion to stay in the district court we did not your honor i again we were trying to keep this case moving forward like the district court said like the pla and we were trying to not to create an undue delay through our intervention and that's part of the reason that we chose not to ask the district court for a stay and not to ask this court for a stay thank you thank you thank you both for your argument the case of the submitted