ON REHEARING EN BANC

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-2273

NORTH CAROLINA STATE CONFERENCE OF THE NAACP; CHAPEL HILLCARRBORO NAACP; GREENSBORO NAACP; HIGH POINT NAACP; 

MOORE COUNTY NAACP; STOKES COUNTY BRANCH OF THE NAACP; 

WINSTON SALEM-FORSYTH COUNTY NAACP,

Plaintiffs – Appellees,

v.

PHILIP E. BERGER, in his official capacity as President Pro Tempore of the North 

Carolina Senate; TIMOTHY K. MOORE, in his official capacity as Speaker of the 

North Carolina House of Representatives,

Appellants,

and

KEN RAYMOND, in his official capacity as a member of the North Carolina State 

Board of Elections; STELLA ANDERSON, in her official capacity as Secretary of 

the North Carolina State Board of Elections; DAMON CIRCOSTA, in his official 

capacity as Chair of the North Carolina State Board of Elections; JEFFERSON 

CARMON III, in his official capacity as a member of the North Carolina State 

Board of Elections; DAVID C. BLACK, in his official capacity as a member of the 

North Carolina State Board of Elections,

Defendants – Appellees.

Appeal from the United States District Court for the Middle District of North Carolina at 

Greensboro. Loretta C. Biggs, District Judge. (1:18-cv-01034-LCB-LPA)
2

Argued: December 7, 2020 Decided: June 7, 2021

Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, AGEE, 

KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON, 

QUATTLEBAUM, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Harris wrote the majority opinion, in which Chief 

Judge Gregory and Judges Motz, King, Keenan, Wynn, Diaz, Floyd, and Thacker joined. 

Judge Wilkinson wrote a dissenting opinion. Judge Niemeyer wrote a dissenting opinion. 

Judge Quattlebaum wrote a dissenting opinion, in which Judges Niemeyer, Agee, 

Richardson, and Rushing joined.

ARGUED: Peter A. Patterson, COOPER & KIRK PLLC, Washington, D.C., for 

Appellants. Stephen K. Wirth, ARNOLD & PORTER KAYE SCHOLER LLP, 

Washington, D.C.; James Wellner Doggett, NORTH CAROLINA DEPARTMENT OF 

JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: David H. Thompson, 

Nicole J. Moss, Haley N. Proctor, Nicole Frazer Reaves, COOPER & KIRK PLLC, 

Washington, D.C.; Nathan A. Huff, PHELPS DUNBAR LLP, Raleigh, North Carolina, for 

Appellants. Joshua H. Stein, Attorney General, Olga E. Vysotskaya de Brito, Special 

Deputy Attorney General, Paul M. Cox, Special Deputy Attorney General, NORTH 

CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees 

Damon Circosta, Stella E. Anderson, David C. Black, Ken Raymond, and Jefferson 

Carmon III. Irving Joyner, Cary, North Carolina; Penda D. Hair, Washington, D.C., Caitlin 

A. Swain, FORWARD JUSTICE, Durham, North Carolina; John C. Ulin, Los Angeles, 

California, James W. Cooper, Jeremy C. Karpatkin, Andrew T. Tutt, Jacob Zionce, 

ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellees North 

Carolina State Conference of the NAACP, Chapel Hill-Carrboro NAACP, Greensboro 

NAACP, High Point NAACP, Moore County NAACP, Stokes County Branch of the 

NAACP, and Winston Salem-Forsyth County NAACP. 
3

PAMELA HARRIS, Circuit Judge:

In this appeal, we are asked to decide whether the leaders of the North Carolina 

House and Senate are entitled to intervene, on behalf of the State of North Carolina, in 

litigation over the constitutionality of the State’s voter-ID law. What makes this case 

unusual is that North Carolina’s Attorney General, appearing for the State Board of 

Elections, already is representing the State’s interest in the validity of that law, actively 

defending its constitutionality in both state and federal court. Nevertheless, the legislative 

leaders have moved twice before the district court to intervene so that they also can speak 

for the State, insisting that this case requires not one but two representatives of the State’s 

interest. Twice, the district court rejected these requests.

We see no abuse of discretion in that decision. At this point in the proceedings, the 

legislative leaders may assert only one interest in support of intervention: that of the State 

of North Carolina in defending its voter-ID law. It follows that they have a right to 

intervene under Rule 24(a)(2) of the Federal Rules of Civil Procedure only if a federal court 

first finds that the Attorney General is inadequately representing that same interest, in 

dereliction of his statutory duties – a finding that would be “extraordinary.” See Planned 

Parenthood of Wis., Inc. v. Kaul, 942 F.3d 793, 801 (7th Cir. 2019). After reviewing the 

district court’s careful evaluation of the Attorney General’s litigation conduct, we are 

convinced that the court did not abuse its discretion in declining to make that extraordinary 

finding here. Because that is enough to preclude intervention as of right under Rule 

24(a)(2), and because we similarly defer to the district court’s judgment denying 

permissive intervention under Rule 24(b), we affirm the district court.
4

I.

A.

In December 2018, the North Carolina General Assembly passed Senate Bill 824, 

“An Act to Implement the Constitutional Amendment Requiring Photographic 

Identification to Vote” (“S.B. 824”). After the House and Senate overrode a veto by North 

Carolina Governor Roy Asberry Cooper III, S.B. 824 was enacted on December 19, 2018, 

as North Carolina Session Law 2018-144. 

This new voter-ID law requires, subject to some exceptions, that individuals voting 

either in person or by absentee ballot present one of ten forms of authorized photographic 

identification. See 2018 N.C. Sess. Laws 144, § 1.2(a). To make that easier, the law 

charges county boards of elections with providing qualifying ID cards free of charge, and 

provides a mechanism for those without ID to vote by provisional ballot. See id. §§ 1.1(a), 

1.2(a). Along with these voter-ID provisions, S.B. 824 also expands the number of partisan

poll observers, as well as the grounds any individual voter can raise to challenge another 

voter’s ballot. See id. §§ 3.1(c), 3.3. 

On December 20, 2018 – the day after the law’s enactment – the North Carolina 

State Conference of the NAACP and several of the state’s local NAACP branches 

(collectively, “the NAACP”) filed suit challenging S.B. 824. The complaint named as 

defendants Governor Cooper and several members of the North Carolina State Board of 

Elections (collectively, “the State Board”), all in their official capacities. The NAACP 

alleged that S.B. 824 has a disparate impact on African American and Latino residents of 
5

North Carolina, resulting in “effective denial of the franchise and dilution of minority 

voting strength” in violation of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. J.A. 

30. The complaint also alleged that several provisions of S.B. 824 intentionally 

discriminate against African American and Latino voters in violation of the Fourteenth and 

Fifteenth Amendments of the U.S. Constitution. The NAACP requested declaratory relief 

and an injunction against the implementation of the challenged provisions. 

B.

In this appeal, we consider two successive requests by North Carolina’s legislative 

leaders to intervene to defend against the NAACP’s challenge to S.B. 824. The procedural 

history is complicated. But it also is necessary to understand the posture of this appeal and 

the resulting limits on our jurisdiction, so we describe it in some detail. 

1.

In January of 2019, Philip E. Berger, the President Pro Tempore of the North 

Carolina Senate, and Timothy K. Moore, the Speaker of the North Carolina House of 

Representatives, filed their first intervention motion, seeking to intervene on behalf of the 

North Carolina General Assembly to defend S.B. 824. The state legislative leaders – whom

we refer to as “the Leaders” – claimed entitlement to intervene as of right under Federal 

Rule of Civil Procedure 24(a)(2), and in the alternative asked for permission to intervene 

under Rule 24(b). The NAACP opposed the motion, and the Governor and the State Board, 

through the Attorney General as counsel, took no position. 

In this first motion, the Leaders purported to speak on behalf of the General 

Assembly, rather than the State of North Carolina as a whole. That status, the Leaders 
6

argued, gave them a protectable interest justifying intervention as of right under Rule 

24(a)(2). As the Leaders explained, a North Carolina statute, recently enacted, provides 

that they “jointly have standing to intervene on behalf of the General Assembly as a party 

in any judicial proceeding challenging a North Carolina statute,” N.C. Gen. Stat. § 1-

72.2(b) (emphasis added), and “request[s]” that federal courts permit participation by both

the State’s legislative and executive branches in cases challenging the validity of state law, 

id. § 1-72.2(a). According to the Leaders, the General Assembly’s “institutional interest 

in seeing that [its] enactments are not ‘nullified’” thus satisfied Rule 24(a)(2)’s interest 

requirement. J.A. 113–14 (quoting Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 

576 U.S. 787, 803 (2015)). 

Moreover, the Leaders continued, that interest was “not adequately represented” 

already by the existing defendants – the Governor and the State Board, through the 

Attorney General – for purposes of Rule 24(a)(2)’s adequacy prong. Pointing to past 

statements opposing voter-ID laws by the Governor and Attorney General, as well as their 

activity in litigation over previous voter-ID laws in North Carolina, the Leaders claimed 

that the defendants “cannot be trusted to defend S.B. 824 in the same, rigorous manner as 

Proposed Intervenors – and very well might not defend the law at all.” J.A. 117.

The district court denied the Leaders’ motion on June 3, 2019, finding that the

Leaders did not meet the requirements for either mandatory or permissive intervention. 

See N.C. State Conf. of the NAACP v. Cooper, 332 F.R.D. 161, 171, 173 (M.D.N.C. 2019)

(“NAACP I”). The court first rejected the NAACP’s threshold argument that the Leaders 

lacked Article III standing. Because the Leaders sought to intervene only as defendants, 
7

the court concluded, and were not themselves invoking the court’s jurisdiction, it was not 

incumbent on them to establish Article III standing. See id. at 165. Acknowledging that 

courts are divided on this question, the district court found no “Fourth Circuit case setting 

forth such a requirement” and so “decline[d] to impose” one itself. Id.

The court turned then to intervention as of right, for which a movant must 

demonstrate: “(1) an interest in the subject matter of the action; (2) that the protection of 

this interest would be impaired because of the action; and (3) that the applicant’s interest 

is not adequately represented by existing parties to the litigation.” Id. at 165 (quoting 

Teague v. Bakker, 931 F.2d 259, 260–61 (4th Cir. 1991)). The Leaders could not satisfy 

those requirements, the district court concluded, mostly because the existing defendants, 

through the Attorney General, already were actively defending S.B. 824. 

As to the interest prong, the court held that, at least while the Governor and the State 

Board remained in the case, the Leaders did not have a significantly protectable interest in 

likewise defending the statute’s legality. Id. at 168. The court distinguished cases in which 

state legislators were permitted to intervene in defense of a statute “[w]hen it became 

apparent that neither the [state] Attorney General nor the named defendants would defend 

the statute,” id. at 167 (quoting Karcher v. May, 484 U.S. 72, 75 (1987)); here, by contrast, 

the state defendants, represented by the Attorney General, already were defending against 

the NAACP’s challenge to S.B. 824. The court recognized North Carolina’s “public 

policy” in favor of intervention by the Leaders to represent the interests of the General 

Assembly, id. at 166–67 (quoting N.C. Gen. Stat. § 1-72.2(a)), but explained that 
8

intervention as of right under Rule 24(a)(2) remains subject to federal-law requirements, 

see id. at 167.

As to the adequacy prong, the district court held that because the Attorney General 

already was defending the lawsuit on behalf of the state defendants, the Leaders would be 

required to “mount a strong showing of inadequacy” to overcome a “presumption of 

adequate representation.” Id. at 169 (quoting Stuart v. Huff, 706 F.3d 345, 352 (4th Cir. 

2013)). The Leaders could not make that showing, the court concluded. The defendants 

already had moved to dismiss the NAACP’s complaint, and there was no record evidence 

suggesting that the Governor, the State Board, or the Attorney General had abdicated their

responsibility to defend the law. See id. at 169–71. 

The court also denied the Leaders’ request for permissive intervention under Federal 

Rule of Civil Procedure 24(b). Id. at 173. The intervention of additional defendants, the 

court found, would delay litigation of the case, “detract[ing] from, rather than enhanc[ing], 

the timely resolution, clarity, and focus” of the proceedings. Id. at 172. Moreover, the 

court found, intervention likely would prejudice the plaintiffs, requiring the NAACP to 

“address dueling defendants, purporting to all represent the interest of the State, along with 

their multiple litigation strategies.” Id.

The district court entered its denial of the Leaders’ motion without prejudice. Id. at 

173. Clarifying its disposition, the court indicated that it would entertain a renewed request 

for intervention “should it become apparent during the litigation” that the state defendants, 

through the Attorney General, “no longer intend to defend this lawsuit.” Id. Barring any 

such change in circumstances, however, the Leaders’ participation would be limited to 
9

amicus curiae briefs, which would allow the Leaders to bring to the court’s attention any 

“unique contention” or argument not raised by the Attorney General. Id.

The Leaders did not appeal the district court’s order denying their motion to 

intervene. 

2.

Instead, six weeks later, the Leaders filed their second, renewed motion for 

intervention, again seeking intervention both as of right and by permission. The Leaders 

acknowledged that the court already had denied those requests. But the court’s order, the 

Leaders believed, was “not necessarily its final word on the matter,” given its stated 

willingness to entertain a new motion if the Attorney General stopped defending the suit. 

J.A. 477. 

Much of the Leaders’ renewed case for intervention repeated arguments the district 

court already had rejected. But the Leaders also made two new points especially relevant

here. First, the Leaders claimed that a recent Supreme Court decision, Virginia House of 

Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019), had “clarified” the precise nature of the 

interests they sought to represent in litigation over S.B. 824. J.A. 485. In Bethune-Hill, 

the Leaders explained, the Supreme Court confirmed that a state may designate the 

legislature to serve as the state’s own agent in federal litigation; and in its state statutes, the 

Leaders continued, North Carolina had done just that, designating them, by virtue of their 

positions in the legislature, as representatives of the State of North Carolina’s interest in 

the validity and enforcement of its laws. The Leaders thus claimed, for the first time, to 

represent two different interests in defending S.B. 824: the distinct interest of the General 
10

Assembly, on which they had relied before, and now the interests of the State of North 

Carolina as well. 

Second, the Leaders contended that the contingency the district court had envisioned 

in its first order had come to pass, because months of litigation in the district court and 

parallel state proceedings had made clear that the Attorney General was not vigorously

defending S.B. 824. In the federal case, the Leaders argued, the Attorney General, though 

winning dismissal of the Governor from the case, had argued only for abstention on 

federalism grounds and failed to develop the factual record through expert reports. And in 

the state-court case, Holmes v. Moore, No. 18-CVS-15292 (N.C. Super. Ct.) – in which the

Leaders, too, were named as defendants – the Attorney General had moved to dismiss too 

few of the complaint’s counts and been insufficiently aggressive as to discovery and its 

opposition to a preliminary injunction. All told, the Leaders concluded, the Attorney 

General’s performance showed that he could not be trusted to defend S.B. 824, clearing 

what they called the “minimal” hurdle of Rule 24(a)(2)’s adequacy prong. J.A. 491 

(quoting Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972)).

Two months after this second motion to intervene, but before the district court had 

ruled on it, the Leaders sought to accelerate the process with a ruling from our court. On 

the theory that the district court had “de facto denied” their motion by not acting on it, the 

Leaders filed an interlocutory appeal and petitioned for a writ of mandamus. In October 

of 2019, we dismissed the appeal for lack of jurisdiction, given the absence of a ruling by 

the district court, and denied the mandamus petition. 
11

A month later, the district court denied the Leaders’ motion, finding that their 

renewed case for intervention was no more convincing than their first. N.C. State Conf. of 

the NAACP v. Cooper, No. 1:18CV1034, 2019 WL 5840845, at *1 (M.D.N.C. Nov. 7, 

2019) (“NAACP II”). Crucially for our purposes, the court refused to revisit arguments 

made by the Leaders in their first motion and rejected by the court in its first order. Because 

the Leaders had not timely appealed its prior order, the district court held, that order 

“remain[ed] undisturbed” and its rulings had become “the law of this case.” Id. at *1–2. 

The court’s decision thus focused on whether the Leaders had “presented evidence, newly 

available, that speaks to the narrow exception outlined in its prior order”: whether the 

Attorney General, on behalf of the State Board, had “in fact declined to defend” S.B. 824. 

Id. at *2. 

First, however, the district court briefly addressed the Supreme Court’s BethuneHill decision and reaffirmed its view that the Leaders had no protectable interest in 

defending S.B. 824 so long as the Attorney General was doing so. The court acknowledged

that under Bethune-Hill, North Carolina undoubtedly has the “prerogative to ‘designate 

agents to represent [it] in federal court.’” Id. at *2 n.3 (quoting Bethune-Hill, 139 S. Ct. at 

1951). But the district court found it “far from clear” that North Carolina law in fact had 

authorized the Leaders to defend the State’s interests in court alongside the State’s Attorney 

General – who was expressly charged with “appear[ing] for the State.” Id. (quoting N.C. 

Gen. Stat. § 114-2). So the question remained, the district court concluded, whether the 

Attorney General continued to provide an adequate defense of S.B. 824.
12

Surveying the new evidence cited by the Leaders, the district court determined that 

the State’s interests already were adequately represented by the State Board and the 

Attorney General, precluding intervention as of right under Rule 24(a)(2). In the federal 

court proceedings, the district court emphasized, the State Board consistently had denied 

any substantive allegation of unconstitutionality, had moved to dismiss the suit on 

federalism grounds, and had filed an “expansive” brief opposing the NAACP’s request for 

a preliminary injunction. Id. at *3. And the story in the Holmes state-court litigation – to 

the extent it was relevant to the adequacy of the Attorney General’s federal-court 

representation – was the same: At most, the Leaders had identified “strategic 

disagreements” with the Attorney General, whose approach “fell well within the range of 

reasonable litigation strategies.” Id. 

As for permissive intervention, the court found its earlier judgment prescient. Since 

its last order, the court noted, the Leaders had “prematurely” filed a renewed motion to 

intervene, improperly appealed before any denial had been entered, and unsuccessfully 

sought the “extraordinary remedy of mandamus.” Id. at *4. This litigation conduct 

confirmed that the Leaders’ participation as parties would “unnecessarily complicate and 

delay” the progress of the case, and the court found no basis for reversing its earlier denial 

of permissive intervention. Id.

3.

Immediately after this second order denying intervention – but five months after the 

first – the Leaders filed a notice of appeal to this court. On appeal, the NAACP continued

to oppose the Leaders’ efforts to intervene. The State Board, through the Attorney General,
13

again took no position on permissive intervention, but argued that intervention as of right 

is unnecessary because it is adequately representing any interest the Leaders may have in 

the case. 

In August of 2020, a panel of this court held that the district court abused its 

discretion in denying the Leaders’ renewed motion for intervention, vacated the district 

court’s order, and remanded for reconsideration of the Leaders’ request. N.C. State Conf. 

of the NAACP v. Berger, 970 F.3d 489 (4th Cir.), reh’g en banc granted, 825 F. App’x 122 

(4th Cir. 2020) (mem.). Upon petitions for rehearing by the NAACP and the State Board, 

we vacated the panel opinion and now consider the case en banc.

There is one final turn in the procedural history of this case. In December of 2019 

– while the Leaders’ appeal from the district court’s second order was pending – the district 

court ruled for the NAACP and preliminarily enjoined S.B. 824’s enforcement. See N.C. 

State Conf. of the NAACP v. Cooper, 430 F. Supp. 3d 15, 54 (M.D.N.C. 2019). The State 

Board, represented by the Attorney General, promptly appealed that decision, and we 

allowed the Leaders to intervene in that appeal. In December of 2020 – while the question 

of intervention was under en banc reconsideration – we ruled for the State Board, holding 

that the district court had abused its discretion in issuing the preliminary injunction. See

N.C. State Conf. of the NAACP v. Raymond, 981 F.3d 295, 311 (4th Cir. 2020). A district 

court trial on the merits, originally scheduled for January 2021, now has been postponed 

pending the resolution of this separate appeal regarding intervention. 
14

II.

We begin with the scope of our appellate jurisdiction. Given the course of 

proceedings in the district court, we conclude that we have power to review only those 

questions resolved in the district court’s second order denying intervention, as that is the 

only final order timely appealed to this court.

Subject to certain exceptions not applicable here, 28 U.S.C. § 1291 authorizes us to 

review only “final decisions of the district courts.” Microsoft Corp. v. Baker, 137 S. Ct. 

1702, 1707 (2017) (quoting 28 U.S.C. § 1291). For the purposes of this final-judgment 

rule, a “district court’s denial of a motion to intervene is ‘treated as a final judgment that 

is appealable.’” Sharp Farms v. Speaks, 917 F.3d 276, 289 (4th Cir. 2019) (quoting 

Bridges v. Dep’t of Md. State Police, 441 F.3d 197, 207 (4th Cir. 2006)). This designation 

makes sense: “[F]rom the perspective of a disappointed prospective intervenor, the denial 

of a motion to intervene is the end of the case,” even as proceedings continue in the district 

court with the original parties. Driftless Area Land Conservancy v. Huebsch, 969 F.3d 

742, 745 (7th Cir. 2020) (citation omitted). It follows that if a district court denies a motion 

to intervene, then a would-be intervenor must notice an appeal within 30 days of the entry 

of that final order. See 28 U.S.C. § 2107(a). If, on the other hand, no timely appeal is 

taken, then we will be left without jurisdiction to review the court’s order. See Sharp 

Farms, 917 F.3d at 289 (noting that failure to timely appeal denial of intervention is 

jurisdictional).

 That is just what happened here. The district court denied the Leaders’ first motion 

to intervene on June 3, 2019. The Leaders did not appeal that order within 30 days of its 
15

entry, so the district court’s order became “final and conclusive” when the time to appeal 

expired. See Old Dominion Tr. Co. v. First Nat’l Bank of Oxford, 260 F. 22, 28 (4th Cir. 

1919); see also 15B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal 

Practice & Procedure Jurisdiction § 3914.18 (2d ed. Oct. 2020 update) (“Failure to appeal 

denial of intervention upon entry of the order may forfeit the right to review . . . .”). And, 

critically, the Leaders’ second and renewed motion to intervene does not save their failure 

to appeal the denial of the first. As appellate courts have recognized, “once a conclusive 

resolution has been reached[,] . . . a renewed motion for the same relief, or a belated request 

for reconsideration, does not reopen the time for appeal.” Fairley v. Fermaint, 482 F.3d 

897, 901 (7th Cir. 2007); see also United States v. Boone, 801 F. App’x 897, 904 (4th Cir. 

2020) (Harris, J., concurring). 

The Leaders dispute one and only one step in this straightforward analysis: 

According to the Leaders, even if orders denying intervention generally are final and 

appealable, the district court’s first order was not, as it was entered “without prejudice.” 

See NAACP I, 332 F.R.D. at 173. As the Leaders understand it, that without-prejudice 

dismissal expressly left open the possibility of further litigation, indicating that an 

amendment could cure any defect in their motion. It follows, they argue, that the district 

court’s denial of intervention was not a final order under our case law – which means that 

they had neither the ability nor the obligation to take an immediate appeal.

That argument misreads both our precedent and the district court’s order. We have 

dealt extensively with the finality of without-prejudice dismissals of complaints, and we 

agree with the Leaders that we may analogize to those cases here. But what those cases 
16

stand for is the proposition that “[d]ismissals without prejudice . . . are not unambiguously 

non-final orders.” Bing v. Brivo Sys., LLC, 959 F.3d 605, 612 (4th Cir. 2020) (emphasis 

added). Instead, we examine the finality and appealability of a without-prejudice dismissal 

“based on the specific facts of the case,” considering such factors as whether amendment 

could cure the defects on which dismissal rests, what the “bottom-line effect” of the ruling

is, and whether the district court “signaled that it was finished” with the issues before it. 

Id. at 610, 612 (quoting Chao v. Rivendell Woods, Inc., 415 F.3d 342, 345 (4th Cir. 2005)). 

Applied to the “specific facts of [this] case,” id. at 610, those factors point decisively 

to a final and immediately appealable order. The district court “signaled that it was 

finished” with the merits of the Leaders’ first request for intervention, notwithstanding its 

styling of the denial as “without prejudice.” As the court itself later explained, the window 

left open in its initial order was a “narrow” one, available only if the State Board and 

Attorney General “in fact declined to defend” S.B. 824 in the future. NAACP II, 2019 WL 

5840845, at *2. Because that contingency had not yet – and might never – come to pass, 

the Leaders could not then amend or correct their motion to change the result. The bottomline effect of the court’s ruling was clear: The Leaders were not entitled to intervene under 

then-current circumstances. Under our precedent, that determination was final, and if the 

Leaders disagreed, then they were required to take a timely appeal.

That conclusion is consistent with the approach other circuits have taken in

procedurally similar intervention appeals. The Seventh Circuit, for instance, recently 

confronted an order much like the one at issue here: a without-prejudice denial of a motion 

to intervene that expressly invited a renewed request if a “concrete, substantive conflict or 
17

actual divergence of interests should emerge.” Driftless Area Land Conservancy, 969 F.3d 

at 745. That denial, the court held, was an immediately appealable final order – “without 

prejudice” notwithstanding. Id. “The possibility of a new motion if circumstances change

does not block an immediate appeal,” the court explained, because “[t]he contingency that 

the judge has in mind might never arise.” Id. 

The Leaders rely on a different and earlier Seventh Circuit case, United States v. 

City of Milwaukee, 144 F.3d 524 (1998), in which the court deemed non-final a district 

court’s without-prejudice denial of intervention. But that case, the Seventh Circuit 

explained in Driftless Area Land Conservancy, was very different: There, the denial rested 

on a “purely technical error” in the intervention motion – the failure to include a proposed 

pleading – that could be cured immediately. See 969 F.3d at 746 (discussing Milwaukee, 

144 F.3d at 527–30). Cases like this one, by contrast – in which a district court denies 

intervention on the merits, but “without prejudice” in recognition that circumstances might 

change – are “not remotely analogous.” Id. What matters for finality is not “the incantation 

of the words ‘without prejudice,’” but “that the judge addressed the substantive merits of 

the intervention motion,” not just a procedural flaw, and “conclusively denied” the motion. 

Id. at 745 (citation omitted).

And, again, the same rule holds even if – as here – would-be intervenors file a 

renewed motion to intervene, and then timely appeal the denial of that second motion. 

Under those circumstances, too, courts will not consider the merits of the initial denial, 

because that denial was not timely appealed. See EPA v. City of Green Forest, 921 F.2d 

1394, 1401 (8th Cir. 1990) (concluding that court lacked jurisdiction over reasoning in 
18

earlier order denying intervention because “the notice of appeal from the denial of the first 

motion to intervene was not until after nearly sixteen months”); Whitewood v. Sec’y Pa.

Dep’t of Health, 621 F. App’x 141, 144 (3d Cir. 2015) (reviewing only order denying 

amended motion to intervene). As the Eighth Circuit cogently explained, “[t]he denial of 

a second motion to intervene covering the same grounds as the first motion to intervene 

does not reset the clock for purposes of an appeal; holding otherwise would defeat the 

statutory timeliness requirement.” Smith v. SEECO, Inc., 922 F.3d 398, 404 (2019). 

It is true, as the Leaders note, that there are some cases in which courts will review 

the merits of an initial denial of intervention, even when the putative intervenors have 

appealed only the denial of a second motion. But in each of those cases, the district court’s 

second order denying intervention – the one appealed – itself made a “fresh evaluation” of 

the original intervention motion, so that the first order’s reasoning and rulings merged into 

the second. See Hodgson v. United Mine Workers of Am., 473 F.2d 118, 126–27 (D.C. Cir. 

1972) (explaining that district court had exercised discretion to make a “fresh evaluation 

of the intervention application”); see also, e.g., Calvert Fire Ins. Co. v. Environs Dev.

Corp., 601 F.2d 851, 857 n.3 (5th Cir. 1979) (explaining that district court had treated 

second intervention request as motion for reconsideration). Here, contrary to the Leaders’ 

argument, there has been no wholesale merger. Instead, the district court expressly 

declined to reconsider its earlier analysis, evaluating only whether the Attorney General

had become an inadequate representative of the Leaders’ purported interest in the defense 

of S.B. 824. 
19

Our jurisdiction in this appeal is correspondingly limited. We “start[] with the 

proposition that the original, unappealed order was correct when entered.” Devs. Sur. & 

Indem. Co. v. Archer W. Contractors, LLC, 809 F. App’x 661, 664 (11th Cir. 2020) 

(quoting Birmingham Fire Fighters Ass’n 117 v. Jefferson County, 290 F.3d 1250, 1254 

(11th Cir. 2002)). That means that we may not consider, on the Leaders’ appeal from the 

district court’s second order, issues put to rest in its first. Specifically, we cannot now 

review the Leaders’ claim that they have a “protectable interest” under Rule 24(a)(2) in 

representing the General Assembly’s “institutional interest” in enforcement of S.B. 824. 

The district court rejected that argument in its first order denying intervention, see NAACP 

I, 332 F.R.D. at 168; that determination was not appealed, and so the Leaders may not 

advance that interest here. Also outside the scope of our review is the related question of 

whether the Leaders must establish Article III standing to represent any purported interest 

under Rule 24(a)(2). See Flying J, Inc. v. Van Hollen, 578 F.3d 569, 571–72 (7th Cir. 

2009) (discussing relationship between standing and Rule 24(a)(2)’s interest prong). The 

district court concluded, again in its first order, that because the Leaders sought to intervene 

as defendants rather than plaintiffs, they would not be held to Article III’s requirements. 

See NAACP I, 332 F.R.D. at 165; see also Bethune-Hill, 139 S. Ct. at 1951 (suggesting that 

legislature participating in litigation only to defend state statute does not “invok[e] a court’s 
20

jurisdiction” and therefore need not demonstrate standing). And again, on appeal of the 

district court’s second order, we treat that determination as conclusive.

1

 

In sum, our jurisdiction over this appeal is coextensive with the district court’s 

narrow focus in its second order denying intervention – the only order on appeal. We thus 

proceed to consider those issues, and only those issues, decided or “fresh[ly] evaluat[ed],” 

see Hodgson, 473 F.2d at 127, in that second order. As a result, our emphasis, like the 

district court’s, is on the application of Rule 24(a)(2)’s adequacy prong to the Attorney 

General’s defense of S.B. 824.

III.

As all parties agree, the intervention issue in this case is governed by federal law, 

and specifically by Federal Rule of Civil Procedure 24. State law, like the North Carolina 

statutes relied upon by the Leaders for their interest in this litigation, may “inform” the 

application of Rule 24, but it does not “supplant” Rule 24 or its criteria for intervention. 

See Planned Parenthood of Wis., Inc. v. Kaul, 942 F.3d 793, 797 (7th Cir. 2019).

1 Because this question does not bear on our own Article III jurisdiction to hear this 

appeal, we are under no obligation to resolve it. Whether or not the Leaders needed or had 

standing to intervene in defense of S.B. 824, they clearly “have standing to appeal the 

denial of their intervention motion.” Doe v. Pub. Citizen, 749 F.3d 246, 257 (4th Cir. 2014)

(citation omitted). The alleged injury suffered by a disappointed would-be intervenor flows 

from the denial of intervention itself, and it may be redressed by an order allowing 

intervention. See CVLR Performance Horses, Inc. v. Wynne, 792 F.3d 469, 475 (4th Cir. 

2015) (final judgment does not moot pre-existing intervention appeal because appellate 

court still may offer remedy by ordering intervention); 15A Charles Alan Wright, Arthur 

R. Miller & Edward H. Cooper, Federal Practice & Procedure Jurisdiction § 3902.1 (2d ed.

Oct. 2020 update) (“Persons denied intervention in the trial court clearly have standing to 

appeal the denial of intervention . . . .”). 
21

Rule 24 provides two avenues for federal-court intervention, one mandatory and one 

discretionary. Intervention as of right is governed by Rule 24(a)(2), under which federal 

courts must permit intervention when, on timely request – a factor undisputed here – a 

proposed intervenor “can demonstrate ‘(1) an interest in the subject matter of the action; 

(2) that the protection of this interest would be impaired because of the action; and (3) that 

the applicant’s interest is not adequately represented by existing parties to the litigation.” 

Stuart v. Huff, 706 F.3d 345, 349 (4th Cir. 2013) (quoting Teague v. Bakker, 931 F.2d 259, 

260–61 (4th Cir. 1991)). Importantly, all these requirements must be met before 

intervention is mandatory; a failure to meet any one will preclude intervention as of right. 

See Virginia v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976). If that 

happens, then “a court may still allow an applicant to intervene permissively under Rule 

24(b), although in that case the court must consider ‘whether the intervention will unduly 

delay or prejudice the adjudication of the original parties’ rights.’” Stuart, 705 F.3d at 349

(quoting Fed. R. Civ. P. 24(b)(3)).

As explained below, we conclude that the district court did not abuse its discretion 

in determining that the Leaders’ purported interest in defending S.B. 824 on behalf of the 

State of North Carolina was adequately represented already by the State Board of Elections 

and Attorney General. That is enough to defeat the Leaders’ claim to mandatory 

intervention. Accordingly, we need not consider whether the Leaders have satisfied Rule 

24(a)(2)’s interest element under the theory addressed and rejected by the district court in 

its second order: that state law has designated them agents of the State’s own undoubted 

interest in the validity of its laws. We may assume for purposes of this appeal, that is, that 
22

state law has endowed the Leaders with a “significantly protectable interest” for purposes 

of Rule 24(a)(2), see Teague, 931 F.2d at 261; even so, they have no right to intervene in 

federal court under Rule 24(a)(2) because that same interest is adequately represented by 

existing parties to the litigation.2

 

As further detailed below, we also find no abuse of discretion in the district court’s 

renewed consideration and denial of the Leaders’ request for permissive intervention. 

Accordingly, we affirm the judgment of the district court. 

A.

Turning to the district court’s application of Rule 24, we bear in mind two key 

features of this case. First is the “necessarily limited” scope of our appellate review. See 

Stuart, 706 F.3d at 350. “It is well settled that district court rulings on both types of 

intervention motions are to be reviewed for abuse of discretion” only. Id. at 349 (citation 

omitted). This deferential standard of review stems in part from the district court’s 

“superior vantage point” for evaluating the parties’ litigation conduct and whether an 

2 We must disagree with the principal dissent’s suggestion that our inquiry into

adequacy amounts to dicta. See Diss. Op. 61 n.3. It is true, as the dissent observes, that 

the district court rejected the Leaders’ original claim to a protected Rule 24(a)(2) interest 

– based on the interests of the General Assembly – in its first order, which falls outside the 

scope of our appellate review. See NAACP I, 332 F.R.D. at 166–68. In its second order, 

however, which is on appeal, the district court considered the Leaders’ separate claim to a 

Rule 24(a)(2) interest, this time as authorized agents of the State’s interest in S.B. 824. See

NAACP II, 2019 WL 5840845, at *2 n.3. As a result, we have before us live arguments on 

all prongs of Rule 24(a)(2); even with our review limited to the district court’s second 

order, the Leaders could prevail if that order incorrectly assessed both interest and 

adequacy. That we choose to resolve the Leaders’ claim on adequacy grounds alone makes 

our adequacy analysis the linchpin of this appeal, not dicta. 
23

existing party adequately represents a proposed intervenor’s interests. Id. at 350. But it 

also recognizes that “[q]uestions of trial management are quintessentially the province of 

the district courts,” and that motions to intervene “can have profound implications for 

district courts’ trial management functions”: Parties added by intervention “can complicate 

routine scheduling orders, prolong and increase the burdens of discovery and motion 

practice, thwart settlement, and delay trial.” Id. (citation omitted). So in this appeal, as in 

any under Rule 24, we are alert to the “boundaries of our reviewing role.” Id.

That role is further informed by the second key feature of this case: its highly 

unusual posture. This is not a case like those decided by the Supreme Court and relied on 

by the Leaders here – Bethune-Hill, 139 S. Ct. 1945, Hollingsworth v. Perry, 570 U.S. 693 

(2013), Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), and Karcher v. May, 

484 U.S. 72 (1987) – in which a state representative, usually a state attorney general, is not

defending state law, or has declined to appeal an adverse ruling. As the Supreme Court’s 

multiple encounters with this recurring fact pattern attest, such cases may present difficult 

questions about the standing and right of other entities to intervene to continue a case in 

the state attorney general’s stead. But at bottom, the issue in those cases is whether any

state representative will be permitted to defend a state’s interest in the validity of its laws,

once the state’s “default” representative has declined to do so. See Kaul, 942 F.3d at 800.

Here, by contrast, the State of North Carolina’s “default” representative – the 

Attorney General – has not “dropped out of the case.” Id. The Attorney General is charged, 

by North Carolina statute, with representing the State’s interest in cases involving 

challenges to state law. See N.C. Gen. Stat. § 114-2(1) (“[I]t shall be the duty of the 
24

Attorney General . . . to appear for the State . . . in any cause or matter, civil or criminal, in 

which the State may be a party or interested.”). And consistent with that duty, the Attorney 

General is very much in this case, defending the constitutionality of S.B. 824, on behalf of 

the State Board of Elections, in state and federal courts, including our own.

As we have explained, the only interest the Leaders may now assert in support of 

intervention under Rule 24(a)(2) is that of the State of North Carolina in the enforcement 

and validity of its laws. And indeed, that is the Leaders’ primary argument on appeal: that 

state law has designated them, along with the Attorney General, to represent the interests 

of the State itself in federal court. See Reply Br. of Appellants 10; see also Bethune-Hill, 

139 S. Ct. at 1951 (where state law designates a legislative entity to “represent [the State’s] 

interests,” that entity may “stand in for the State”). But those, of course, are precisely the 

interests already represented by the Attorney General in this case. So the unusual question 

presented here is whether a federal district court must allow not one but “two state entities 

. . . to speak on behalf of the State at the same time.” Kaul, 942 F.3d at 800.

The Seventh Circuit recently – only after the district court issued its decisions –

became the first federal court of appeals to confront precisely this question, and it explained 

why, under these circumstances, we must be especially circumspect in reviewing a district 

court’s denial of mandatory intervention. In Planned Parenthood of Wisconsin, Inc. v. 

Kaul, just as here, a state legislative entity, relying on a purported authorization in state 

law, sought to intervene as of right to defend the State’s interest in the constitutionality of 

one of its statutes. See 942 F.3d at 796. According to the Wisconsin legislature, the State’s 

Attorney General, though defending the law, was doing so only nominally, failing to 
25

adequately represent Wisconsin’s interests under Rule 24(a)(2). See id. The Seventh 

Circuit assumed without deciding that state law gave the legislature a Rule 24(a)(2) 

“interest” as a representative of the State itself. See id. at 797–98. But because that same 

interest already was represented by the Wisconsin Attorney General, the court explained, 

the legislature could satisfy Rule 24(a)(2)’s adequacy element only if it succeeded in the 

“unenviable task” of convincing a federal court that the Attorney General was inadequately 

representing the interests of his own State. Id. at 801. And that, the court concluded, would 

amount to an “extraordinary finding,” not to be undertaken lightly and requiring something 

much more than a disagreement over litigation strategy. Id.; see also id. at 810 (Sykes, J., 

concurring). 

With that as context, we turn to the district court’s application of Rule 24 and, first 

and foremost, to its assessment of Rule 24(a)(2)’s adequacy prong.

B.

In its opinion denying the Leaders’ renewed request for intervention, the district 

court reviewed the proceedings to date and concluded that the State Board of Elections and 

Attorney General continued to “actively and adequately” defend S.B. 824 for purposes of

Rule 24(a)(2). NAACP II, 2019 WL 5840845, at *2. It carefully reviewed what the Leaders 

described as new evidence of an “unwillingness to robustly defend S.B. 824” in both the 

federal litigation before it and the parallel state litigation in Holmes, and found only 

“strategic disagreements” over choices that “fell well within the range of reasonable 

litigation strategies.” Id. at *2–3. Because the State Board and Attorney General were 

adequately representing the State’s interest in the constitutionality of S.B. 824, and because 
26

there was no reason to think they would abandon that duty in the future, the district court 

held, the Leaders had no entitlement to intervention as of right under Rule 24(a)(2). See 

id. at *4.

On appeal, the Leaders’ primary challenge is to the legal standards employed by the 

district court in its Rule 24(a)(2) adequacy analysis. They also dispute the district court’s 

application of those standards to the performance of the State Board and Attorney General 

in defending S.B. 824. We take the two challenges in turn.3

3 The principal dissent raises one additional point, arguing that the district court 

abused its discretion when it failed to consider, as part of its adequacy analysis, the import 

of the relevant North Carolina statutes. See Diss. Op. 74–75. We disagree. Like the 

Seventh Circuit in Kaul, we think laws like N.C. Gen. Stat. § 1-72.2 bear on the interest 

element of Rule 24(a)(2), not the adequacy element. A state’s policy judgment about the 

value of legislative intervention may bestow a protectable interest in certain court cases, 

but it does not override our normal standards for evaluating the adequacy of existing 

representation in those cases. And if it did – if aspiring legislative intervenors could rely 

on a state-law policy preference for multiple representatives to satisfy both the interest 

prong and the adequacy prong of the test for mandatory intervention – then we would risk 

turning over to state legislatures, rather than district courts, control over litigation involving 

the states. See Kaul, 942 F.3d at 799, 802. 

The Leaders appear to disavow this approach, recognizing the problems it would 

create. Instead, they assure us that state laws designating legislative agents as additional 

representatives will not lead necessarily to intervention as of right – precisely because the 

adequacy prong will remain an independent check. Even where laws like N.C. Gen. Stat. 

§ 1-72.2 establish a protectable interest, that is, mandatory intervention will be 

“foreclose[d]” if “another party adequately represents the legislature’s protectable 

interest.” Appellants’ Br. 32 n.2. Indeed, the Leaders seem never to have asked the district 

court, either, to consider N.C. Gen. Stat. § 1-72.2 in evaluating adequacy, as opposed to 

interest. Even apart from the merits of the position, we would find no abuse of discretion 

in the district court’s failure to take up an argument that was not presented to it. See Smith 

v. Marsh, 194 F.3d 1045, 1052 n.5 (9th Cir. 1999); see also Reaching Hearts Int’l, Inc. v. 

Prince George’s County, 478 F. App’x 54, 63 (4th Cir. 2012).
27

1.

In assessing whether an existing party to this litigation – the State Board, through 

the Attorney General – adequately represented the State’s interest in the validity of S.B. 

824, the district court applied two distinct legal standards. First, as it explained in its initial 

order, it applied the long-standing presumption of adequate representation that arises when 

“the party seeking intervention has the same ultimate objective as a party to the suit.” 

NAACP I, 332 F.R.D. at 168 (quoting Westinghouse, 542 F.2d at 216). Because the 

Leaders’ ultimate objective – upholding S.B. 824 – was the same as that pursued by the 

State Board and Attorney General, the court continued, the Westinghouse presumption 

could be overcome only if the Leaders could “demonstrate adversity of interest, collusion, 

or nonfeasance.” Id. (quoting Westinghouse, 542 F.2d at 216). And second, the court 

understood our decision in Stuart to require that the Leaders make an especially “strong 

showing of inadequacy” to rebut the Westinghouse presumption because their objective 

was shared with a governmental defendant – the State Board – rather than a private litigant. 

Id. at 168 (quoting Stuart, 706 F.3d at 352).4

On appeal, the Leaders’ primary argument is that the district court erred in applying 

both those standards. And it is true that no matter how deferential our review, application 

4 The district court spelled out the challenged standards only in its first order denying 

intervention, which, as we have explained, falls outside the scope of our appellate 

jurisdiction. But the district court’s second order – over which we do have jurisdiction –

incorporates the same standards. See, e.g., NAACP II, 2019 WL 5840845, at *3 (explaining 

that “mere strategic disagreements are not enough to rebut the presumption of adequacy” 

and citing Stuart, 706 F.3d at 353). 
28

of an incorrect legal standard is an abuse of discretion that must be corrected on appeal. 

See League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 235 (4th Cir. 2014). 

In our view, however, the district court committed no such error in applying the standards 

at issue here.

We begin with Westinghouse’s well-established presumption of adequacy, which 

may be overcome on a showing of adversity of interest, collusion, or malfeasance – but not 

by mere “disagreement over how to approach the conduct of the litigation” in question. 

Stuart, 706 F.3d at 353. According to the Leaders, that presumption – which we and 

virtually all our sister circuits have applied for decades5 – is inconsistent with the Supreme 

Court’s more generous approach to intervention, and we should take this opportunity to 

overrule Westinghouse and abandon the presumption. We have rejected that argument 

before. See Stuart, 706 F.3d at 351–52 (rejecting claim that presumption of adequacy –

heightened or otherwise – is inconsistent with Supreme Court precedent). And we continue 

to disagree.

The Leaders rest their argument on a footnote in Trbovich v. United Mine Workers, 

404 U.S. 528, 538 n.10 (1972), in which the Supreme Court described the burden for 

5 Nearly every federal circuit has adopted some version of a presumption of 

adequacy when proposed intervenors share an objective or interest with existing parties. 

See, e.g., In re Thompson, 965 F.2d 1136, 1142–43 (1st Cir. 1992); Butler, Fitzgerald & 

Potter v. Sequa Corp., 250 F.3d 171, 179–80 (2d Cir. 2001); Del. Valley Citizens’ Council 

for Clean Air v. Pennsylvania, 674 F.2d 970, 973 (3d Cir. 1982); Bush v. Viterna, 740 F.2d 

350, 355 (5th Cir. 1984); United States v. Michigan, 424 F.3d 438, 443–44 (6th Cir. 2005); 

Kaul, 942 F.3d at 799; FTC v. Johnson, 800 F.3d 448, 452 (8th Cir. 2015); Arakaki v. 

Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003); Tri-State Generation & Transmission 

Ass’n, Inc. v. N.M. Pub. Regul. Comm’n, 787 F.3d 1068, 1072–73 (10th Cir. 2015); Clark 

v. Putnam County, 168 F.3d 458, 461 (11th Cir. 1999). 
29

showing inadequacy as “minimal,” requiring the proposed intervenor to show only “that 

representation of his interest ‘may be’ inadequate.” But what Trbovich establishes is a 

“default” rule – a “liberal” one, to be sure, but one that may give way to more specific 

“standards for the adequacy of representation under Rule 24” based on the “context of each 

case.” See Kaul, 942 F.3d at 799. In keeping with that context-specific approach, we, in 

the good company of our sister circuits, have determined that it is “perfectly sensible” to 

presume that a proposed intervenor’s interests will be adequately represented by an existing 

party with whom it shares an objective, notwithstanding disagreements over litigation 

tactics. Stuart, 706 F.3d at 352–53.

“Nor could it be any other way,” as we explained in Stuart. Id. at 354. Absent a 

meaningful presumption of adequacy, federal courts would be required under Rule 24(a)(2) 

to arbitrate, de novo, the inevitable differences over strategy that arise even among parties 

who share an ultimate goal, deciding which trial tactics do and do not amount to “adequate” 

representation. “It is not unusual for those who agree in principle to dispute the 

particulars.” Id. But under the Leaders’ more free-wheeling approach – which seems to 

have no obvious stopping point – every one of those disputes will necessitate a federal 

ruling as to whether the existing party’s approach “may” lead to inadequate representation. 

As we concluded in Stuart, “[t]o have such unremarkable divergences of view sow the 

seeds for intervention as of right risks generating endless squabbles at every juncture over 

how best to proceed.” Id. We see no reason to revisit that conclusion here.

Nor are we persuaded by the Leaders’ back-up claim: that even if the Westinghouse

presumption remains good law, it does not apply in this case because they seek to advance 
30

an objective distinct from that of the existing party, the State Board, as represented by the 

Attorney General. We have covered some of this ground already. The Attorney General 

is charged by law with representing the interests of the State and its agencies in court, 

including in cases challenging state law. See N.C. Gen. Stat. § 114-2; Martin v. Thornburg, 

359 S.E.2d 472, 479 (N.C. 1987). The Attorney General, on behalf of the State Board, is 

litigating the validity of S.B. 824 in state and federal court, seeking to uphold its legality. 

And as the Leaders conceded at oral argument before the en banc court, that is precisely 

the same objective that they would pursue if allowed to intervene. 

In an effort to find some daylight between their own ultimate objective and that of 

the State Board and Attorney General, the Leaders suggest that the Board’s institutional 

interest in administering elections gives it a distinct goal, not shared by the Leaders: an 

interest in expediently obtaining clear guidance from the courts as to what law will govern 

upcoming elections. And it is true that the State Board acknowledged that interest in a 

filing before the district court. See J.A. 589. But as we have explained, there is nothing 

unreasonable about the adoption by state defendants of a litigation strategy designed to 

produce an “expeditious final ruling on the constitutionality” of state law. Stuart, 706 F.3d 

at 354. And here, the specific request of the State Board to which the Leaders allude – that 

any temporary relief granted by the court be flexible enough to allow for prompt 

implementation of the law if the preliminary injunction were later vacated – is consistent, 

not in conflict, with its ultimate goal of defending the constitutionality of S.B. 824. See 

NAACP II, 2019 WL 5840845, at *4 (explaining that “while a ‘primary objective’ of the 
31

State Board in opposing the preliminary injunction was to ‘expediently obtain clear 

guidance,’” that objective did not come at the expense of a defense of S.B. 824).6

That brings us to the second of the standards the district court applied, requiring that 

the Leaders, in seeking to rebut the Westinghouse presumption, “mount a strong showing 

of inadequacy.” NAACP I, 332 F.R.D. at 169 (quoting Stuart, 706 F.3d at 352). We held 

in Stuart that “a more exacting showing of inadequacy should be required where the 

proposed intervenor shares the same objective as a governmental party,” like the State 

Board here, as opposed to a private litigant. 706 F.3d at 351. Governmental entities are 

entitled to this heightened presumption of adequacy, we reasoned, in part because they are 

uniquely well-situated to defend a state statute under attack, given their ability to speak in 

a representative capacity and their “familiarity with the matters of public concern that lead 

to the statute’s passage in the first place.” Id. Focusing on that reasoning, the Leaders 

argue that Stuart does not apply in a case like this one, where the proposed intervenor is 

not a private party, as in Stuart, but rather another governmental entity, equally well-suited 

to speak in defense of a state statute. 

We agree with the Leaders to this extent: The better reading of Stuart is that it does 

not by its terms control this case. But “that is not, by itself, a reason to reach another 

6 That is enough to distinguish this case from Northeast Ohio Coalition for the 

Homeless v. Blackwell, 467 F.3d 999 (6th Cir. 2006), in which the Sixth Circuit allowed 

the State of Ohio and its legislature to intervene in defense of a voter-ID law. As the court 

explained, no presumption of adequacy applied in that case because the interest of the 

existing defendant, the Secretary of State, in smooth election administration meant that he 

did not share the State’s objective of “defending the validity of Ohio laws.” Id. at 1008.
32

result.” See Kaul, 942 F.3d at 799 (addressing same question and choosing to extend prior 

precedent calling for heightened presumption of adequacy for governmental defendants). 

Rather, it leaves the question of whether Stuart’s heightened presumption of adequacy 

should be afforded to government defendants even when other governmental entities, like 

the Leaders here, seek to intervene on their side. We think it should.

Although some of Stuart’s reasoning does not translate to this context, one of its 

main pillars does: A government defendant, given its “basic duty to represent the public 

interest,” is a presumptively adequate defender of duly enacted statutes. Stuart, 706 F.3d 

at 351. And when a “governmental official . . . is legally required to represent” the state’s 

interest – as is the Attorney General here – then it is “reasonable, fair and consistent with 

the practical inquiry required by Rule 24(a)(2) to start from a presumption of adequate 

representation and put the intervenor to a heightened burden” to overcome it. Kaul, 942 

F.3d at 810 (Sykes, J., concurring). Nothing about that conclusion, which reflects no more 

than the normal assumption that government officials properly discharge their duties, see 

United States v. Chem. Found., 272 U.S. 1, 14–15 (1926), should change just because the 

proposed intervenor also is a government entity with its own public duties. 

Moreover, as the Seventh Circuit explained in Kaul, in cases like this one, a 

proposed intervenor’s governmental status makes a heightened presumption of adequacy 

more appropriate, not less. A private party seeking to intervene can argue that although it 

seeks the same objective as the state’s representative, the state’s interests – informed, as 

they must be, by the concerns of the general public – do not perfectly overlap with his or 

her more individualized interests. See Kaul, 942 F.3d at 801. But the Leaders – like the 
33

legislature in Kaul – cannot make that argument, because they are seeking, as governmental 

parties, to represent precisely the same state interests as the state defendants already in the 

case. The Leaders, that is, “go[] further than sharing a goal with the Attorney General”; 

they “intend[] to represent the same client,” the State of North Carolina. See id. (emphases 

added). Under those circumstances, the “alignment” between the Attorney General and 

the would-be governmental intervenors is one-for-one – closer than the alignment in Stuart. 

Cf. Stuart, 706 F.3d at 353. And under those circumstances, as we have emphasized, the 

Leaders have a right to intervene only if North Carolina’s Attorney General – charged by 

state law with representing the same interests they seek to advance – is inadequately 

representing his own State. Requiring a heightened showing of inadequacy to justify such 

an “extraordinary finding” strikes us as entirely appropriate. See Kaul, 942 F.3d at 801.

Finally, the practical concerns we identified in Stuart about a less exacting standard 

for inadequacy are not abated simply because a proposed intervenor is governmental and 

not private. Government intervenors, no less than private ones, run the risk of rendering 

litigation “unmanageable” in the federal courts. Kaul, 942 F.3d at 802; see Stuart, 706 

F.3d at 350 (explaining “profound implications” of intervention on district courts’ trial 

management). Faced with the prospect of intervention based only on a minimal showing 

of inadequacy, the original government defendant “could be compelled to modify its 

litigation strategy” to suit the putative intervenor’s preferences “or else suffer the 

consequences of a geometrically protracted, costly, and complicated litigation.” Stuart, 

706 F.3d at 351. 
34

And those baseline concerns are only magnified in a case like this, in which a 

government entity seeks intervention to represent the same state interest represented 

already by a state attorney general. “If the [Leaders] were allowed to intervene as [of] 

right, then [they] and the Attorney General could take inconsistent positions on any number 

of issues beyond the decision whether to move to dismiss, from briefing schedules, to 

discovery issues, to the ultimate merits of the case.” Kaul, 942 F.3d at 801. And at that 

point – a point almost certain to arise in this case, if past is prelude – a federal district court 

will have to “divin[e] the true position” and interests of the State of North Carolina, and 

which of its representatives, the Leaders or the Attorney General, better represents it. Id. 

Those are fundamentally political questions, and without a substantial presumption of 

adequacy, federal courts could be required to take sides in these political battles on a regular 

basis. See Planned Parenthood of Wis., Inc. v. Kaul, 384 F. Supp. 3d 982, 990 (W.D. Wis. 

2019) (“[T]o allow intervention would likely infuse additional politics into an already 

politically-divisive area of the law and needlessly complicate this case.”).

We do not, of course, question a sovereign state’s authority to designate its preferred 

legal representative in court proceedings. See Bethune-Hill, 139 S. Ct. at 1951 (citing 

Hollingsworth, 570 U.S. at 710). If North Carolina’s General Assembly, in its considered 

judgment, believes that the Attorney General is not adequately representing the State in 

this or any case, then it of course is free to remove the Attorney General and substitute 

some other representative, including the Leaders. But what the Leaders are asking for is 

more than that: The right of a state to designate not one but two representatives – or three, 

or more, because there is no discernible limiting principle here – in a single federal case, 
35

all purporting to speak for the state. See Kaul, 942 F.3d at 802. Under the Leaders’ 

approach, a federal court would be required to accommodate that cacophony of parties, 

given the mandatory nature of Rule 24(a)(2), upon only a nominal showing of inadequacy, 

and regardless of the “intractable procedural mess” that could follow. Id. at 801–02. With 

full respect for the states’ sovereign autonomy, we decline to read Rule 24(a)(2) to leave 

federal district courts effectively “powerless to control litigation involving states.” Id. at 

802.

Accordingly, we take this opportunity to clarify that Stuart’s heightened 

presumption of adequacy applies when governmental as well as private entities seek to 

intervene on the side of governmental defendants. The district court therefore did not err 

when it required the Leaders to make a “strong showing” of inadequacy to rebut the 

Westinghouse presumption. NAACP I, 332 F.R.D. at 169. We note, however, that this 

heightened presumption is not critical to the resolution of this case. As we explain below, 

with or without the overlay of a “strong showing” requirement, the Leaders cannot 

overcome the standard Westinghouse presumption that the State Board of Elections and 

Attorney General are adequately pursuing the shared objective of defending S.B. 824’s 

validity.

2.

At this point in the analysis, we are in the heartland of the deference owed a district 

court’s judgment under Rule 24(a)(2)’s adequacy prong. It is not for us to decide whether, 

in our best view, the Leaders have demonstrated that the State Board and Attorney General 

are inadequate representatives of the State’s interest in S.B. 824’s validity. That inquiry is 
36

firmly committed to the discretion of the district court. Stuart, 706 F.3d at 349–50. The 

only question before us is whether it can be said that the district court abused that wide 

discretion when it found in its second order that the Attorney General, consistent with his 

statutory duties, continued to provide an adequate defense of S.B. 824. We see no such 

abuse of discretion here. 

First, there is no ground to set aside the district court’s finding – and indeed, we do 

not understand the Leaders to contest this point – that the State Board and Attorney General 

in fact continue to defend S.B. 824. At the outset of its opinion denying the Leaders’ 

renewed motion to intervene, the district court determined that the Attorney General, on 

behalf of the State Board, had taken and continued to take active steps to defend S.B. 824 

in court. In this federal action, the court explained, the Attorney General had “consistently 

denied all substantive allegations of unconstitutionality,” moved to dismiss the case on 

federalism grounds, and recently filed an “expansive brief” opposing on the merits the 

plaintiffs’ motion for a preliminary injunction. NAACP II, 2019 WL 5840845, at *3. And 

in state court, the Attorney General had moved to dismiss five of six counts of the Holmes 

plaintiffs’ complaint and opposed a preliminary injunction. See id. at *3–4. This was not 

a case, in other words, in which the Attorney General actually had “abandoned” the defense 

of S.B. 824 or indicated that he would do so in the future. Id. at *4.

In arguing that the Attorney General nevertheless is an inadequate representative of 

the State’s interest in S.B. 824 – and that the district court abused its discretion in finding 

otherwise – the Leaders consistently have advanced two central arguments. First, they 

object to the way in which the Attorney General has chosen to defend S.B. 824. According 
37

to the Leaders, the Attorney General’s litigation decisions in this action and in Holmes

demonstrate an “unwillingness to robustly defend S.B. 824,” id. at *2 (emphasis added), 

that amounts to “nonfeasance” sufficient to rebut the Westinghouse presumption of 

adequacy. The district court rejected that claim, id., finding only the kind of garden-variety 

disagreements over litigation strategy that we and other courts consistently have deemed 

insufficient to overcome a presumption of adequacy, whatever the precise strength of the 

presumption and whether or not it includes a “strong showing” component, see Stuart, 706 

F.3d at 349, 353; see also Kaul, 942 F.3d at 810–11 (Sykes, J., concurring). We think that 

judgment falls well within the district court’s discretion.7

With respect to this federal court litigation, for instance, the Leaders’ renewed 

motion focused on an alleged lack of vigor in the State Board’s opposition to the NAACP’s 

preliminary injunction request. In particular, the Leaders argued, the Board did not hire 

experts to submit reports in opposition to that request, nor move to stay the preliminary 

injunction once entered. But we confronted very similar objections in Stuart, in which the 

7 In its first order, the district court cited our longstanding rule that Westinghouse’s 

presumption of adequacy can be rebutted only by a showing of “adversity of interest, 

collusion, or nonfeasance.” See NAACP I, 332 F.R.D. at 168 (quoting Westinghouse, 542 

F.2d at 216). As the Leaders point out, there has been some criticism of courts’ treatment 

of those factors, or factors like them, as necessary rather than sufficient to rebut the 

presumption of adequacy. See 7C Charles Alan Wright, Arthur R. Miller & Mary Kay 

Kane, Federal Practice & Procedure Civil § 1909 (3d ed. Oct. 2020 update); Kaul, 942 F.3d 

at 807–10 (Sykes, J., concurring). We can leave that issue for another day. Here, the 

district court found – in a determination to which we defer – that the Leaders’ only evidence 

of inadequacy amounted to no more than differences over litigation tactics. However wide 

the range of evidence that will rebut the presumption of adequacy, “disagreements about 

litigation strategy” will not do the trick. See Kaul, 942 F.3d at 810 (Sykes, J., concurring). 
38

proposed intervenor criticized the Attorney General for presenting only legal argument and 

not factual evidence at the preliminary injunction stage, and for forgoing an appeal of a 

preliminary injunction to litigate the case to final judgment. See Stuart, 706 F.3d at 353. 

That sort of “disagreement over how to approach the conduct of the litigation,” we held, is 

insufficient to rebut the presumption of adequacy, as evidence of either nonfeasance or 

adversity of interests. Id. at 353–54; see also id. at 354 (“It was eminently reasonable for 

the Attorney General to believe that the interests of North Carolina’s citizens would best 

be served by an expeditious final ruling on the constitutionality of the Act, as opposed to 

prolonged intermediate litigation over the preliminary injunction.”); Saldano v. Roach, 363 

F.3d 545, 555 (5th Cir. 2004) (“Simply because the [intervenor] would have made a 

different [litigation] decision does not mean that the Attorney General is inadequately 

representing the State’s interest . . . .”).

And indeed, the course of litigation since the district court’s intervention decision 

has only confirmed that the Attorney General’s litigation approach was well within the 

range of acceptable strategy. After the district court issued a preliminary injunction, the 

State Board promptly and successfully appealed that decision, securing a reversal of the 

preliminary injunction. See N.C. State Conf. of the NAACP v. Raymond, 981 F.3d 295, 311

(4th Cir. 2020). Although we permitted the Leaders to intervene to make legal arguments 

in that appeal, our reversal was based on the record the Attorney General created in the 

district court, without the need for additional fact or expert evidence. See id. at 310–11.

Likewise, the district court was within its discretion in finding no new evidence of 

nonfeasance or inadequacy in the Attorney General’s then-recent litigation choices in the 
39

state-court Holmes case.

8

 There, the Leaders faulted the State Board for seeking dismissal 

of only five of the complaint’s six counts, reserving a dispositive challenge to the factintensive claim of intentional discrimination for later in the proceedings. But as the district 

court observed, the State Board’s approach was vindicated when the state court agreed to

dismiss all five claims it had challenged but not the intentional-discrimination claim 

separately challenged by the Leaders. NAACP II, 2019 WL 5840845, at *3; see Stuart, 

706 F.3d at 354 (“The reasonableness of the Attorney General’s choice is particularly 

manifest given that it was largely successful . . . .”). The district court also addressed the 

Leaders’ concern that the State Board had not mounted a “substantive defense” to the 

preliminary injunction sought by the plaintiffs: that injunction was denied after both the 

State Board and the Leaders opposed and argued against it, and there was no evidence, the 

court found, that the credit for this victory should not be shared. See NAACP II, 2019 WL 

5840845, at *4. Finally, though the Leaders alleged that the State Board took an 

insufficiently aggressive approach to discovery in Holmes, the district court found it 

“entirely reasonable” for the Board to “focus its energies elsewhere,” given that the 

8 The district court expressed some doubt as to whether the State Board’s litigation 

choices in Holmes – a case in a different forum, involving different (though overlapping) 

parties and claims – had any bearing at all, “predictive” or otherwise, on the adequacy of 

the State Board’s defense of S.B. 824 in this federal action. NAACP II, 2019 WL 5840845, 

at *3. “Proposed Intervenors do not point to a single case suggesting that a defendant’s 

performance . . . in one lawsuit invites intervention in another.” Id. at *3. Nevertheless, 

the district court went on to review the conduct of the Holmes litigation, finding no 

evidence of inadequate representation. Because we affirm that finding as within the district 

court’s discretion, we need not decide what role, if any, inadequate representation in one 

case should play in the application of Rule 24(a)(2) in another. 
40

Leaders, by their own account, had taken the lead on these matters. See id.; see also 

Appellants’ Br. 45. 

In short, after canvassing the recent litigation conduct cited by the Leaders in their 

renewed motion, the district court determined that the State Board, through the Attorney 

General, continued to “actively and adequately” defend S.B. 824. See NAACP II, 2019 

WL 5840845, at *2. The Leaders’ objections, the court concluded, remained “mere 

strategic disagreements” about the pursuit of a shared objective, insufficient to rebut the 

presumption of adequacy. Id. at *3. We owe substantial deference to that judgment, see 

Stuart, 706 F.3d at 349–50, and see no reason to disturb it here. Indeed, we are inclined to 

agree with the district court that the Leaders’ new evidence of alleged inadequacy – coming 

in a case in which the Attorney General successfully moved to dismiss the Governor as a 

defendant, vigorously opposed a preliminary injunction, and then successfully appealed 

from the entry of that injunction – reflects no more than routine disagreement about 

litigation tactics. And if those disagreements were themselves enough to rebut the 

presumption of adequacy, that “would simply open the door to a complicating host of 

intervening parties with hardly a corresponding benefit.” Id. at 353.

That leaves the Leaders’ second central argument: the suggestion that the Attorney 

General is not mounting an even more aggressive defense of S.B. 824 because he, like the 

Governor, is opposed to voter-ID laws as a matter of public policy. The Leaders point us 

to past statements by both the Attorney General and the Governor opposing a prior voterID law, arguing that it curtailed the right of North Carolina citizens to vote. And after he 

assumed his current position, the Leaders emphasize, the Attorney General, acting on 
41

behalf of the then-incoming Governor, moved to dismiss a petition for certiorari review of 

a decision holding that same voter-ID law unconstitutional. See North Carolina v. N.C. 

State Conf. of the NAACP, 137 S. Ct. 1399, 1399 (2017) (mem.). Whether framed as an 

argument for collusion or for adversity of interests, the import of the Leaders’ claim is the 

same: This Attorney General – as well as the State Board he represents, consisting of 

members appointed by the Governor – cannot be trusted to defend S.B. 824.9

That is a startling accusation. The Attorney General has a statutory duty to represent 

and defend the State and its interests in this litigation. See N.C. Gen. Stat. § 114-2. And 

that is to say nothing of his ethical obligations, which require zealous representation of his 

client, see Revised Rules of Professional Conduct of the North Carolina State Bar, Rule 

0.1[2] (preamble), and prohibit him from falsely assuring the district court that he is 

“meeting [his] duty to defend this action,” J.A. 662; see Revised Rules of Professional 

Conduct of the North Carolina State Bar, Rule 3.3 (candor to court). That the Attorney 

General may have expressed policy views at odds with S.B. 824 in the past is no ground 

for a federal court to infer that he would abdicate his official duty to the State by subterfuge, 

mounting a sham defense of the statute. To suggest otherwise is a disservice to the 

dignified work of government lawyers who each day put aside their own policy and 

political preferences to advocate dutifully on behalf of their governments and the general 

9 The district court expressly addressed this claim in its initial order denying 

intervention, see NAACP I, 332 F.R.D. at 169–71, over which we lack jurisdiction. But 

because the challenge here goes to the very probity of the lawyers before the district court, 

we think it necessarily merges into the district court’s second assessment of the adequacy 

of representation, before us now on appeal.
42

public. See Kaul, 942 F.3d at 810–11 (Sykes, J., concurring) (concluding that “political 

and policy differences” between proposed legislative intervenor and state attorney general 

regarding challenged law are not evidence of inadequate representation).

In any event, the district court found there was no evidence in the record indicating 

that the Attorney General’s policy preferences left him without the proper “level of 

interest” or “incentive” to robustly litigate on behalf of S.B. 824. NAACP I, 332 F.R.D. at 

170. Nor, the court determined, has the Governor’s control of appointments to the State 

Board caused the Board to fall short in its defense of that law. See id. at 171. Any 

suggestion that the Governor might use his appointment power to direct the State Board or 

Attorney General to slow-walk the State’s defense of S.B. 824, the court held, was no more 

than “conclusory speculation,” insufficient on the current record to rebut the presumption 

of adequate representation. Id. at 170, 171. We see no abuse of discretion in that 

considered judgment.10

10 On this en banc appeal, the Leaders point us to one new litigation development: 

In the State Board’s successful appeal from the district court’s preliminary injunction, the 

Governor filed an amicus brief urging us to affirm entry of the injunction to avoid 

confusion during the 2020 election cycle. See Brief of Roy Cooper as Amicus Curiae, N.C. 

State Conf. of the NAACP v. Raymond, No. 20-1092 (4th Cir. July 20, 2020). The 

Governor’s brief, filed by private counsel, focused narrowly on the practicalities of lifting 

the preliminary injunction right before an election and during a pandemic, and by itself 

does not indicate that either the State Board or the Attorney General – who sought and won 

a reversal of the preliminary injunction – had failed or would fail to adequately defend the 

law on the merits. Given the limited nature of our review in this posture, we think it

appropriate for the district court to consider in the first instance what bearing this brief 

might have on the adequacy of the State Board’s defense of S.B. 824 going forward, should 

the Leaders again seek intervention.
43

That is not to say, of course, that there never could be a case in which a state attorney 

general’s political opposition to a statute – or the opposition of some other state legal 

representative – might cause an abdication of the duty to defend that law in court. Should 

the Attorney General or State Board in fact abandon their defense of S.B. 824 in the future, 

failing to file an appeal or petition for certiorari in the appropriate circumstance or 

otherwise to litigate on the law’s behalf, then we would have the changed circumstance the 

district court hypothesized in its first order denying intervention. At that point, the Leaders 

would be free to seek intervention once again, and the district court free to reconsider the 

Rule 24(a)(2) factors – and in particular, whether state law authorized the Leaders to step 

into this newly created breach to represent the State’s interest in the validity of its statute. 

But on the present record, we defer to the district court’s judgment that the Leaders’ 

renewed request for intervention as of right was premature and without support.

C.

Finally, we turn to the district court’s reevaluation and reaffirmation, in its second 

order, of its denial of permissive intervention under Rule 24(b). This is not the focus of 

the Leaders’ appeal, and for good reason. Here, the deference accorded the district court 

is at its zenith: The discretion Rule 24(b) affords the district court is “even broader” than 

that under Rule 24(a)(2), R&G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584 F.3d 

1, 11 (1st Cir. 2009), and “a challenge to the court’s discretionary decision to deny leave 

to intervene must demonstrate a clear abuse of discretion in denying the motion,” McHenry 

v. Comm’r, 677 F.3d 214, 219 (4th Cir. 2012) (internal quotation marks omitted). The 

Leaders cannot meet that high standard. 
44

The district court’s original decision to deny permissive intervention – while 

allowing amicus participation – rested on its finding that the addition of the Leaders as 

parties would result in unnecessary complications and delay, jeopardizing the court’s 

ability to reach final judgment in a timely manner and likely prejudicing the plaintiffs, who 

would be required to address “dueling defendants” with multiple litigation strategies all 

purporting to represent the same state interest. NAACP I, 332 F.R.D. at 172. In its decision 

reviewing the Leaders’ renewed motion – the decision on appeal – the district court 

expressly reaffirmed that finding. NAACP II, 2019 WL 5840845, at *4. And indeed, the 

court found, the Leaders’ litigation conduct in the intervening months – appealing a 

purported “de facto” denial of their motion before the court had ruled on it, and seeking 

the extraordinary remedy of mandamus – had only “further convinced” it that intervention 

would “distract from the pressing issues in this case.” Id. 

The Leaders disagree, as is their right, insisting that their presence as parties, rather 

than amici, would facilitate and not hinder the prompt and equitable resolution of this 

litigation. But the district court’s contrary conclusion is a factual judgment, informed by 

its “on the scene presence” and going directly to its trial management prerogatives, to 

which we owe the most substantial deference. See Stuart, 706 F.3d at 350 (internal citation 

omitted). We have no grounds for setting aside the court’s finding as a “clear abuse of 

discretion.” McHenry, 677 F.3d at 219. Moreover, that finding is sufficient by itself to 

justify the denial of permissive intervention under Rule 24(b)(3), which mandates the 

consideration of two – and only two – factors: undue delay and prejudice to existing 

parties. See Fed. R. Civ. P. 24(b)(3); McHenry, 677 F.3d at 225 (describing undue delay 
45

and prejudice as the “core considerations” under Rule 24(b)(3)). Whatever other 

discretionary factors the court might have taken into account under Rule 24(b) – that is, 

once it found that the Leaders’ intervention was likely to cause undue delay and prejudice 

to the plaintiffs – it did not abuse its discretion, let alone “clearly” so, by denying 

permissive intervention on that basis alone.

IV.

For the reasons given above, the judgment of the district court is affirmed.

AFFIRMED
46

WILKINSON, Circuit Judge, dissenting:

Every attorney general who looks in the mirror sees a governor. Or so it is said. 

Therein lies a temptation. When a challenge is brought to an unpopular or controversial 

state law, an attorney general’s defense of the law may be less than wholehearted. If the 

plaintiffs in the case are politically influential, the temptation to pull punches becomes even 

stronger. It casts no aspersions on anyone to note the obvious: North Carolina’s voter 

photo ID law is a very controversial statute. See 2018 N.C. Sess. Laws 144.

The attorney general’s office exists at the crossroads of law and politics. Electoral 

ambitions frequently collide with an AG’s obligations both to his client and to the court. 

But this fact alone does not allow courts to be cynical. Perhaps I am naïve in not taking a 

darker view of human nature, but I believe that when a state statute is under challenge, an 

AG’s professional and ethical obligations—and certainly those of the Department of 

Justice which he leads—will most often prevail over the political itch. The AG, after all, 

is the state’s chief legal officer, and that should mean a lot.

How to disentangle the legal from the political? Trial courts are best equipped to 

do so. The district court is best situated to assess the “adequacy” of an existing party’s 

representation of a proposed intervenor’s interest. See Fed. R. Civ. Pro. 24. The parties 

are right there in front of it. Adequacy moreover is a judgment call. The court of appeals 

thus has a duty to respect the abuse of discretion standard under which a district court 

operates and, beyond that, not to gratuitously make the administration of the trial court’s 

docket an unmanageable task. 
47

Open-ended intervention greatly complicates the trial court’s duty to have the trains 

run on time. More coordination of such mundane matters as continuances, status 

conferences, and discovery deadlines is required. Scheduling preferences are not the only 

snag. The more parties to a litigation, the more inevitable divergences in strategy arise, 

and the more complex the suit becomes. Intervenors are no aid to simplicity. Cf. Fed. R. 

Civ. Pro. 24(b)(3) (recognizing the risk of delay in the context of permissive intervention). 

Multi-party litigation tends to take longer to resolve and tends, as well, to run up attorneys’ 

fees. Incurring all these costs seems especially unnecessary where, for many a would-be 

intervenor, amicus status is quite sufficient. In other cases, intervenors are best diverted 

from litigation to the legislative realm. When appeals—like this one—are taken on 

preliminary questions only tangentially related to the actual merits of the suit, the danger 

of intervention interminability is compounded.

I find much to commend in Judge Harris’s opinion, which underscores these points 

well. And here we face the added fact that the Attorney General has both taken an appeal 

from the preliminary injunction entered against the state statute and prevailed before this 

court in having the statute upheld. See NC State Conf. of the NAACP v. Raymond, 981 

F.3d 295 (4th Cir. 2020).

So why then allow intervention? And here Judge Quattlebaum has ably presented 

the argument. This case may present just that narrow set of circumstances in which 

intervention should be permitted. For one, the prospective intervenor is not a private party 

as in Stuart v. Huff, 706 F.3d 345 (4th Cir. 2013), but a coordinate branch of state 

government. State law envisions a role for the General Assembly when a state statute is 
48

under challenge. North Carolina has enacted statutes that ask federal courts to allow both 

the executive and legislative branches of the state government to participate in actions 

challenging the constitutionality of its laws. See N.C. Gen. Stat. § 1-72.2(a); see also id.

§§ 114-2, 120-32.6. As for the executive, the Attorney General of North Carolina has a 

general statutory duty to represent the state, its agencies, and its officers in any court 

proceedings. See id. § 114-2(1), (2). That is a common responsibility of attorneys general 

across the nation. North Carolina, however, has seen fit to supplement the Attorney 

General’s representation of the state when there are challenges to the constitutionality of 

state statutes. North Carolina law allows for the General Assembly, through its two houses’ 

presiding officers, to represent the interests of the state. See id. §§ 1-72.2, 120-32.6.

While it is by no means clear that state law can mandate that federal courts allow a 

single state to speak with dual voices in federal proceedings, it is altogether clear that 

federal law itself has an especially important role to play in election law cases. No less an 

authority than our Constitution leaves the legislatures of the states the power to 

“prescribe[]” the “Times, Places and Manner of holding Elections.” U.S. Const. art. I, § 4, 

cl. 1. This important task was not delegated to state government in general but to state 

legislatures in particular. See id. The North Carolina photo ID law provides a clear 

example of prescribing the “Manner of holding Elections.” Thus the “interests” of the 

proposed intervenors in this case could hardly be more apparent. And in “divided 

government” states like North Carolina, the danger that the executive or judicial branches 

may seek to override the constitutionally prescribed legislative role is more than 

theoretical. 
49

As a result, given the confluence of factors before the court, I would recognize a 

right to intervention in these narrowest of circumstances. I would not under any 

circumstances let intervention loose as a contagious legal principle. 
50

NIEMEYER, Circuit Judge, dissenting:

While I compliment Judge Harris’ craftsmanship in discussing Federal Rule of Civil 

Procedure 24, I concur in Judge Quattlebaum’s fine opinion and request that he show me 

as joining it. I write separately only to emphasize that the issue is, I believe, more than a 

procedural one under Rule 24. 

While intervention under Rule 24 is, to be sure, the relevant procedural question —

one of federal law — the relevant parties and their interests are substantive issues that are 

to be determined by state law, and this aspect is mostly finessed by the majority’s ruling. 

To accomplish its result, the majority collapses, for purposes of its discussion, the North 

Carolina parties into the singular “State of North Carolina” and their interests into the 

singular “State’s interest.” It then concludes that under Rule 24 the Attorney General is 

adequately representing North Carolina and North Carolina’s interests and therefore no 

other party having an interest in a North Carolina statute may intervene. I think this is 

more than a convenient formulation, as it fails to address the inherent underlying issues 

necessary in deciding the Rule 24 motion. 

The plaintiffs in this case seek a declaration that a North Carolina election law is 

invalid, and they named as defendants the Governor and the North Carolina State Board of 

Elections. Yet, state law anticipates that the State will be sued when the validity or 

constitutionality of an act of the General Assembly is challenged. See N.C. Gen. Stat. 

§ 1-72.2(a). Section 1-72.2(a) provides that the “General Assembly and the Governor 

constitute the State of North Carolina” in such a suit, and therefore, a court should allow 

the General Assembly and the Governor “to participate in” “any action in any federal court 
51

in which the validity or constitutionality of an act of the General Assembly . . . is 

challenged.” Id. That is declared to be the “public policy of the State.” Id. And state law 

further authorizes the General Assembly to retain counsel of its own choosing and not 

necessarily the Attorney General, thus contemplating that the General Assembly might find 

the Attorney General’s counsel inadequate or otherwise undesirable. See N.C. Gen. Stat. 

§ 1-72.2(b). The majority opinion fails to take proper account of this state law, which I 

suggest lies at the substantive root of this case.

To be sure, the procedural principles of Rule 24 intervention must be applied in this 

case to ensure that the proper parties are before the court. But underlying that application 

are questions of substantive state law regarding who the relevant parties are and who 

defends the state’s interest. The majority opinion does not, except most obliquely, address 

these questions. And its failure to recognize these aspects is especially significant in view 

of the history of S.B. 824, which entails a story of political conflicts and differences 

between the branches of North Carolina government. Indeed, giving homage to state law 

in these circumstances seems to be explicitly mandated, as the Supreme Court noted when 

it stated, “If the State had designated the House to represent its interests, and if the House 

had in fact carried out that mission, we would agree that the House could stand for the 

State.” Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019). 

Here, the State of North Carolina, as sovereign, did designate the General Assembly 

to represent its interests. And if we give its choice effect, then the analysis conducted by 

the majority in concluding that the General Assembly may not be allowed to intervene 
52

under Federal Rule 24 because the Attorney General is doing a good job is substantively 

flawed. 
53

QUATTLEBAUM, Circuit Judge, with whom Judges NIEMEYER, AGEE, 

RICHARDSON, and RUSHING join, dissenting:

North Carolina recognized a potential problem. It anticipated that there could be 

times when its executive branch would not vigorously enforce the state’s duly-enacted 

legislation. To address that concern, North Carolina passed a law that requests the North 

Carolina General Assembly be permitted, alongside the executive branch, to defend any 

federal action challenging a North Carolina statute. 

More specifically, North Carolina enacted N.C. Gen. Stat. § 1-72.2, first passed in

2013 and modified in 2017, which provides that for any action challenging an act of the 

General Assembly, “[i]t is the public policy of the State of North Carolina that . . . the 

General Assembly, jointly through the Speaker of the House of Representatives and the 

President Pro Tempore of the Senate, constitutes the legislative branch of the State of North 

Carolina; the Governor constitutes the executive branch of the State of North Carolina; 

[and] that, when the State of North Carolina is named as a defendant in such cases, both 

the General Assembly and the Governor constitute the State of North Carolina . . . .” N.C. 

Gen. Stat. § 1-72.2(a) (emphasis added). It then requests that a federal court presiding over

an action where the State of North Carolina is a named party allow both the legislative 

branch and the executive branch of the State of North Carolina to participate as a party in 

such an action.1 Id.

1 North Carolina passed other laws to address this same concern. For example, N.C. 

Gen. Stat. § 120-32.6 provides “[w]henever the validity or constitutionality of an act of the 

General Assembly or a provision of the Constitution of North Carolina is the subject of an 
54

Subsequently, North Carolina passed its current voter identification bill. In 

response, the state chapter of the NAACP and several county branches (collectively the 

“NAACP”) sued North Carolina’s Governor—who, like the NAACP, opposed the bill—

and the members of the State Board of Elections that the Governor appointed, claiming the 

law was unconstitutional. 

North Carolina’s Attorney General, who also publicly opposed the law, was tasked

with defending it on behalf of the Governor and the State Board of Elections. The authority 

for the Attorney General to defend the law was grounded in North Carolina law. N.C. Gen. 

Stat. Ann. § 114-2 provides that “[p]ursuant to Section 7(2) of Article III of the North 

Carolina Constitution, it shall be the duty of the Attorney General: (1) To defend all actions 

in the appellate division in which the State shall be interested, or a party, and to appear for 

the State in any other court or tribunal in any cause or matter, civil or criminal, in which 

the State may be a party or interested.”

However, North Carolina’s Speaker of the House of Representatives and President

Pro Tempore of the Senate (the “Leaders”) believed that the NAACP’s challenge to the

voter identification law involved the exact situation contemplated by N.C. Gen. Stat. § 1-

72.2. As a result, they moved to intervene to defend the law. They claimed a significantly

protectable interest in the litigation that, without intervention, would practically be

action in any State or federal court, the Speaker of the House of Representatives and the 

President Pro Tempore of the Senate, as agents of the State through the General Assembly, 

shall be necessary parties and shall be deemed to be a client of the Attorney General for 

purposes of that action as a matter of law and pursuant to Section 7(2) of Article III of the 

North Carolina Constitution.”
55

impaired. And they claimed that their interest was not being adequately represented by the

Governor and the State Board of Elections due both to the public opposition to the bill

expressed by the Governor and the Attorney General and to what they described as the

half-hearted way the Attorney General was defending the law in this case and in a parallel

case in state court—Holmes v. Moore, No. 18-cv-15292 (N.C. Super. Ct.). The district

court denied the Leaders’ motion to intervene, prompting this appeal.

For good reason, district courts are afforded discretion in resolving motions to 

intervene. Appellate courts should generally avoid micromanaging district courts in such 

matters. But this is not your run of the mill intervention case. Here, the district court 

excluded from its analysis the express policy of North Carolina as reflected in its 

democratically-enacted statutes. Although federal courts need not completely defer to that 

public policy decision, the district court cannot fail to give the State’s choice any weight.

The district court also applied the incorrect legal standard, extending the heightened 

burden of a “strong showing” of inadequacy to circumstances where, until today, it did not 

apply. For both of these reasons, I would vacate the district court’s order denying 

intervention and remand so that the district court can consider the requested intervention, 

evaluating all relevant factors, under the proper legal standard. 

I.

In 2018, the North Carolina General Assembly ratified Senate Bill 824, titled “An

Act to Implement the Constitutional Amendment Requiring Photographic Identification to 

Vote” (“S.B. 824”), which established, among other things, photographic voter 
56

identification requirements for elections in North Carolina. Governor Roy Asberry Cooper, 

III, vetoed the bill, explaining that requiring “photo IDs for in-person voting is a solution 

in search of a problem.” J.A. 128. Governor Cooper went on to state that “the fundamental 

flaw in the bill is its sinister and cynical origins: It was designed to suppress the rights of 

minority, poor and elderly voters. The cost of disenfranchising those voters or any citizens 

is too high, and the risk of taking away the fundamental right to vote is too great, for this 

law to take effect.” J.A. 128. 

The Senate and House voted to override the veto. Thus, S.B. 824 was enacted as 

North Carolina Session Law 2018-144. The day after it was passed, the NAACP sued

Governor Cooper; the Chair of the North Carolina Board of Elections; the Secretary of the 

North Carolina State Board of Elections; and seven other members of the North Carolina 

State Board of Elections2 (the “State Defendants”) challenging the validity of S.B. 824. In 

its complaint, the NAACP contends that S.B. 824 has a disparate impact on African 

American and Latino citizens of North Carolina in violation of Section 2 of the Voting 

Rights Act of 1965, 42 U.S.C. § 1973, as well asthe Fourteenth and Fifteenth Amendments 

to the United States Constitution. 

Relevant here, in challenging S.B. 824, the NAACP sued the Governor—who 

publicly and aggressively opposed the bill—and the State Board of Elections—which is 

made up of members appointed by the Governor. As a result, the parties defending S.B. 

2 Because the State Board was reconstituted to consist of five governor-appointed 

members after the complaint was filed, those members were substituted as parties to the 

action in the district court as reflected in the district court’s order.
57

824 were parties with a historical opposition to the law or entities under the indirect control 

of such parties. Further, the Attorney General tasked to represent the State Defendants has 

a similar history of opposing North Carolina’s voter ID laws. For example, in early 2017, 

Attorney General Josh Stein moved to dismiss a petition to the United States Supreme 

Court in North Carolina v. North Carolina State Conference of NAACP, a suit regarding 

the North Carolina voting law passed in 2013. See North Carolina v. N.C. State Conf. of 

NAACP, 137 S. Ct. 1399 (2017). He also issued a press release that same day stating that 

he supported “efforts to guarantee fair and honest elections, but those efforts should not be 

used as an excuse to make it harder for people to vote.” J.A. 142. From a perception 

standpoint, the action bore the hallmarks of a friendly suit.

In January 2019, the Leaders moved under Federal Rule of Civil Procedure 24 to 

intervene on behalf of the North Carolina General Assembly to oppose the NAACP’s

challenges to S.B. 824. Seeking to intervene as a matter of right under Rule 24(a) and, 

alternatively, permissively under Rule 24(b), the Leaders argued that state law, specifically 

N.C. Gen. Stat. § 1-72.2(a) and (b), expresses the public policy of the State of North 

Carolina that the President Pro Tempore of the Senate and the Speaker of the House 

represent the State of North Carolina in defense of its statutes. They further argued that 

N.C. Gen. Stat. § 1-72.2 requests that federal courts permit their intervention to adequately 

represent the State and General Assembly’s interests where the constitutionality of statutes, 

like S.B. 824, is challenged. The State Defendants neither consented nor objected to the 

motion to intervene, while the NAACP opposed the requested intervention. 
58

In June 2019, the district court denied the motion to intervene, largely concluding 

that the State Defendants were represented by the Attorney General, who under North 

Carolina law, is charged with representing the State in defense of its existing laws, that the 

State Defendants had not abdicated their responsibility to defend S.B 824, and that, 

accordingly, the Leaders failed to make the requisite “strong showing of inadequacy” to 

overcome the presumption of adequate representation. The district court’s denial was 

without prejudice and invited a renewed motion if the Leaders could show that the State 

Defendants no longer intended to defend the lawsuit and the requirements for intervention 

were otherwise satisfied. While denying the motion to intervene, the district court allowed 

the Leaders to participate in the action by filing amicus curiae briefs.

Six weeks later, in July, the Leaders filed a renewed motion to intervene, arguing 

that it was apparent that the State Defendants would not fully defend S.B. 824. In 

November, the district court denied the renewed motion. The court concluded that its 

previous Rule 24 analysis, as set forth in its initial order, remained “the law of this case,” 

focusing on whether the Leaders presented newly available evidence demonstrating that 

the State Defendants declined to defend this lawsuit. J.A. 3239, 3241. It then evaluated the 

Leaders’ new allegations, determining they did not involve any new evidence. The district 

court thus denied the renewed motion to intervene, this time with prejudice, and reiterated 

that the Leaders could participate in the action by filing amicus curiae briefs. 

On November 11, 2019, the Leaders filed a notice of appeal from the order denying 

their renewed motion to intervene. 
59

II.

We review the denial of a motion to intervene for abuse of discretion. In re Sierra

Club, 945 F.2d 776, 779 (4th Cir. 1991). But while our review is deferential, we still must 

ensure that the district court included the relevant factors in its intervention analysis. See

Hill v. W. Elec. Co. Inc., 672 F.2d 381, 387 (4th Cir. 1982) (“[W]e think the court failed to 

consider or gave insufficient weight to another factor possibly militating in favor of 

intervention.”). Another of our responsibilities is to ensure that intervention decisions are 

not based on incorrect legal principles. See Stuart v. Huff, 706 F.3d 345, 349–50 (4th Cir. 

2013); see also Feller v. Brock, 802 F.2d 722, 729–30 (4th Cir. 1986) (finding that denial 

of intervention as of right to apple pickers was reversible error and admitting intervenors 

as parties-defendant); Hill, 672 F.2d at 385–86, 392 (remanding action for proper 

consideration of the motion for permissive intervention because the district court did not 

properly apply legal standards). Here, the district court erred in both respects. It first 

ignored North Carolina’s law requesting two agents in cases challenging the 

constitutionality of its duly-enacted statutes. And then it compounded the error by setting 

the bar for the Intervenors to clear too high.

III.

Federal Rule of Civil Procedure 24 permits two types of intervention: intervention 

as a matter of right under subsection (a) and permissive intervention under subsection (b). 

The Leaders first claim that they are entitled to intervene as a matter of right. They 

alternatively claim they should be able to intervene permissively.
60

A.

Rule 24(a)(2) allows intervention as of right when the movant 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 the movant’s interest is adequately represented by existing 

parties. Fed. R. Civ. P. 24(a)(2). There are three requirements for intervention as of right.

“[T]he moving party must show that (1) it has an interest in the subject matter of the action, 

(2) disposition of the action may practically impair or impede the movant’s ability to 

protect that interest, and (3) that interest is not adequately represented by the existing 

parties.” Newport News Shipbuilding and Drydock Co. v. Peninsula Shipbuilders’ Ass’n,

646 F.2d 117, 120 (4th Cir. 1981). Although the Majority’s decision is limited to the 

adequacy requirement, I will consider all three.3

3 The Majority concludes that our jurisdiction over this appeal is limited to the 

district court’s narrow focus in its second order denying intervention on the application of 

Rule 24(a)(2)’s adequacy prong to the Attorney General’s defense of S.B. 824. Maj. Op. 

at 20. I do not find our jurisdictional focus to be as narrow as the Majority. The district 

court’s June 2019 order, which denied the initial motion to intervene without prejudice,

should not be regarded as an appealable final order. In addition to being issued without 

prejudice, the order did not outright deny the motion to intervene and invited the Leaders 

to file a renewed motion. Thus, in my view, it was not sufficiently final to trigger immediate 

review. In contrast, the second order was a final order. Importantly, the second order relied 

on the reasoning from the first order and, in doing so, signified that the first order “should 

continue to govern the same issues in subsequent stages in the same case.” See Christianson 

v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (quoting Arizona v. California, 

460 U.S. 605, 618 (1983)). The court then denied the Leaders’ motion with prejudice. For 

those reasons, I would find that the second order, including its analysis and reference to 

the earlier order, was sufficiently conclusive for appellate review. See Hodgson v. United 

Mine Workers of Am., 473 F.2d 118, 126–27 (D.C. Cir. 1972) (“We are satisfied that the 

June 20 order . . . constituted a fresh evaluation of the intervention application, well within 
61

1.

A party seeking to intervene must have “an interest relating to the property or 

transaction that is the subject of the action . . . .” Fed. R. Civ. P. 24(a)(2). The district court 

found that the Leaders lacked a sufficient interest because the Executive State Defendants 

had not completely abdicated their responsibility to defend S.B. 824. J.A. 378 (holding that 

“because State Defendants in this action are presently defending the challenged legislation 

and have expressed no intention to do otherwise, [the Leaders] have failed to demonstrate

that they have a significantly protectable interest in likewise defending the constitutionality 

of S.B. 824 sufficient to warrant a right to intervene under Rule 24(a)(2)”). This analysis 

disregards the North Carolina law requesting federal courts permit the General Assembly 

to defend state statutes in federal court. 

Rather than look to the North Carolina law, the district court relied on cases finding 

that individual legislators lack a sufficient protectable interest to intervene in litigation over 

statutes for which they voted. As a general principle, I agree. But that is not what we have 

the discretionary power of the District Court to make, and amenable to review on the merits 

by this court.”). 

Additionally, the Majority’s view of our jurisdiction has a decided impact on what 

part of its opinion constitutes binding precedent going forward. The Majority’s decision 

concerning jurisdiction effectively resolves the first two requirements against the Leaders. 

Consequently, while its jurisdictional analysis is binding precedent of this Circuit, the 

Majority’s subsequent discussion of the adequacy issue, properly construed, is dicta and

not binding in future cases. See Pittston Co. v. United States, 199 F.3d 694, 703 (4th Cir. 

1999) (“Dictum is [a] ‘statement in a judicial opinion that could have been deleted without 

seriously impairing the analytical foundations of the holding—that, being peripheral, may 

not have received the full and careful consideration of the court that uttered it.’” (quoting 

United States v. Crawley, 837 F.2d 291, 292 (7th Cir. 1988)). 
62

here. The Leaders rely not only on their general position as legislators, but also on N.C. 

Gen. Stat. § 1-72.2. Under the statute, in any action in federal court challenging the validity 

or constitutionality of an act of the General Assembly or a provision of the North Carolina 

Constitution, “[i]t is the public policy of the State of North Carolina that . . . the General 

Assembly, jointly through the Speaker of the House of Representatives and the President 

Pro Tempore of the Senate, constitutes the legislative branch of the State of North Carolina; 

the Governor constitutes the executive branch of the State of North Carolina; [and] that, 

when the State of North Carolina is named as a defendant in such cases, both the General 

Assembly and the Governor constitute the State of North Carolina . . . .” N.C. Gen. Stat. 

§ 1-72.2(a) (emphasis added). It goes on to request that a federal court presiding over an

action where the State of North Carolina is a named party allow both the legislative branch 

and the executive branch of the State of North Carolina to participate as a party in such an 

action. Id.

Importantly, this statute does not limit the role of the General Assembly to instances 

in which the executive branch declines to defend or participate in the action. Of course, as 

the district court noted in its initial order, § 1-72.2 only requests that a federal court allow 

the legislative branch to participate. The requirements of Rule 24(a)(2) must still be 

satisfied. But statutes of a separate sovereign that express the state’s interest and role in the 

litigation cannot be cast aside and excluded from the merits of the intervention decision. In 

other words, while this North Carolina statute does not mandate federal intervention, it sets 

forth the nature of the state’s interests.
63

Neither the Supreme Court nor this Court has imposed the standard followed by the 

district court—that the Attorney General must decline to defend the lawsuit in order to 

trigger a protectable interest on the part of the Leaders. In fact, Supreme Court 

jurisprudence, while perhaps not squarely on point, suggests the opposite. 

In Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019), the 

Supreme Court addressed whether the Virginia House of Delegates and its Speaker had, as 

intervenors, standing to appeal to defend Virginia’s redistricting plan after the 

Commonwealth of Virginia announced it would not file an appeal to the Supreme Court. 

Bethune-Hill, 139 S. Ct. at 1950. The Commonwealth moved to dismiss the House’s appeal 

for lack of standing. The Supreme Court granted that motion and dismissed the appeal. The 

Court held that the “House, as a single chamber of a bicameral legislature, has no standing 

to appeal the invalidation of the redistricting plan separately from the State of which it is a 

part.” Id. But while holding that the House lacked standing there, Bethune-Hill also 

emphasized “a State has standing to defend the constitutionality of its statute.” Id. at 1951 

(citation omitted). “[A] State must be able to designate agents to represent it in federal 

court,” and “if the State had designated [a legislative branch] to represent its interests . . . 

the [legislative branch] could stand in for the State.” Id. (citation omitted). That choice, the 

Court explained, “belongs to Virginia.” Id. at 1952. While in that case, Virginia had chosen 

to speak only with “a single voice,” that of the executive, nothing in the opinion suggested 

it could not have dual agents. Id. Indeed, the main point from Bethune-Hill is that states 

have great deference in deciding who represents their interests. Id. at 1952. 
64

The Supreme Court’s guidance in Bethune-Hill is consistent with its earlier decision 

in Hollingsworth v. Perry, 570 U.S. 693 (2013). There, the Court held that “the Speaker 

and the President, in their official capacities, could vindicate that interest in federal court 

on the legislature’s behalf,” noting that “a State has a cognizable interest ‘in the continued 

enforceability’ of its laws that is harmed by a judicial decision declaring a state law 

unconstitutional.” Hollingsworth, 570 U.S. at 709–10 (citations omitted). And the Court 

further provided that “[t]o vindicate that interest or any other, a State must be able to 

designate agents to represent it in federal court,” because a state is a political corporate 

body that can only act through its agents. Id. at 710 (citing Poindexter v. Greenhow, 114 

U.S. 270, 288 (1885)). “That agent is typically the State’s attorney general. But state law 

may provide for other officials to speak for the State in federal court . . . .” Id.

And here the Leaders represent the entire bicameral legislative branch in North 

Carolina, making this matter comparable to Arizona State Legislature v. Arizona

Independent Redistricting Commission, 135 S.Ct. 2652 (2015). In that case, the Court 

recognized the Arizona legislature’s standing to challenge a ballot initiative threatening its 

authority over redistricting. See also Arizonans for Official English v. Arizona, 520 U.S. 

43, 65 (1997) (“We have recognized that state legislators have standing to contest a 

decision holding a state statute unconstitutional if state law authorizes legislators to 

represent the State’s interests.”).

As the Majority points out, in Bethune-Hill, Hollingsworth and Arizonans for

Official English, the state representative was no longer defending the state or declined to

appeal an adverse ruling. That distinction, to the Majority, means those decisions have little
65

bearing here. I disagree. In emphasizing the principle that a state must be able to designate

its agents to represent it in federal court, none of those decisions limited that principle to

situations where the initial agent was no longer participating in the defense or declined to

appeal an adverse ruling. For example, and most recently, the Supreme Court, in BethuneHill, reiterated the Court’s earlier holding that “a State must be able to designate agents” 

for representation in federal court. Bethune-Hill, 139 S. Ct. at 1951 (quoting Hollingsworth, 

570 U.S. at 710). Relevant here, the Court referenced “agents”—plural not singular, 

without further limitation. See id. Thus, I would not impose on these Supreme Court 

decisions a limitation not imposed by the Court itself. 

Finally, in determining that the Leaders lacked a sufficient interest in the S.B. 824 

litigation, the district court also found the Leaders’ reliance on the Supreme Court case 

Karcher v. May, 484 U.S. 72 (1987), misplaced. The district court reasoned that the issue 

before the Supreme Court there was whether public officials, who participated as 

intervenors in their official capacities, could continue to appeal an adverse judgment after 

leaving office—an issue that the district court indicated is not present here. Respectfully, 

the district court reads Karcher too narrowly. Karcher also confirmed that “[t]he authority

to pursue the lawsuit on behalf of the legislature belongs to those who succeeded [the 

legislators] in office.” Id. at 77. Although the issues presented here may not be identical to 

those presented there, Karcher reiterates the role that active legislators play in defending a 

lawsuit depends on a particular state’s law, which is an issue relevant to the interests 

asserted by the Leaders. 
66

Bethune-Hill, Hollingsworth, Arizona State Legislature and Karcher4 indicate that

the determination of the sufficiency of the interests of the Leaders in this litigation requires

a careful consideration of N.C. Gen. Stat. §1-72.2(a). In my view, the district court failed 

to do this. Although it cited the statute in full in its first order, its only discussion of the 

statute in relation to the question of the Leaders’ interests was mentioning how the statute 

only requested that a federal court allow intervention. That is, of course, true as far as it 

goes. But that brief discussion does not go to the merits of the Leaders’ interest in the case. 

Even though the North Carolina statute does not require that the Leaders’ motion be 

granted, that statute bears on the merits of the intervention decision. 

And this is the case even if you follow the Majority’s view that we may only review 

the second order. When the district court issued its initial order, it lacked the benefit of 

Bethune-Hill. But its second order addresses Bethune-Hill, even if only in a footnote, 

stating, without analysis, that Bethune-Hill does not “change the calculus.” J.A. 3241. The 

second order also cites N.C. Gen. Stat. §1-72.2(a). Despite Bethune-Hill’s guidance, 

however, the district court only refers to the statute a single time, stating that it is “far from 

clear whether [the Leaders] are authorized to intervene when the State Board and Attorney 

General are already defending a suit in federal court.” Id. Importantly, just as it failed to 

analyze Bethune-Hill, the district court failed to analyze the North Carolina statutes, 

4 Although these decisions primarily focus on standing, the issues presented overlap 

with the question of the movant’s interests in the litigation under Rule 24(a)(2). See 

generally Hollingsworth, 570 U.S. at 710 (noting the legislature’s authority to represent 

the state’s interests).
67

concluding that it did not have to do so as long as the State Board and Attorney General 

were defending the suit. Once again, it is not our job to micromanage how the district court 

weighs the relevant factors in the intervention analysis. But it is our job to ensure that 

relevant factors, one of which here is §1-72.2(a), are not excluded from the analysis. I 

would remand the case to the district court to consider the North Carolina statute in the 

analysis of the Leaders’ interest in the litigation—with particular attention to the Supreme 

Court’s instructions that the state may choose its agents to defend its statutes in federal 

court and that the North Carolina statute does so here.

2.

Having found no protectable interest, the district court predictably found the 

Leaders failed to satisfy Rule 24(a)’s second requirement—whether the disposition of this 

case would practically impair or impede their ability to protect their interest absent 

intervention. As a remand is needed to address the Leaders’ alleged protectable interest, 

remand is also necessary to address this second requirement. 

3.

Finally, I turn to adequate representation—the third requirement for intervention as 

of right. On this issue, the Leaders complain the State Defendants have consistently failed 

to adequately defend North Carolina’s voter identification legislation. They argue that the 

State Defendants’ efforts have been less than rigorous in Holmes, the parallel state court 

case, which, according to Leaders, is consistent with the State Defendants’ withdrawal of 

a viable petition for certiorari to the Supreme Court in litigation over North Carolina’s prior 

voter identification law. Further, the Leaders argue the State Defendants have continued 
68

this pattern since the order denying intervention. Specifically, the State Defendants elected 

not to call expert witnesses at the hearing on the preliminary injunction over the 

implementation of S.B. 824 and have represented that they will not call experts at the trial. 

In addition, the Governor has filed an amicus brief in support of the NAACP regarding the 

appeal of the preliminary injunction issued by the district court. Finally, the Leaders point 

to the public comments of the Governor and Attorney General described above. They claim 

this record reveals an adversity of interest with the State Defendants which satisfies Rule 

24(a)’s inadequacy requirement. 

The district court, as noted above, determined that the Leaders had not made a 

sufficient showing of inadequacy. While we afford district courts discretion in resolving 

motions to intervene, a court necessarily abuses its discretion when it applies the wrong 

legal standard to evaluate adequacy and when it excludes pertinent factors from 

consideration. Here, the district court did both. 

a.

Beginning with the legal standard for adequacy, the district court initially

acknowledged that a would-be intervenor generally bears a minimal burden of showing 

inadequacy of representation by an existing party. See Trbovich v. United Mine Workers, 

404 U.S. 528 (1972). But it also applied a presumption of adequacy from our 

Commonwealth of Virginia v. Westinghouse Electric Corporation, 542 F.2d 214, 216 (4th 

Cir. 1976) decision that arises when a party seeking intervention has the same ultimate 

objective as a party to the suit. Under that presumption, the proposed intervenor must 

establish one of three factors—adversity of interest, collusion or nonfeasance—to 
69

overcome this presumption and meet the inadequacy requirement. The district court 

identified those three factors and attempted to apply them in its order.

The district court then concluded its adequacy analysis by holding “[the Leaders] 

have failed to sustain their burden of demonstrating the requisite ‘strong showing of 

inadequacy’ to overcome the presumption of adequate representation by State Defendants 

and their counsel, the Attorney General.” J.A. 386 (emphasis added). In using the phrase 

“strong showing of inadequacy,” the district court added a heightened burden to overcome 

the Westinghouse presumption. In imposing that heightened burden, it cited our decision 

in Stuart v. Huff, 706 F.3d 345 (4th Cir. 2013), which requires intervenors to “mount a 

strong showing of inadequacy” where defendants are represented by a government agency. 

Stuart, 706 F.3d at 352. 

I disagree that the Leaders needed to overcome that presumption by the heightened 

standard of a “strong showing.” See Trbovich, 404 U.S. at 538 n.10. That heightened 

standard from Stuart does not, and should not, apply here. 

In Stuart, abortion-services providers sued state officials over a North Carolina 

statute restricting abortions. 706 F.3d at 347. A group of pro-life medical professionals and 

others sought to intervene claiming the state defendants would not adequately protect their 

interests. Thus, we addressed whether “to permit private persons and entities to intervene 

in the government’s defense of a statute . . . .” Id. at 351 (emphasis added). We held that, 

in such a situation, “the putative intervenor must mount a strong showing of inadequacy” 

in the context of those private persons and entities on the basis of government entities’ duty 

to represent the people in public litigation matters. Id. at 352. 
70

We explained two primary reasons for requiring a “strong showing” of inadequacy. 

First, we noted that in the face of a constitutional challenge to its statute, “the government 

is simply the most natural party to shoulder the responsibility of defending the fruits of the 

democratic process.” Id. at 351. We added “[i]t is after all the government that, through the 

democratic process, gains familiarity with the matters of public concern that lead to the 

statute’s passage in the first place.” Id. Our discussion distinguished between the 

government and private citizens. And it is eminently reasonable to make that distinction. 

But in Stuart, we did not distinguish between different officials or branches of the 

government, and to do so now would not be reasonable. With no intent to disparage the 

Attorney General, I see no reason he is either the “most natural” agent to defend S.B. 824—

a law that he has publicly opposed— or is more familiar with the matters of public concern 

that led to its passage in the first place as opposed to the Leaders. If anything, it would be 

more natural for the agents of the government that supported passage of the statute to 

defend its constitutionality than those who openly opposed it. That, of course, is a judgment 

best left to states. And when, like here, the state makes such a judgment, it must be 

considered when determining whether to permit intervention in a federal lawsuit 

challenging a state statute like S.B. 824. 

Second, we noted that “to permit private persons and entities to intervene in the 

government’s defense of a statute upon only a nominal showing would greatly complicate 

the government’s job.” Id. That makes sense. Allowing private citizens party status in a 

state’s defense of its laws raises a host of concerns ably identified in Stuart. But this, of 

course, is not a case where a member of the public is seeking to intervene in the 
71

government’s defense. The Leaders here, like the State Defendants, are representatives of 

the State of North Carolina. In fact, they have been designated by that State as its agents 

for defending the constitutionality of North Carolina’s laws. And while one might argue 

that allowing a second governmental entity to intervene to represent North Carolina 

complicates the government’s job, any such complication is its own doing. When, as here, 

a state passes a statute designating its agents for defending the constitutionality of its laws, 

it is not for us to second guess that decision.

Stuart was, and remains, an important decision. Nothing I say here is intended to 

suggest otherwise or to in any way carve back its application. But the “strong showing” 

standard it imposed was for situations in which private litigants seek to intervene in the 

government’s defense. The reasons set forth in Stuart for requiring a “strong showing” of 

inadequacy simply are not present here. Thus, Stuart does not govern and should not be 

expanded. That does not mean the Leaders’ motion should be granted. It just means it 

should not be saddled with the heightened burden of making a “strong showing.”

The Majority, in concluding that Stuart should be extended, relies in part on the 

Seventh Circuit’s decision in Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793 

(7th Cir. 2019). And Kaul does, in fact, impose a heightened burden—one requiring a 

proposed intervenor to establish gross negligence or bad faith—to overcome the 

presumption of adequacy that circuit applied when a state attorney general was defending 

the constitutionality of a law. Id. at 801. In fact, the burden it imposes is more onerous than 

that required under Stuart. But with respect to the Majority and our sister circuit, I find the 

burden Kaul applied is too far removed from the text of Rule 24 to be persuasive. After all, 
72

the Rule itself imposes no presumption. In my view, any judicially created presumption 

should be undertaken with care. And I respectfully disagree with the Majority’s suggestion 

that Kaul aligns with our Stuart decision. Following Kaul would extend Stuart beyond its 

context of a private citizen seeking to intervene to defend the constitutionality of a state 

law and impose, without justification, a heightened burden not found in Rule 24. 

Further, I find the reasoning of Kaul puzzling. There, the Seventh Circuit left no 

doubt that it would defer to the Legislature if it were to designate one agent to represent 

the state regardless of which entity it was. In fact, the Seventh Circuit said it could “see no 

reason why a federal court would bat an eye if a state required its attorney general to 

withdraw from his representation and allow another entity, including a legislature, to take 

over a case.” Kaul, 942 F.3d at 802. It would not, however, defer to a statute that called for 

the Legislature to litigate alongside the Attorney General. But in Bethune-Hill, 

Hollingsworth, Arizona State Legislature and Karcher, the Supreme Court has made clear 

that states should be able to select their agents to defend the constitutionality of their laws 

and here we have statutory language that gives the North Carolina General Assembly final 

decision-making authority with respect to the defense of a challenged act. See N.C. Gen. 

Stat. Ann. § 120-32.6. That said, I see no reason we should have any more of a problem 

with a state selecting two representatives than with it selecting one. The key point is that it 

is the state’s choice. 

Kaul also contends a heightened burden is needed to avoid drawing the district 

courts into an “intractable procedural mess that would result from the extraordinary step of 

allowing a single entity, even a state, to have two independent parties simultaneously 
73

representing it.” Id. at 801. I agree that having two independent parties representing a state 

is unusual. But in my view, it is going too far to impose a heightened burden based on that 

risk. After all, district courts are afforded broad discretion to utilize the many options 

available to it to handle complex procedural matters. And they do this all the time with 

situations no less complex than what we have here. I am convinced that district courts 

possess the necessary tools to address any complexities arising from the state’s decision to 

have more than one representative defending the constitutionality of its laws.5

For all of these reasons, I would not extend Stuart’s heightened burden of a strong 

showing of inadequacy to the situation presented here. 

b.

But if the Leaders need not satisfy the heightened standard of a strong showing, 

what is the proper standard? To answer that question, I return to Westinghouse. There, we 

indicated the standard for establishing inadequacy generally was the minimal burden set 

forth by the Supreme Court in Trbovich. Westinghouse, 542 F.2d at 216. As already noted, 

we then held that if the proposed intervenor seeks the same ultimate relief as an existing 

party, the proposed intervenor must show either adversity of interest, collusion or 

malfeasance. Id. But while our Westinghouse decision concludes that a proposed intervenor 

seeking the same ultimate relief as an existing party must show one of those three factors, 

it does not hold or even suggest any change from the minimal burden of establishing those 

5 Consistent with my view, after the panel granted the Leaders’ motion to intervene 

in the appeal, North Carolina’s two representatives divided oral argument time and 

allocated the various positions in a way that created no undue burden on us. 
74

factors. Thus, in my view a remand is needed so that the district court can evaluate whether 

the Leaders have established adversity of interest, collusion or malfeasance using the 

“minimal” burden standard of Trbovich. Trbovich, 404 U.S. at 538 n.10 (noting that the 

requirement of Rule 24 is satisfied if the applicant shows that representation of his interest 

may be inadequate and noting that the burden of making that showing is minimal); 

Westinghouse, 542 F.2d at 216 (“[A]ppellant’s burden of showing an inadequacy of 

representation is minimal.”).

c.

Having described the proper standard for evaluating adequacy, I turn to the pertinent 

factors the district court should consider in applying this standard. Using the standard 

outlined above, the district court should consider the evidence presented by the parties, as 

well as N.C. Gen. Stat. § 1-72.2. 

The district court did not consider §1-72.2 in its adequacy analysis. But in enacting 

that statute, North Carolina has expressed its desire for the Leaders to represent it in 

litigation like the case before us. Implicit in that expression is the state’s belief that, without 

the involvement of the Leaders, it will not be adequately represented. North Carolina, in 

enacting the statute, made the predictive judgment that there will be cases where the 

Executive Branch will not adequately represent its interests. And without stating one way 

or the other as to whether the Leaders should prevail, the public comments of the Governor 

and the Attorney General, and the other information they allege, are sufficient to require 

the statute to be considered. To be clear, this statute should not and does not automatically 
75

satisfy the Rule 24(a) intervention requirements. But it does bear on the adequacy analysis

and, thus, must be considered.

B.

Last, the district court also denied the Leaders’ alternative request for permissive 

intervention. But it erred in doing so without even considering the North Carolina statute 

requesting that the General Assembly be permitted to intervene. 

Permissive intervention contemplates intervention upon timely application “when 

an applicant’s claim or defense and the main action have a question of law or fact in 

common.” See Newport News Shipbuilding & Drydock Co., 646 F.2d at 118 n.1. “If 

intervention of right is not warranted, a court may still allow an applicant to intervene 

permissively under Rule 24(b), although in that case the court must consider ‘whether the 

intervention will unduly delay or prejudice the adjudication of the original parties’ rights.’” 

Stuart, 706 F.3d at 349 (quoting Fed. R. Civ. P. 24(b)(3)).

Of note, the district court expressed concern with the potential for delays, which 

could result from adding the Leaders as parties, and with the additional burdens on the 

court and potential prejudice to the NAACP. And our appellate review of those concerns

is deferential because “Rule 24’s requirements are based on dynamics that develop in the 

trial court . . . .” Id. at 350. The trial court, in its broad discretion, is thus well positioned to

evaluate those requirements. But “[w]hile the efficient administration of justice is always 

an important consideration, fundamental fairness to every litigant is an even greater 

concern.” Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 974 F.2d 450, 470 (4th Cir. 

1992). And “liberal intervention is desirable to dispose of as much of a controversy 
76

‘involving as many apparently concerned persons as is compatible with efficiency and due 

process.’” Feller, 802 F.2d at 729 (quoting Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir.

1967)).

In denying permissive intervention, the district court failed to even consider N.C. 

Gen. Stat. § 1-72.2. Given the import of that statute as discussed above, it should have done 

so in deciding how to exercise its discretion. Rule 24(b)(3) does not impose a limitation on 

what may be considered. Again, without suggesting an outcome or the weight the statute 

or other factors should be afforded, I would remand the case for consideration of the 

permissive intervention request.

IV.

For the above-stated reasons, I respectfully dissent.