In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 22-3034 

MICHAEL J. BOST, et al., 

Plaintiffs-Appellees, 

v.

ILLINOIS STATE BOARD OF ELECTIONS 

and BERNADETTE MATTHEWS, in her capacity 

as the Executive Director of the Illinois State 

Board of Elections, 

Defendants-Appellees. 

APPEAL OF: DEMOCRATIC PARTY OF ILLINOIS, 

 Proposed Intervenor.

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 22-CV-2754 — John F. Kness, Judge. 

____________________ 

ARGUED APRIL 20, 2023 — DECIDED JULY 27, 2023 

____________________ 

Before EASTERBROOK, ROVNER, and ST. EVE, Circuit Judges. 

ST. EVE, Circuit Judge. Illinois law allows mail-in ballots

postmarked on or by Election Day to be counted if received 
2 No. 22-3034

up to two weeks after Election Day. The plaintiffs in this case 

contend that this extended ballot counting violates federal 

law and filed this suit to enjoin the practice. Within a month, 

the Democratic Party of Illinois (“DPI”) filed a motion to intervene in defense of the law, arguing for either intervention 

as of right or, in the alternative, permissive intervention. The 

district court denied DPI’s motion, and this appeal followed. 

The only question before us on interlocutory appeal is

whether the district court erred in denying DPI’s motion to 

intervene. Because DPI failed to point to any reason that the 

state’s representation of its interests “may be” inadequate, 

and because the district court’s focus on public time and resources over DPI’s individual interests was not an abuse of its 

discretion, we affirm. 

I. Background

Federal law establishes “[t]he Tuesday after the 1st Monday in November[] in every even numbered year” as “the day 

for the election.” 2 U.S.C. § 7. State Congressman Michael 

Bost, and two voters and former presidential electors, Laura 

Pollastrini and Susan Sweeney (collectively, “Plaintiffs”) contend that the Illinois statute allowing the counting of ballots 

received after Election Day contravenes this federal requirement. See 10 ILCS § 5/19-8(c). Together, they filed this suit 

against the Illinois State Board of Elections (“the Board”), 

which is “responsible for supervising the administration of 

election laws throughout Illinois,” and Bernadette Matthews, 

in her official capacity as Executive Director of the Board. 

DPI became concerned about the impact of this suit on its 

work as a political organization and on the voting rights of its 

members. To protect these interests, DPI filed a motion in the 
No. 22-3034 3 

district court to intervene as a defendant under Federal Rule 

of Civil Procedure 24. In that motion, DPI maintained that it 

was entitled to intervention as of right or, in the alternative, 

that the district court should grant it permissive intervention. 

The district court denied the motion. First, the court found 

that DPI’s interests were adequately represented by the state’s 

defense of the statute and therefore denied its motion to intervene as of right. It next rejected DPI’s argument for permissive intervention, concluding that allowing another party to 

intervene would divert court time and resources from an already time-sensitive case. Nevertheless, the court allowed 

DPI to proceed as amicus curiae if it decided to do so. 

We now affirm, but take this opportunity to clarify again 

our standards for intervention as of right.

II. Analysis

“Because denial of a motion to intervene essentially ends 

the litigation for the movant, such orders are final and appealable.” State v. City of Chicago, 912 F.3d 979, 984 (7th Cir. 2019) 

(quoting Reich v. ABC/York-Estes Corp., 64 F.3d 316, 321 (7th 

Cir. 1995)). We consider first the arguments for intervention 

as of right and then those for permissive intervention.

A. Intervention as of Right

Rule 24(a)(2) requires the court to allow intervention if the 

would-be intervenor can prove: “(1) timely application; (2) an 

interest relating to the subject matter of the action; (3) potential impairment, as a practical matter, of that interest by the 

disposition of the action; and (4) lack of adequate representation of the interest by the existing parties to the action.” City 

of Chicago, 912 F.3d at 984 (cleaned up). We review these factors de novo, Driftless Area Land Conservancy v. Huebsch, 969 
4 No. 22-3034

F.3d 742, 746 (7th Cir. 2020), except for the timeliness factor, 

which we review for abuse of discretion. Cook Cnty., Illinois v. 

Texas, 37 F.4th 1335, 1341 (7th Cir. 2022), cert. denied sub nom. 

Texas v. Cook Cnty., 143 S. Ct. 565 (2023).

This case focuses on factors two and four of the test for 

intervention as of right: whether DPI has any interests in the 

subject matter of the litigation that warrant intervention and 

whether the board adequately represents those interests. We 

take each in turn.

1. Unique Interests

Intervention as of right requires a would-be intervenor to 

have a “direct, significant and legally protectable interest in 

the [subject] at issue in the lawsuit.” Keith v. Daley, 764 F.2d 

1265, 1268 (7th Cir. 1985). We have used the shorthand 

“unique,” Wisconsin Education Association Council v. Walker 

(“WEAC”), 705 F.3d 640, 658 (7th Cir. 2013), referenced by the 

district court, to require that the interest be “based on a right 

that belongs to the proposed intervenor rather than to an existing party in the suit.” See Planned Parenthood of Wisconsin, 

Inc. v. Kaul, 942 F.3d 793, 798 (7th Cir. 2019) (quoting Keith, 764 

F.2d at 1268 and clarifying our use of “unique”). But we have 

never required a right that belongs only to the proposed intervenor, or even a right that belongs to the proposed intervenor 

and not to the existing party. Properly understood, the 

“unique” interest requirement demands only that an interest 

belong to the would-be intervenor in its own right, rather than 

derived from the rights of an existing party. See id. at 806 

(Sykes, J., concurring). 

DPI points to two interests that warrant its intervention in 

the lawsuit: (1) an interest as an organization that would have
No. 22-3034 5 

to expend additional resources to “get out the vote,” should 

Illinois election law change; and (2) an associational interest 

on behalf of its members, Illinois voters whose mail-in ballots 

might not be counted, should the law change. Both satisfy our 

requirement for a “direct, significant and legally protectable 

interest.”1 Each interest belongs to DPI irrespective of the role 

of the Board. That is what our precedent requires: a personal 

stake that is not dependent on the interests of an existing 

party.2

1 We have held that this interest must be at least as significant as the 

injury required for Article III standing. Planned Parenthood, 942 F.3d at 798. 

Well-settled standing precedent supports both of DPI’s asserted interests. 

See Common Cause Indiana v. Lawson, 937 F.3d 944, 950 (7th Cir. 2019) (organizational interest) and Crawford v. Marion Cnty. Election Bd., 553 U.S. 

181, 188 n.7 (2008) (associational interest).

2 Indeed, tracing the “unique” term back to its initial use reveals exactly that: We first used the term in Keith as shorthand for an interest that 

is “based on a right that belongs to the proposed intervenor rather than to 

an existing party in the suit.” See Planned Parenthood, 942 F.3d at 798 (quoting Keith, 764 F.2d at 1268). Keith, in turn, took this requirement from our 

opinion in Wade v. Goldschmidt, 673 F.2d 182, 185 n.5 (7th Cir. 1982). Wade

quoted this proposition directly from a district court opinion, In re Penn 

Cent. Com. Paper Litig., 62 F.R.D. 341 (S.D.N.Y. 1974), aff'd sub nom. Shulman 

v. Goldman, Sachs, & Co., 515 F.2d 505 (2d Cir. 1975), which denied intervention to a party that sought to assert an interest exclusively derived 

from the existing defendant’s rights rather than its own. As one of our colleagues recently put it, “‘unique’ means an interest that is independent of

an existing party’s, not different from an existing party’s.” Planned 

Parenthood, 942 F.3d at 806 (Sykes, J., concurring). While a shared interest 

can satisfy the requirements for intervention, a wholly derivative interest 

cannot.
6 No. 22-3034

While the district court properly reached this conclusion 

as to DPI’s organizational interest, it erred in holding that 

DPI’s associational interest was not “unique” within the 

meaning of our caselaw. As the district court saw it, the problem was that “the State Board’s interest is in preserving the 

law for all Illinois voters, DPI Members and constituents included.” But again, an interest need not belong only to the applicant for intervention to be “unique” as we have used it. To 

the contrary, while DPI and the Board each have an interest 

in representing some of the same voters, it is because DPI’s

interest is not dependent on the Board’s that DPI’s associational interest is “unique” and passes the first hurdle of our 

intervention analysis.

2. Adequate Representation

We turn next to the question of whether DPI’s two interests are adequately represented by the Board. The burden is 

on DPI to show that its interests are not adequately represented. Planned Parenthood, 942 F.3d at 797. 

a. Tiered Tests for Adequacy

Our case law recognizes that some litigants are better 

suited to represent the interests of third parties than others. 

Accordingly, we apply three different standards for showing 

inadequacy depending on the relationship between the party 

and the intervenor. Put simply, the stronger the relationship 

between the interests of the existing party and the interests of 

the party attempting to intervene, the more proof of inadequacy we require before allowing intervention.

Our default rule, which applies when there is no notable 

relationship between the existing party and the applicant for 

intervention, is a lenient one: the applicant for intervention 
No. 22-3034 7 

need only show “that representation of his interest [by the existing party] ‘may be’ inadequate.” Planned Parenthood, 942 

F.3d at 799 (emphasis added). We apply an intermediate 

standard if “the prospective intervenor and the named party 

have ‘the same goal.’” Id. (citations omitted). This is a higher 

bar, under which the applicant can only show inadequate representation by pointing to “some conflict” between itself and

the existing party. Id. (citations omitted). And finally, our 

strictest test applies “when the representative party ‘is a governmental body charged by law with protecting the interests 

of the proposed intervenors[.]’” Id. In those cases, because the 

existing party is legally required to represent the interests of 

the would-be intervenor, we presume it is an “adequate representative ‘unless there is a showing of gross negligence or 

bad faith.’” Id. (citations omitted). 

On appeal, it is uncontested that the Board (though a governmental body) is not “legally required to represent the interests of” DPI. This rules out our third and strictest adequacy 

test. The parties instead debate whether DPI and the Board 

share “the same goal,” warranting application of the intermediate standard, or if instead the default rule applies. 

b. When Do Two Parties Share “The Same Goal”? 

For the potential intervenor and the named party to have

“the same goal,” it is not enough that they seek the same outcome in the case. After all, “a prospective intervenor must intervene on one side of the ‘v.’ or the other and will have the 

same general goal as the party on that side. If that’s all it takes 

to defeat intervention, then intervention as of right will almost 

always fail.” Driftless, 969 F.3d 742, 748 (7th Cir. 2020). And so 

we “require[] a more discriminating comparison of the absentee’s interests and the interests of existing parties.” Id. 
8 No. 22-3034

When we compare the interests of a would-be intervenor 

and an existing party, we find that they have “the same goal” 

only where the interests are genuinely “identical.” Otherwise, 

we apply our lenient default rule.3 The analysis in Driftless is 

instructive. In that case, two environmental groups sued the 

Wisconsin Public Service Commission, which regulated public utilities in the state. Id. at 744. They sought to invalidate the 

permits granted to three private companies to develop land. 

Id. The permit-holding corporations moved to intervene as 

defendants, seeking to protect their own financial interests in 

the validity of the permits. Id. We found that the companies’ 

interests and “[t]he Commission’s interests and objectives 

overlap in certain respects but are importantly different. The 

Commission is a regulatory body, and its obligations are to 

the general public, not to the transmission companies or their 

investors.” Id. at 748. Furthermore, we noted that “the Commission regulates the transmission companies, it does not advocate for them or represent their interests.” Id. (emphasis in 

original). With these two key differences, the Commission 

3 This broad application of the lenient default rule is supported elsewhere in our caselaw. See WEAC, 705 F.3d 640, 659 (applying the intermediate presumption where the goals were “exactly the same”); Driftless, 969 

F.3d at 747 (the intermediate standard applies only where interests are 

“identical”); Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 

101 F.3d 503, 508 (7th Cir. 1996) (requiring “identical” interests before presuming adequate representation, and then applying the intermediate rule 

because the existing party’s interests entirely subsumed the would-be intervenor’s interests). We note, however, that the Supreme Court in Berger v. 

North Carolina State Conference of the NAACP, called into question whether 

any presumption of adequate representation is appropriate. 142 S. Ct. 

2191, 2204 (2022). That is an issue for another day, as we apply the “minimal” default standard here, applying no presumption of adequacy at all.

Id.
No. 22-3034 9 

and the private companies did not have “identical” interests. 

They did not share “the same goal.” And so we applied our 

lenient default standard. Id. 

c. DPI and the Board Do Not Share “The Same Goal” 

The “discriminating comparison” of DPI’s two interests to 

the interests of the Board shows that they do not “share the 

same goal” for Rule 24 purposes. We begin with DPI’s interest 

as an organization: should 10 ILCS § 5/19-8(c) be enjoined, 

DPI would have to reallocate resources to properly educate 

voters on a change in law. Importantly, this interest does not 

overlap with the Board’s interests. Nothing in the record or in 

the briefing suggests that the Board is interested in DPI’s financial expenditures, the execution of DPI’s mission, or the 

elements of DPI’s work that will suffer if resources are diverted elsewhere. So while DPI and the Board each want the 

law upheld, the stakes for each of them are different.

Similarly, DPI’s associational interest in representing its 

members is not identical to or completely included within the 

Board’s interests. Just as in Driftless, the Board is a “regulatory 

body, and its obligations are to the general public, not to” DPI 

or its members alone. These responsibilities mean it has a certain amount of authority over DPI—not that it represents 

DPI’s interests. So while the Board’s “interests and objectives 

overlap in certain respects” with DPI’s, in particular in their 

goal of having votes counted for fourteen days after Election 

Day as the district court noted, their interests are also 
10 No. 22-3034

“importantly different.” Driftless, 969 F.3d at 748. This ultimately leads us to the application of the default rule.4

d. Applying the Default Rule

Under the default rule, “the applicant [must] show[] that 

representation of his interest ‘may be’ inadequate,” before he 

is granted intervention as of right. Planned Parenthood, 942 

F.3d at 799 (quoting Trbovich v. United Mine Workers of Am., 

404 U.S. 528, 538 n.10 (1972)). This burden is “minimal,” Ligas 

ex rel. Foster v. Maram, 478 F.3d 771, 774 (7th Cir. 2007), but it 

is not nonexistent. The lenient default standard is satisfied 

when the named party fails to make an argument before the 

trial court that would further the intervenor’s interests. See 

Berger v. N. Carolina State Conf. of the NAACP, 142 S. Ct. 2191, 

2205 (2022) (finding that representation was inadequate because of the existing party’s failure to offer evidence in response to a motion for preliminary injunction and refusal to 

seek a stay of that injunction, both adverse to the litigation 

strategy sought by the would-be intervenors); City of Chicago 

v. Fed. Emergency Mgmt. Agency (“FEMA”), 660 F.3d 980, 985 

(7th Cir. 2011); Reich, 64 F.3d at 323; Trbovich, 404 U.S. at 538–

39 (noting risk of inadequate representation of a would-be intervenor where the interests of the existing party “may not always dictate precisely the same approach to the conduct of 

the litigation”). Similarly, when the existing party declines to 

appeal a ruling that the intervenor wants to appeal, the lenient 

4 The district court applied the intermediate rule because “[b]oth DPI 

and the State Board seek ... to have timely-cast ballots counted for up to 

14 days following Election Day.” This is simply saying that they each want 

the law upheld. This kind of general similarity is insufficient to warrant 

application of the intermediate rule. Driftless, 969 F.3d at 748. 
No. 22-3034 11 

default rule is satisfied. See Flying J, Inc. v. Van Hollen, 578 F.3d 

569, 572 (7th Cir. 2009). And in FEMA, 660 F.3d at 985, we suggested—although we did not decide—that proposing a potential conflict of interest in future settlement negotiations was 

enough to make a showing of inadequacy under the default 

rule. 

DPI’s briefing points to nothing to suggest that the Board’s 

representation “may be” inadequate.5 DPI does not point to 

any arguments that it would make that the Board has not already made.6 See FEMA, 660 F.3d at 985; Flying J., 578 F.3d at 

572. And though DPI cites many out-of-circuit cases for the 

proposition that even hypothetical conflicts are enough under 

the default standard, DPI has not proposed even a possible 

conflict between itself and the Board. It is hard to imagine 

how we could hold that there “may be” a conflict if DPI itself 

cannot point to one. 

DPI’s sole argument for inadequate representation is that 

its interests diverge with the Board’s. But the comparison of 

interests determines which of the three adequacy tests applies. This comparison alone cannot also make the showing 

5 DPI contends that Plaintiffs waived any argument that DPI did not 

meet the burden under the default rule by failing to develop the argument 

in their response brief. The record shows otherwise—Plaintiffs specifically 

addressed this argument. And at any rate, our review is de novo, and the 

burden is on DPI to make the minimal showing required under the default 

standard to show inadequacy and warrant intervention as of right.

6 At oral argument, DPI pointed for the first time to one potential difference between its briefing below and the Board’s. As laid out above, that 

might be enough to meet the lenient default standard. But by failing to 

raise this in its briefing, DPI has waived it on appeal. Wonsey v. City of 

Chicago, 940 F.3d 394, 399 (7th Cir. 2019). 
12 No. 22-3034

required under the default rule to prove inadequacy. If that 

were the case, then the default rule would simply be that intervention as of right is automatic. That has never been our 

law.

Without any showing of conflict—potential or otherwise—DPI has failed to carry its burden and is not entitled to 

intervention as of right.

B. Permissive Intervention

We turn finally to the issue of permissive intervention. 

Rule 24(b)(1)(B) gives the district court the power to allow anyone to intervene who “has a claim or defense that shares 

with the main action a common question of law or fact.” 

Whether to allow permissive intervention is a highly discretionary decision. “[U]nlike the more mechanical elements of 

intervention as of right, it leaves the district court with ample 

authority to manage the litigation before it.” Planned 

Parenthood, 942 F.3d at 803. Because the only required considerations by the district court are undue delay and prejudice to 

the rights of the original parties, “reversal of a district court's 

denial of permissive intervention is a very rare bird indeed[.]” 

Id. (cleaned up). We review for abuse of discretion. Id. 

There are many sound reasons to deny a motion for permissive intervention. We have noted in the past that adding 

parties is not costless, and time is not the only payment: 

Increasing the number of parties to a suit can make the 

suit unwieldy. ... An intervenor acquires the rights of 

a party. He can continue the litigation even if the party 

on whose side he intervened is eager to settle. This 

blocking right is appropriate if that party cannot be 
No. 22-3034 13 

considered an adequate representative of the intervenor’s interests, but not otherwise.

Solid Waste, 101 F.3d at 508. 

Here, the district court denied permissive intervention for 

exactly those reasons—because it would use up the court’s 

time and resources; because this is an election-law case that 

needs to be streamlined and decided quickly; and because 

DPI’s legal interests and arguments are closely aligned with 

those of the Board, meaning DPI’s addition as a party would 

add little substance.

DPI pushes back on this concern about court time and resources, insisting that “by this standard, the court would 

never grant permissive intervention,” because an additional 

party will always require some extra work. That misses the 

point—if court resources were the only factor, a district court 

could not use that to deny every motion for permissive intervention. But that is not the case here. The district court 

weighed the cost of diverting its resources against the minimal value DPI offered as a party—explaining that DPI’s arguments varied very little from those made by the Board. That 

kind of weighing is squarely within the discretion of the district court and we find no abuse in its denial of permissive 

intervention.

III. Conclusion

The district court’s conclusion that intervention as of right

was not warranted was correct, as DPI made no showing that 

the Board’s representation of its interests “may be” inadequate. And the district court’s reliance on reasonable factors 

to deny the motion for permissive intervention was well 

within its discretion. That does not preclude DPI from 
14 No. 22-3034

proceeding as amicus curiae, as the district court suggested, 

or from filing another motion, should a conflict arise. But until 

such a showing as to inadequate representation can be made, 

the judgment of the district court is

AFFIRMED. 
No. 22-3034 15 

EASTERBROOK, Circuit Judge, concurring. My colleagues accurately apply this circuit’s norms for evaluating attempts to 

intervene as of right, so I join the court’s opinion. But I doubt 

that this circuit’s standards are appropriate, so I add a few 

additional words.

The governing rule is Fed. R. Civ. P. 24(a)(2), which says 

that a district court must allow someone to intervene when 

that person

claims an interest relating to the property or transaction that is the 

subject of the action, and is so situated that disposing of the action 

may as a practical matter impair or impede the movant’s ability 

to protect its interest, unless existing parties adequately represent 

that interest.

Notice the difference between this language and the criteria 

that appear throughout the court’s opinion. Rule 24 does not 

mention tiers of justification or whether any given interest is 

unique. This court has invented those additional standards, a 

process to which my colleagues advert at page 5 n.2.

If the need to search for unique interests, or the multiple 

tiers of justification, came from the Supreme Court, we would 

be obliged to conform. As far as I can see, however, the Justices have not told us to use the approach that now prevails in 

this circuit. It can’t be traced to the text of Rule 24 or to the 

Committee Notes on that text. Nor does it have the support of 

scholarly sources. It is homegrown and lacks any apparent 

provenance.

Courts should not add layers of complexity to the Federal 

Rules. Legal texts sometimes set out complex rules, but to increase the complexity of a simple rule is unwarranted. Complexity adds to delay and expense, neither of which promotes 

justice.
16 No. 22-3034 

Under the text of Rule 24(a)(2), the Democratic Party is entitled to intervene unless existing parties—here the State 

Board of Elections and its Executive Director—adequately 

represent its interest. The Rule does not ask whether the 

Board and the Party have the same interest, a blind alley into 

which some of this court’s decisions deflect attention. The 

Board’s interest is in defending and enforcing state law, while 

the Party’s interest lies in using that law for the benefit of its 

candidates and members. But if the Board vigorously defends 

the statutes, that defense protects the Party’s interest as well.

By the Party’s lights, any private person with a concrete 

interest at stake can intervene in every suit against a public 

official, because the official’s interest inevitably diverges from 

the private interest. Intervenors could number in the dozens, 

making discovery and settlement difficult if not impossible. 

Delay and expense would be sure to rise. Far better to apply 

Rule 24 as written and ask whether the original defendants 

“adequately represent” the putative intervenor’s interests. If 

the answer is yes, then people potentially affected by the judicial decision can explain their circumstances (unique or not) 

and present their own arguments in briefs as amici curiae, allowing them to be heard without complicating management 

of the litigation.

Public officials’ defense of a statute at the start of a suit 

does not prevent them from changing course. Cameron v. 

EMW Women’s Surgical Center, P.S.C., 142 S. Ct. 1002 (2022), 

holds that intervention becomes proper if the defendants 

drop or impair their support of the law. But the Democratic 

Party does not contend that the two public officials named as 

defendants have done that or are likely to do so. Whatever 

ambiguity lurks in the word “adequately”—what happens, 
No. 22-3034 17

for example, if the defendants concede the plaintiffs’ main 

contentions and offer only weak fallback arguments?—need 

not concern us. Everyone agrees that the public officials’ defense in this suit is vigorous rather than a façade. It follows 

that the Party’s appropriate role is as amicus curiae.