thank you very much it's good to have you here today thank you for bearing with us in these difficult times we appreciate your help in your cooperation we understand mr townson that you won't be able to see us so we completely ignore the general assembly's entrances and being free of the preclearance requirements of section three of the voting rights act in addition so it's mr thompson if you have a question this is just  obama yes your before you get they are going to have a question about standing and my question is based on the supreme court's town of chester case  you read that case to say that standing is not a requirement if the interview proposed intervener is seeking the same relief as the parties and if so in really regardless of the you continue and that you are seeking different relief from the defendants we are not seeking different relief your honor i think respectfully the key house to demonstrate standing and so as an intervenor a defendant intervene or not seeking to invoke the court's jurisdiction we believe but the hell clearly states that we did not have to demonstrate and i my dad that really makes sense because if you look at the supreme court's cases like a hearse a sign r or city of new york versus clinton where injunctive relief is sought if one plaintiff has standing the court does not require the having and this is sort of the flip side of that when you've got a plaintiff was standing in a defendant with standing than another defendant intervenor should not have to demonstrate standing i would hasten to add if we did need to demonstrate standing we could do so for two separate reasons number one we have an interest in being free and clear of section three of the budding rights act requirements and number two we've been designated the official agents of the state all  thirty two dollars b but language of that statute is unequivocal that says whenever and i really want to underline the word whenever there is a challenge the constitutionality or validity of an act of the general assembly my clients shall be necessary parties as agents for the state and shall have final decision making authority you will read the briefs of my friends for the n a c people for this court and you will not see a word about about your position with respect the state law it's not your position or is it please correct me if i'm wrong that that the state law provisions you're talking about sort of override the rule twenty four a requirements for one thing that is earlier is that state law and states have the absolute authority to designate whatever agent they want and here we are in doesn't if that's or it isn't so mr times i just want to bring you back to twenty four a requirements and in particular the requirement that the proposed intervenors interests not be adequately represented by the parties and is there any case in which a federal court has held that the attorney general of a state who has a statutory duty to defend a state and purports to be defending it is not providing adequate representation under rule twenty four dollars a has any federal court ever made what the seven circuit described as that extraordinary finding well your honor the case that comes to mind that's most on point would be trouble because there is the secretary of labor i understand it's not a state attorney general but it was an official governmental entity that was then a private party was allowed to come in and the court made reference to the planned parenthood case in the th circuit and i think that's distinguished over for reasons number one they have a different test in the th circuit  a bad favor gross negligence this court has never adopted that test number two the th circuit was concerned that under constant law there was no primacy there was no identification of who would have a final decision making authority hundred and twenty to thirty two six b mexico crystal clear we have final decision making authority in addition and this is a critical point on adequacy of representation because it goes to one of the two fundamental legal flaws in the district court's decision and there there was not a divergence of interest in this case it is unequivocal there is a divergence of interest for the following reason the state has an interest in the nuts and bolts logistics the state board of elections of elections that's a distinct interest we as the general assembly have a distinct interest in being free and clear up the creek clearance requirements of section break putting to the side the alleged shared interest call presumptions that i read about in th circuit law one is the presumption you know that you see probably most in the stewart case that seems to apply when you have a government  defendant and i think arguably you know a private proposed intervener but i want to shift to the other presumption that i think exists from virginia versus the westinghouse case in as you is it your position that that presumption that when the parties are say seeking the same ultimate relief applies to us you know your honor had st of all in the printing a case that you reference from divergence of interest if we look to the united guaranty we can see there are the bank and the owner of these certificates were trying to uncover before audit that had allegedly occurred if we look at drove it both of them were trying to undo the election and so really when you have different interest in truth it's he was that there were different interests the solicitor of labor had that it does that does that issue i want to make sure i understand in a little clique where we're we're we're making that point is is is your point that you are not seeking the same old relief because you have different interest or is adversity prong of they are of that test i'm trying to make sure where are where your arguments fit in in a linux only your honor it's an excellent question and i don't think the cases are uniform or you know particularly  that point i think the key analytical point is that for adequate representation if we can identify that divergence of interest regardless of which way which bucket you want to put it in then we satisfy that promise of the rule twenty four tests but i'd like to say if i may there's another reason independent reason we satisfy the adequacy of representation pran and that's because even with respect to their shared interest we have an overwhelming to where i started you're asking a federal court to say that the attorney general of a state is committing nonfeasance isn't violation of his statutory duties and that as the th circuit said does strike me as a quite extraordinary we quest and extraordinary find for us to make do we need to find nonfeasance in this case for you to prevail no your honor you don't i mean that's that we have two independent ways to win under adequa think the nonfeasance standard actually comes from the virginia case i think that that's the case that says if you seek the ultimate relief you must show adverse insurance collusion or n feasance and i know you can test whether or not that presumption the apply as to here but but i may be following up on judge harris is question if if it does apply  do you think you have shewn either adverse interest collusion or nonfeasance and if you could be very specific as to how you should do those three things i would appreciate it yes your honor i will be specific and we do meet that standard for five reasons and i'm going to give jay cites st the attorney general neglected to say one word unlikelihood of success on the merits and the parallel homes decision you can see this at  where they say not one more unlikelihood of success on the merits of the key claim of racial discrimination point two we have in a chart we have the governor of the state and jane a six hundred and thirty six openly siding with the plaintiffs in this case in trying to tear away part of the foundation of north carolina voter id law number three we have the attorney general in this case failing to make a dispositive legal arguments the n e a c p e sat on its hand for not make that defense five the next point is they have not built an adequate record they did not put in a single rebuttal x for or they did not oppose three of the five people and five we've got really extraordinary act of sabotage implacable political foes of this law and that is relevant and we see it manifesting itself when they have a dispositive legal response you know that my friends at the n a c p they'll tell you going to interrupt one last time i have a concern about this case which is that i mean election law cases are inevitably very political and as an article three court we try our hardest not to appear political or to get involved in political kinds of arguments and to have you arguing to us that we should indorse an understanding of this case in which the north carolina attorney general is engaged in sabotage is a from extraordinary act and two thousand and sixteen they are asking the court to blind itself to it the court doesn't need to go there but we do believe it's relevant i see i'm in my rebuttal time i'd like to reserve the time that i have if i met of course thank you litigation decision was correct and certainly not the use of discretion based on her actual observations of the parties conduct in this case there's a more fundamental reason why the proposed intervenors are not proper parties in this litigation seeking different relief but at least by emperor it suggests that's not the case with parties seeking the same relief the you agree with that reading or is there something or are you saying that they measure that this is like really the the place we need to focus but how do you square that with but then hill where the the court says listen if the state says that they will agents plural they get to pick agents plural and we would let them represent the state right at that i mean is your view that's just that's dicta and we should just ignore it no absolute absolutely not interested that's a separate question from whether whether all all intervenors need to have standing that's a question of whether or not this is a hypothetical if the statute does designate the proposed intervenors as an agent of the state the and you would agree they have standing under but their own hill if the statutes were about it it it seems to me the stewart vs huff case is kind of tough for you to on the presumption they are and that in that case it was a presumption  mr worth if you look at the case in to the extent that that's a political but they seem to both the district court and the court of appeals toll generals on the pleadings in the tourney generals doing this but there's a question about that level of vigor and i didn't see the district court address that question of whether the interest of the state in this law is really be represented although it's you know for sure being represented that seem like an issue to the court of appeals in stuart versus hoff is it important that that be considered by the district court the level of so it seems like the problem that i'm faced with is i understand some deference to the attorney general of the separate sovereign but there's also deference to a state statute passed by the legislature and so i'm placed in the position i think of balancing deference for one branch of a state against deference for another branch of the state in trying to evaluate those two and it strikes me here that whatever deference one gets comes it up the cost of the other and so it seems like the two deference issues fall away and we come back to the question that at its very base the actual text of rule twenty four of whether an adequate representation why don't not think about those two differences as simply counterweights that ball away you don't owe any deference to the state legislature because the you don't only deference to the represent the state and you that simply hasn't happened instead the as an agent of the state language mean is used to mean that the official is acting in his official capacity as opposed to as a private person and so here where when the when the president of the senate and the speaker of the house are acting as agents of the state it doesn't mean that they're representing state's interest in fact statutes you're specifically say that they're acting on behalf of the attorney general assembly so there are presenting the legislatures interests absolutely as that's absolutely separate from from the state's interests and nd of all that's but that's the only reason i mean you disagree with my reading of the statute not totally understand that i'm not trying to fight you on that but i'm trying to isolate that's why you think that the deference to the attorney general outweighs the deference to the legislature the statute is because you think i'm reading the statute wrong and i understand that but if you well to the attorney general and you're it's not just because the attorney general is representing the state it's because the attorney general is found by north carolina law to faithfully execute and the laws of north carolina and so it be absolutely unseemly for this court's you as a matter of its adequacy analysis to try credibly you know just pry into the to the mechanics of every single argument of every paper piled up every argument raised that's just it's not permitted under either stuart or the seven circuits decision in call all had a very similar statute i think that that statute does not go far did not go far enough go into some of the issues that i don't have the exact language in front of me but the district court i think determined that the statements of the governor and the would it look like that was more of a categorical legal determination and and if so i did you see the authority on which that was i certainly can imagine someone saying those factors have minimal weight or less weight than other factors but is there a basis for saying those factors shouldn't be considered at all quite think it was a related case doesn't seem wholly irrelevant i mean i'm not saying it's like the most important piece of evidence here but i find it odd that it's irrelevant when we're when we're asking this court to make  judgment to look at how they've done in a different case who just to be clear just biggs did look at the conduct and holmes in fact in her nd in her nd opinion she went through the various conduct in ohms and she addressed why if just kind of assuming argue and go i think you might be right about this that the proposed intervenors did have an order that was final for purposes of appellate review and after the st decision and they should have appealed that what if i thought that but i also thought that there was a bit of a notice problem because our law on what is final for purposes of appeal is kind of a mass and also there is no case law you know directly on point from this circuit in this you really needed to appeal that st order you know under normal circumstances if this were jurisdictional question we can sort of say well you should have appealed it but you weren't on notice so we're not going to hold you to that here but this is jurisdiction in support of the position is your honor and  makes clear whether to take these for our purposes well why don't we look at the the two thousand eight hundred berger case from the north council print court in the windsor decision from justice kennedy to say that representing the constitution ality of a law is not an exclusively executive function prosecuting under law may well be but i read those cases particularly windsor is saying that it's not an exclusively executive function so a lot lot how do you get exclusively executive then that would be permissible right it's so if nobody is there then the case is over right because it is exclusively executive then it cannot be done by the legislature if you do if you're trying to make a strict representation and that their presence that this court chose to just record says to do just that determination so i understand your position in fart is that the statute inactive by the north carolina legislature is unconstitutional i'm not making official argument your honor but in the concepts of this case where the sweeping argument being made here is that the legislative leaders to leaders ghoulish pleasure are are authorized to represent the constitutional questions and in fact it seems like you're saying is itself unconstitutional by designating these intervening plaintiffs as agents of the state that we're honored in the context of the  even if i thought the state law was not entirely clear in every particular it did it does seem just assuming to me and to express the sort of a strong policy of the state of north carolina that these proposed  should have some role in defending state statutes if i thought that is there anyone putting to one side the protected interests question should that affect anything else about the way i think about this case shouldn't affect the way i think about adequa seems like the legislature of north carolina and now this duly enacted law express the policy of the state that these proposed intervenors you know should have some role in defending state statutes and defending the state interests in its own statutes if i thought that i can see how that would relate to the protected interest analysis would it relate to anything else about this case would it affect at all the way i thought about adequacy of representation or maybe permissive intervention a policy state by the legislature that is would like to see these representatives involved in the defense of the litigation that is your position that have any bearing on adequacy that doesn't it in the cape to some extent the state's view through the legislature that to be adequately represented it needs all these players in the gang thank you your honor i think i have about four minutes of him so i'd like to just dive oh wonderful thank you ok great i just like to answer a few points that my friend mr cox made st of all on likelihood of success on the merits you will search this record and you will not find a word said by the state attorney general unlikelihood of success on the merits of that which relates to intentional racial discrimination that's the key felt account the plaintiffs in state court and in federal court have prevailed not one word was said about that number two on separation of powers there is a distinction in north carolina law between enforcing a law and defending against an attack on a law and we can see that and martin versus gorenberg in addition they want to maintain that there is a her medic ceiling between the branches under article a question and yes i actually want to pick up on some of the questions judge called obama's asking before about presumptions and what standard we're applying and when we talked about the call case added to seven circuit you said it one way you could distinguish it is that the  specific question is whether you think that opinion also is wrong when it says that you don't apply the standard under these circumstances that when a governmental official or body is legally required to represent the state interests then it's reasonable fair and consistent with the practical inquiry required by twenty four dollars a two to start from a presumption of adequate representation and there should be a heightened burden to show a concrete substantive conflict or an actual divergence of interests can you live with agents of the state but that we have a final decision making authority that was a big point that the she already added which is this is going to be difficult for us to know who is actually speaking on behalf of the state here in north carolina we don't have that problem  counsel yes he could could do the plaintiffs here have chosen to sue your clients so in other words the question is given the structure that north carolina  stop is the refusal to permit your intervention affectively given the plaintiffs the option to choose who is going to defend the law i think there's a strong argument that they were required to name u under rule nineteen as necessary parties given our role d under north carolina state law i guess they thought of ritual to sue us and they're fighting very hard to keep us out of the case for some reason now as i w the list of things you felt just indicated inadequacy and i think you indicated that one of those reasons was the failure of the state defendants to designate experts and yes  how is that looking for us that did not a i don't if i missed it apologize but it did not seem to be part of the record below and it seemed like the event where that you know  manifested itself was the policeman area injunction hearing which happened after the order so i assume i thought that was an important factor how how was that before us now in did you make that argument below to the district court your honor we did make it one of the district court because the court is back that it had not occurred i think there one of two ways the court could look at this st is as a predictive judgment putting oneself in the shoes of the district court when its nd decision was made you know what did it know and at that point what it knew was that the state attorney general had made the decision not to say one more i'm likely hood of success on the merits an intentional discrimination a mistake or case knew that the governor who has eighteen days improviser the responsibility for the state board of elections and openly sided by that point with any a c p in related litigation in the state of north carolina the other way to look at it and  the way i would add nobody has objected on the other side you are citing to these is as a confirming at analytic a look at events after or to see where the prediction that we say was plainly correct didn't come to pass and it's not just the failure to put in the experts it's the failure to make a dispositive legal argument under the quince kates there is no explanation or excuse for the attorney general not to objected to the  c sitting on its hands for nine months failing to move his preliminary injunction i would just like to say in closing that with respect to adequacy of representation this court does not need to get into whether there representation in this case thank you your arms thank thank you very much this is the part of our unit where we would normally come down and shake cans with counsel and although we can't do that today we are deeply grateful for your assistance today and for your willingness to hang with us through some technical difficulties mr johnson and we hope you stay well and healthy and are very thankful that you are here today thank you and we will now