UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KIRK NIELSEN, MORGAN 

OUTLAW, REVEL LUBIN, FELICIA 

BRUCE, BARBARA DEVANE, RAY 

DAVIS, DONESA JACKSON, 

ALIANZA FOR PROGRESS, INC., 

FLORIDA ALLIANCE FOR 

RETIRED AMERICANS, INC., and 

PRIORITIES USA, 

Plaintiffs,

v.

RON DESANTIS, in his official 

capacity as Florida Governor, et al,

Defendants.

Case No. 4:20-cv-236-RH-MJF

PLAINTIFFS’ RESPONSE IN OPPOSITION TO REPUBLICAN 

ORGANIZATIONS’ MOTION TO INTERVENE AS DEFENDANTS

I. INTRODUCTION

There are 138 Defendants in this action. Three more will add nothing except 

more papers for this Court’s review, more discovery for the parties, more motions 

to respond to, and more time spent in trial, in hearings, and in conferences

rehashing points other Defendants have already made. The Republican National 

Committee, National Republican Congressional Committee, and the Republican 

Party of Florida (collectively “Proposed Intervenors”) seek to protect interests that 

are already well-represented in this case. Their intervention will only lead to delays 

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and prejudice to the existing parties while bringing nothing of substance to this

litigation.

Denial of Proposed Intervenors’ motion to intervene is supported by this 

Court’s decision in League of Women Voters of Florida v. Detzner, 283 F.R.D. 687 

(N.D. Fla. 2012) (Hinkle, J.). There, would-be intervenors sought permissive 

intervention in a challenge to Florida laws regulating voter-registration drives. This 

Court denied their motion, in part, because the intervenors sought “to advocate for 

a statute and rule they had no right to have enacted in the first place, and they seek 

to do so based only on what they say—without record support—will be the 

secondary effects of not upholding the statute and rule.” Id. at 689. So too here. 

Proposed Intervenors provide no record support to overcome the presumption of 

adequate representation. And they express concern over the secondary effects—

hypothetical “repercussions throughout the Eleventh Circuit,” ECF No. 54, at 9—

of not upholding the Challenged Provisions.

The motion to intervene, ECF No. 53, should be denied. In the alternative, 

Proposed Intervenors should seek leave to file amicus curiae briefs.

II. BACKGROUND

Plaintiffs are seven individual Florida voters and three organizations 

challenging Florida’s failure to provide prepaid postage (“Vote-by-Mail Postage 

Requirement”), its requirement that vote-by-mail ballots be received by 7 p.m. on 

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Election Day (“Election Day Receipt Deadline”), Fla. Stat. §§ 101.67(2), 

101.6103(2), 101.64, and its prohibition on the use of paid organizers to assist 

voters with collecting ballots (“Voter Assistance Ban”), Fla. Stat. § 104.0616 

(collectively, “Challenged Provisions”). ECF No. 37 ¶ 4. Defendants are Florida’s 

Governor, Secretary of State, Attorney General, the Florida Elections Canvassing 

Commission, and all 67 counties’ Supervisor of Elections and County Canvassing 

Boards, all sued in their official capacities. Id. ¶¶ 29–34. All Defendants are 

charged with overseeing, administering, and/or defending the Challenged 

Provisions.

On May 21, 2020, Proposed Intervenors filed a motion to intervene as a 

matter of right and, in the alternative, seek permissive intervention. ECF Nos. 53–

54. At the telephonic status conference held on May 22, this Court ordered 

Plaintiffs’ opposition to Proposed Intervenors’ motion be filed by May 27, the 

same day as a motion for preliminary injunction. Plaintiffs’ motion for preliminary 

injunction highlights the need for speedy resolution of this action in time for the 

2020 elections.

III. ARGUMENT

A. Proposed Intervenors fail to establish a right to intervene.

1. Legal standard under Rule 24(a)(2).

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This Court can grant a motion to intervene as a matter of right only if 

Proposed Intervenors satisfy all four required elements: (1) their application is 

timely; (2) they have an “interest relating to the property or transaction which is 

the subject of the action”; (3) they are “so situated that disposition of the action, as 

a practical matter, may impede or impair [their] ability to protect that interest”; and 

(4) their interests are “represented inadequately by the existing parties to the suit.” 

Stone v. First Union Corp., 371 F.3d 1305, 1308–09 (11th Cir. 2004) (quoting 

Worlds v. Dep’t of Health & Rehab. Servs., 929 F.2d 591, 593 (11th Cir. 1991)).

Adequate representation by the existing parties to the suit is presumed when 

an existing party seeks the same objectives as the proposed intervenors. Stone, 371 

F.3d at 1311 (citing Clark v. Putnam County, 168 F.3d 458, 461 (11th Cir. 1999); 

see also Fed. Sav. & Loan Ins. Corp. v. Falls Chase Special Taxing Dist., 983 F.2d 

211, 215 (11th Cir. 1993) (“This court will presume that a proposed intervenor’s 

interest is adequately represented when an existing party pursues the same ultimate 

objective as the party seeking intervention.”). To overcome the presumption, the 

proposed intervenors must come forward with some contrary evidence. Stone, 371 

F.3d at 1311; see also Clark, 168 F.3d at 461. If this proof is insufficient, a court 

will then “return[] to the general rule that adequate representation exists ‘[1] if no 

collusion is shown between the representative and an opposing party, [2] if the 

representative does not have or represent an interest adverse to the proposed 

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intervener, and [3] if the representative does not fail in fulfillment of his duty.’” 

Stone, 371 F.3d at 1311 (quoting Clark, 168 F.3d at 461).

Proposed Intervenors have the burden to show that all four elements for 

intervention as of right are met. See Chiles v. Thornburgh, 865 F.2d 1197, 1213

(11th Cir. 1989); see also United States v. City of Miami, 278 F.3d 1174, 1178 

(11th Cir. 2002). Here, they cannot because there are more than enough parties to 

adequately represent their interests.

2. The existing parties more than adequately represent Proposed 

Intervenors’ interests.

Defendants and Proposed Intervenors share the exact same goal: to defend

the laws that Plaintiffs are challenging. In their motion to intervene, Proposed 

Intervenors admit that they “wish to defend” and want to “maintain[] the status 

quo” of the Challenged Provisions. ECF No. 54, at 10–11. But this is precisely 

what Defendants are required to do under the Florida Constitution and Florida 

statutes. State officers are sworn to “defend the . . . Government of . . . the State of 

Florida.” Fla. Const. art. II § 5(b). The Secretary has a statutory duty to “[o]btain 

and maintain uniformity in the interpretation and implementation of the election 

laws.” Fla. Stat. § 97.012(1). The Attorney General has a statutory duty to 

“investigate and prosecute . . . any crime involving voter registration, voting, or 

candidate or issue petition activities.” Fla. Stat. § 16.56(1)(a), (12). And the 

Governor “shall take care that the laws be faithfully executed.” Fla. Const. art. IV 

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§ 1(a). Proposed Intervenors’ “wish to defend” the Challenged Provisions is 

adequately represented by Defendants in the exercise of their duties. ECF No. 54, 

at 10.

The presumption of adequate representation applies with full force where the 

proposed intervenor is a political party or candidate, as illustrated by Daggett v. 

Comm’n on Gov’t Ethics & Elec. Practices, 172 F.3d 104 (1st Cir. 1999). There, 

the Libertarian Party of Maine and other plaintiffs challenged the constitutionality 

of the Maine Clean Elections Act. Several candidates from other political parties 

moved to intervene in defense of the Act, claiming that the defendant state election 

commission would not adequately represent their interests. Affirming the district 

court’s denial of intervention, the First Circuit emphasized that the movants had 

failed to rebut two converging presumptions: (1) “that adequate representation is 

presumed where the goals of the applicants are the same as those of the plaintiff or 

defendant”; and (2) “that the government in defending the validity of the statute is 

presumed to be representing adequately the interests of all citizens who support the 

statute.” Id. at 111. The First Circuit emphasized that the proposed candidateintervenors and the state commission shared the common goal of defending the 

Act, and that there was no “actual conflict of interests” between them. Id. at 112; 

see also Gonzalez v. Brewer, 485 F.3d 1041, 1051–52 (9th Cir. 2007) (proponent 

of voter initiative that enacted law requiring proof of citizenship to vote could not 

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intervene of right or permissively to defend the legality of the new law; the 

proposed intervenor failed to make the required “compelling showing” that the 

defendants “will not adequately represent their interests”); One Wis. Inst., Inc. v. 

Nichol, 310 F.R.D. 394, 398–99 (W.D. Wis. 2015) (Republican officeholders and 

candidates could not intervene as defendants to defend Wisconsin’s voter ID law, 

because they “shared the same goal” as the Government Accountability Board in 

defending the voter ID law, and proposed intervenors failed to show the Board’s 

defense was “negligent or undertaken in bad faith”) (citation omitted); Am. Ass’n 

of People with Disabilities v. Herrera, 257 F.R.D. 236, 258–59 (D.N.M. 2008) 

(denying Republican entities’ motions to intervene in voting rights case because 

party “does not assert any protectable interest that the [Secretary of State] is not 

already adequately protecting”).

To the extent Proposed Intervenors have any other hazy interests in this

action, they are insufficient to overcome the presumption of adequate 

representation that 138 Defendants already provide. Stone, 371 F.3d at 1311. For 

instance, Proposed Intervenors vaguely cite Purcell v. Gonzalez, 549 U.S. 1 

(2006), as standing for their supposed interest in preventing “confus[ing] voters 

and undermin[ing] confidence in the electoral process.” ECF No. 54, at 9. Again, 

these are interests that existing Defendants are adequately representing. After all,

Purcell itself was an appeal from government officials seeking relief from a 

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change to an election law before Election Day. 549 U.S. at 2. It is almost certain 

that the existing Defendants who actually oversee Florida’s election administration 

infrastructure will assert this interest, as they have in past cases before this Court. 

See, e.g., Democratic Exec. Comm. v. Detzner, 4:18-cv-520-MW-MJF, ECF No. 

22 at 18–19 (N.D. Fla. Nov. 10, 2018); League of Women Voters of Fla. v. 

Detzner, 4:18-cv-251-MW-CAS, ECF No. 43 at 27–28 (N.D. Fla. July 5, 2018).

Moreover, Proposed Intervenors’ argument that the “stare decisis effect” of 

an adverse opinion may impact their speculative “future interests” in maintaining 

apparently similar, unconstitutional statutes in other states—statutes not at issue 

here nor even identified—is not compelling. ECF No. 54, at 9. Besides being based 

on pure conjecture, this argument reflects a fundamental misunderstanding of stare 

decisis. It is “not an inexorable command.” State Oil v. Khan, 522 U.S. 3, 20 

(1997) (citation omitted). An injunction from this Court would not have the effect 

of automatically invalidating other statutes in other states, even if they bear some 

resemblance to the Challenged Provisions. 

To support this argument, Proposed Intervenors rely on inapposite authority. 

Chiles v. Thornburgh involved detainee intervenors facing a legitimate risk of their 

rights being impeded by stare decisis, because they “claim[ed] an interest in the 

very property and very transaction that [wa]s the subject of the main action.” 865 

F.2d at 1214. The resolution of Chiles without detainee intervenors could have 

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foreclosed, for example, any subsequent habeas corpus petitions from the 

detainees regarding the same legal issue and challenged policy. Nor does Stone v. 

First Union Corporation provide an apt comparison because all parties in that case 

agreed that the proposed intervenor plaintiffs had a legitimate interest justifying 

intervention. 371 F.3d at 1309. Even then, however, the Eleventh Circuit explained

that “the potential for negative stare decisis effects does not automatically grant” 

intervention as a matter of right. Id. at 1310. The court further explained that “one 

court’s ruling on whether the bank’s policy, as a matter of law, was in violation of 

the ADEA could influence later suits” challenging the same bank’s policy. Id.

Here, in comparison, Proposed Intervenors only point to the vague possibility that, 

should Plaintiffs prevail, this Court’s ruling “could have repercussions throughout 

the Eleventh Circuit.” ECF No. 54, at 9. There is little risk that this Court enjoining 

the Challenge Provisions could influence later suits challenging these laws because 

they will have already been enjoined. Thus, Proposed Intervenors’ interest is based 

on speculative harm in other states based on other statutes. This distinction 

conveniently ignores that challenging similar statutes in other states is different 

from challenging the same policy, as was at issue in Stone.

Finally, the Secretary of State is already well-represented by counsel who 

have zealously defended the interests of the Republican Party in voting litigation. 

See, e.g., League of Women Voters of Fla. v. Detzner, 172 So.3d 363 (Fla. 2015);

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Bainter v. League of Women Voters of Fla., 150 So. 3d 1115 (Fla. 2014); League 

of Women Voters of Fla. v. Fla. House of Representatives, 132 So.3d 135 (Fla. 

2013). Proposed Intervenors have failed to put forth any evidence suggesting that 

the representation by the able attorneys the Secretary—and the dozens of other 

Defendants—have engaged will be inadequate. The existing parties are pursuing 

the “same ultimate objective” as Proposed Intervenors—defending the Challenged 

Provisions. Fed. Sav. & Loan Ins. Corp., 983 F.3d at 215. Put simply, Proposed 

Intervenors have failed to overcome the presumption of adequate representation

and they are not entitled to intervene as a matter of right. Clark, 168 F.3d at 461.

B. Proposed Intervenors request for permissive intervention should be 

denied because intervention will delay and unduly prejudice Plaintiffs.

This Court should exercise its discretion to deny Proposed Intervenors’ 

request for permissive intervention. They are likely to delay adjudication of the 

rights of the original parties and they are unlikely to add anything material for the 

efficient resolution of this case.

1. Legal standard under Rule 24(b).

Courts have discretion to grant or deny a motion for permissive intervention. 

“In exercising its discretion, the court must consider whether the intervention will 

unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. 

Civ. P. 24(b)(1), (3). When evaluating a motion for permissive intervention, “a 

district court ‘can consider almost any factor rationally relevant.’” Bake House SB, 

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LLC v. City of Miami Beach, 2017 WL 2645760, at *6 (S.D. Fla. June 20, 2017)

(quoting Daggett, 172 F.3d at 113)). These factors include “‘the nature and extent 

of the intervenors’ interest’ and ‘whether the intervenors’ interests are adequately 

represented by other parties.’” Perry v. Proposition 8 Official Proponents, 587 

F.3d 947, 955 (9th Cir. 2009) (citation omitted); see also In re Pinchuk, No. 13-

MC-22857-GOODMAN, 2014 WL 12600728, at *6 (S.D. Fla. Jan. 27, 2014) 

(“[T]he issue of whether the intervenors’ interests are adequately represented by 

other parties . . . is also a factor to be balanced in a permissive intervention 

assessment.”).

2. Permissive intervention should be denied because intervention 

will unduly delay this action’s adjudication without adding 

anything of substance to the case.

Proposed Intervenors’ alternative argument seeking permissive intervention

is similarly unpersuasive. Their inclusion as a Defendant in this action would be of 

a “duplicative nature” and their “claims or interests will unduly delay the 

adjudication of the rights of the parties to this lawsuit and [are] unlikely to shed 

any new light on the constitutional issues in this case.” Wollschlaeger v. Farmer, 

No. 11-22026-Civ-COOKE/TURNOFF, 2011 WL 13100241, at *3 (S.D. Fla. July 

11, 2011). As discussed above, Proposed Intervenors seek to intervene to defend 

the Challenged Provisions—yet dozens of Defendants are already charged with 

this very duty. Courts have time and again denied permissive intervention when 

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would-be intervenors bring nothing else to the table when their interests are 

already represented by parties—except a greater likelihood for delaying the 

adjudication of these urgent election issues. See, e.g., Lacasa v. Townsley, No. 12-

22432-CIV-ZLOCH, 2012 WL 13069998, at *2 (S.D. Fla. July 6, 2012) (denying 

permissive intervention where proposed intervenor’s interest “will be adequately 

represented by the existing Defendant” and permitting intervention “will only 

present a risk of delaying the adjudication of the case”); League of Women Voters 

of Fla., 283 F.R.D. at 689 (Hinkle, J.) (denying permissive intervention where the 

proposed intervenors sought only to defend “a statute and rule they had no right to 

have enacted in the first place” and “ha[d] no right to prevent others from 

conducting voter-registration drives” or “to make it harder for other qualified 

applicants to register to vote”); Wollschlaeger, 2011 WL 13100241, at *3.

Delays resulting from intervention are important factors for courts to 

consider, especially for time-sensitive voting rights cases. See Georgia v. U.S. 

Army Corps of Eng’rs, 302 F.3d 1242, 1250 (11th Cir. 2002) (recognizing 

permissive intervention is inappropriate when it “will not unduly prejudice or delay 

the adjudication of the rights of the original parties” (citing Walker v. Jim Dandy 

Co., 747 F.2d 1360, 1365 (11th Cir. 1984)); see also ManaSota-88, Inc. v. Tidwell, 

896 F.2d 1318, 1323 (11th Cir. 1990) (affirming denial of permissive intervention 

when intervention “would severely protract litigation”). This consolidated action 

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involves multiple plaintiffs and more than one hundred defendants proceeding at a 

rapid clip toward resolution in time for the 2020 elections, with a trial in just seven 

weeks. Proposed Intervenors will bring nothing to this litigation except “more 

issues to decide [and] more discovery requests[.]” South Carolina v. North 

Carolina, 558 U.S. 256, 287 (2010) (Roberts, C.J., concurring in part and 

dissenting in part). Nor do Proposed Intervenors have any interest in seeking 

expeditious resolution of the weighty issues before this Court. They admit to “a 

specific interest in maintaining the status quo” of the Challenged Provisions. ECF 

No. 54, at 11. It is in their interest to delay resolution as much as possible. 

On the other hand, delay will unduly prejudice Plaintiffs who seek speedy 

resolution of this litigation in time for elections that will be held mere months from 

now. This is why courts have denied motions for permissive intervention in voting 

rights disputes in order to protect the rights of the parties. See, e.g., Ansley v. 

Warren, No. 1:16cv54, 2016 WL 3647979, at *3 (W.D.N.C. July 7, 2016) 

(denying timely intervention motions by Republican state legislators because 

“allowing the Movants to intervene . . . would needlessly prolong and complicate 

this litigation, including discovery, and delay the final resolution of this case”); 

One Wis. Inst. Inc., 310 F.R.D. at 399 (denying permissive intervention to 

Republican officials and voters because “the nature of this case requires a higherthan-usual commitment to a swift resolution”); Herrera, 257 F.R.D. at 259 

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(denying timely intervention motions by Republican entities seeking to defend 

restrictive election law because “intervention is likely to lead to delays that could 

prejudice the Plaintiff’s case and the Defendant” by increasing pleadings and 

discovery).

Finally, if Proposed Intervenors are permitted to join this action, they will be 

the only political parties present in this action. No entity of the state or national

Democratic Party is a party to this litigation. Plaintiffs are seven voters and three 

organizations, none of which are organs of the Democratic Party.1 Alianza for 

Progress is a nonpartisan organization that works to support progressive policies 

for Florida’s Puerto Rican and Hispanic populations. ECF No. 37 ¶ 22. The Florida 

Alliance for Retired Americans is a 501(c)(4) nonprofit social welfare organization 

that has a mission to ensure social and economic justice as well as full civil rights 

for retirees. Id. ¶ 26. And Priorities USA is a 501(c)(4) nonprofit advocacy and

service organization that has a mission of building a sustainable infrastructure to 

engage Americans in the progressive movement by running a permanent digital 

campaign to persuade and mobilize citizens around issues and elections. Id. ¶ 28.

None of these organizations has the specific mission of electing Democrats 

to office. Compare that to Proposed Intervenors’ overt partisan goals. The RNC 

“supports Republican candidates for public office at all levels, coordinates 

 

1 Nor are any of the Williams Plaintiffs entities of the state or national Democratic Party. See

1:20-cv-67, ECF No. 35 ¶¶ 11–21 (N.D. Fla. Apr. 20, 2020). 

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fundraising and election strategy, and develops and promotes the national 

Republican platform.” ECF No. 54, at 3. The NRCC is “dedicated solely to 

electing Republicans to the United States House of Representatives.” Id. (emphasis 

added). And the state Republican Party “supports the election of duly nominated 

Republican candidates through fundraising, voter registration, get-out-the-vote 

drives, and other campaign activities.” Id. at 3–4. None of the Plaintiffs’ interests 

or missions is in the same ballpark as Proposed Intervenors’ naked partisan 

interests in this action. See ECF No. 27 ¶¶ 22–28. 

C. Proposed Intervenors can be permitted to file amicus curiae briefs.

Proposed Intervenors need not be barred from participating in this case 

should this Court deny their motion to intervene. Nor are Plaintiffs advocating to 

silence the Republican Party from expressing their views on whatever benefits for 

Florida voters they can glean from the Challenged Provisions. Instead, Proposed 

Intervenors should seek leave to file an amicus brief for this Court’s benefit. This 

is a path this Court and many others have charted for parties whose intervention 

motions were denied. See League of Women Voters, 283 F.R.D. at 689; see also

Vazzo v. City of Tampa, No. 8:17-cv-2896-T-36AAS, 2018 WL 1629216, at *5 

(M.D. Fla. Mar. 15, 2018) (denying motion to permissively intervene and

permitting group to appear as amicus to provide the court with its “‘helpful,

alternative viewpoint’ without causing undue delay or prejudice to the adjudication

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of the original parties’ rights”). Wis. Educ. Ass’n Council v. Walker, 824 F. Supp. 

2d 856, 861 (W.D. Wis. 2012), aff’d in relevant part, 705 F.3d 640, 658-59 (7th 

Cir. 2013) (denying motions to intervene while allowing movants to file amicus 

briefs in support of state defendants). Plaintiffs do not oppose any motion from 

Proposed Intervenors seeking leave to file amici briefs.

IV. CONCLUSION

For these reasons, Proposed Intervenors’ Motion to Intervene as of right 

under Rule 24(a) should be denied. Furthermore, Plaintiffs respectfully request that 

the Court exercise its sound discretion in denying permissive intervention under 

Rule 24(b). Finally, Plaintiffs do not oppose Proposed Intervenors’ seeking leave 

to file amici briefs.

LOCAL RULE 7.1(F) CERTIFICATION

The undersigned certifies that this motion contains 3,552 words, within the 

requirements of Local Rule 7.1(F). 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on May 27, 2020, I electronically filed the 

foregoing with the Clerk of the Court by using the CM/ECF system, which will 

send a notice of electronic filing to all counsel of record.

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Dated: May 27, 2020 By: /s/ Frederick S. Wermuth

Frederick S. Wermuth

Florida Bar No.: 0184111

KING, BLACKWELL, ZEHNDER

& WERMUTH, P.A.

P.O. Box 1631

Orlando, FL 32802-1631

Telephone: (407) 422-2472

Facsimile: (407) 648-0161

fwermuth@kbzwlaw.com 

Marc E. Elias

John Devaney

Amanda R. Callais*

Zachary J. Newkirk*

Christina A. Ford

PERKINS COIE LLP

700 Thirteenth St., N.W., Suite 800

Washington, D.C. 20005-3960

Telephone: (202) 654-6200

Facsimile: (202) 654-9959

melias@perkinscoie.com

jdevaney@perkinscoie.com

acallais@perkinscoie.com

christinaford@perkinscoie.com

Lilian Timmermann**

PERKINS COIE LLP

1900 Sixteenth Street, Suite 1400

Denver, CO 80202

Telephone: (303) 291-2300

Facsimile: (303) 291-2400

ltimmermann@perkinscoie.com

Counsel for the Plaintiffs

* Pro Hac Vice motion pending

** Pro Hac Vice motion forthcoming

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