PHILIP E. BERGER, ET AL., Petitioners, v. NORTH CAROLINA STATE CONFERENCE OF THE NAACP, ET AL., Respondents
Interviewer(s): Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Brett M. Kavanaugh, Amy Coney Barrett, Sonia Sotomayor
Interviewee(s): Sarah Boyce, David H. Thompson, Elisabeth S. Theodore

John G. Roberts, Jr.: We'll hear argument next in Case 21-248, Berger against North Carolina State Conference of the NAACP. Mr. Thompson.

David H. Thompson: Mr. Chief Justice, and may it please the Court: North Carolina law designates the state as necessary parties -- the state -- the Petitioners as agents of the state and as necessary parties in all actions challenging state statutes.

When such actions are filed in state court, the Petitioners are defendants and necessary parties.

This lawsuit, however, was filed in federal court, and when the Petitioners sought to intervene, they were denied and a strong presumption was applied against their intervention. This outcome should be reversed for two reasons. First, under Trbovich, we are entitled to intervene.

The State Respondents have candidly and forthrightly acknowledged that they have a primary objective in receiving clear guidance on what law, if any, will need to be enforced, and because that administrative responsibility and interest may not always dictate precisely the same approach to litigation as our interest in defending the law every step of the way, we are entitled to intervene under Trbovich. Second, this case presents foundational issues of federalism.

This Court recently, in Cameron, held there are deep constitutional considerations implicated when a federal court is called to pass upon the constitutionality of a state law, and, thus, a federal court must account for a state designating multiple officials to defend its sovereign interests. There is no basis in this case for a federal court to -- to second-guess a state's decision that it needs a representative exclusively focused on vindicating state law. I welcome the Court's questions.

John G. Roberts, Jr.: You say there's no basis in this case.

Is there a situation where you would think it was appropriate for the federal district court to deny intervention where the state law provided specifically that particular state officers be afforded that right?

David H. Thompson: Well, Your Honor, we'd have to go through the -- the multi-step factors of, number one, Donaldson.

We'd need to make sure it's a significantly protectable interest that was identified. Number two, we'd need to look at Hollingsworth to make sure there was a correct assignment of that agent and creation of that agency relationship. And then, under Trbovich, there would need to be an assessment as to whether there was someone else already in the case that had that identical interest and didn't have another interest that was competing at, tugging at the interest that they were advocating.

John G. Roberts, Jr.: Well, we often see in these cases a, as here, sort of political disagreement between the two purported representatives of the state.

And is there a situation where that is the claim for -- the necessity for intervention? Do you see a situation where that would be second-guessed by the federal court?

David H. Thompson: While -- while I can see, Your Honor, where that could be relevant, here, we don't need to point to Governor Cooper's involvement in the case to win the intervention motion, but we would point out that Governor Cooper has been an implacable foe of this law. And that's not to criticize him. Reasonable people can disagree about contentious issues of public policy, but he has said, at JA 844, to the Fourth Circuit Court of Appeals in this very case, "This unconstitutional law should never go into effect." And he has also claimed for himself the authority to fire each and every member of the Board of State Elections.

So he would not be an adequate representative. Now they say -- my -- my friends on the other side say, well, we have for-cause removal protection, we can't be fired by Governor Cooper.

And we don't think they're right about that, but even if there were -- they were, that would just mean that there are unaccountable, unelected officials in charge of this paramount interest.

Sonia Sotomayor: Counsel, two things.

One is what do you do with Wallace v. Bone, a North Carolina supreme court case that says the state legislature cannot represent the state? And I thought that that was the basis of the governor's claim that the law was unconstitutional -- that this representative law was unconstitutional. And, two, I still don't understand what the conflict here is.

The Attorney General has said -- and it's not the Governor -- that the Attorney General is representing the state board.

Both the state board and the Governor and the Attorney General have taken the position that this law is, A, constitutional, the same position you're taking.

So where is the conflict? Other than litigation strategy issues, where is the -- identify it for me.

David H. Thompson: Okay.

I'll take those in order if I may. First, with respect to Wallace versus Bone, that plays upon my friend's separation of powers argument.

There were only two judges on the Fourth Circuit Court of Appeals who addressed that, Judge Quattlebaum and Judge Richardson, and at Pet. App. 102, we can see them give it short shrift, and with good reason, because Wallace versus Bone was a case in which there was a clear executive power being -- tried to be kept by the legislature, issuing permits, denying permits.

The other cases they cite to, the legislature is trying to spend -- excuse me -- money.

And in Martin versus Thornburg, the North Carolina supreme court clearly said there is a distinction between defending a law and executing a law. In addition, their separation of powers argument proves too much because, if it were right, then even if the Attorney General weren't defending the law, we still wouldn't be allowed in. So that's what I would say about that.

Sonia Sotomayor: That -- that's not -- no, that's not what their point is.

I think, if the Attorney General wasn't defending the law, there'd be another case.

That's what the court below said.

It would be a different case if the Attorney General refused to defend the law.

David H. Thompson: Well, but the logic, Your Honor, of their position is that this is an inherent executive power.

Sonia Sotomayor: But the problem with your decision -- your position is that if North Carolina's law said every member of the legislature has a right and must be made a party to defend the state or to defend the interests of the state, then a federal court would be bound by 50, 100 legislators coming in and participating in the -- in the litigation. Isn't that your point?

David H. Thompson: No, Your Honor, that's not our point.

Our point is that the first legislator to show up -- if North Carolina law said any of the 170 members of the General Assembly can come in and be an adequate representative and focus exclusively on defending state law, then the first person to show up would be -- in our view, would then -- going back to the text of Rule 24, would be the adequate representative of that interest.

Sonia Sotomayor: But tell me of what interest.

The interest is upholding the law.

David H. Thompson: Yeah.

Sonia Sotomayor: And the finding here was that the Attorney General has the similar interest.

It's taking the same position.

David H. Thompson: Well --

Sonia Sotomayor: So why is the Attorney General inadequate to represent the same interest the legislators have in protecting the constitutionality of the law?

David H. Thompson: Well, Rule 24 focuses on parties, not on lawyers.

So the Attorney General's role here is not critical.

What's critical is that the parties are the members of the state Board of Elections, and they have announced, at Joint Appendix page 203, that they have a primary objective of receiving clear guidance on what law, if any, will need to be enforced. And that's an administrative responsibility.

And the Court asked me where is there the conflict, and we can see the conflict quite clearly at JA 366, Footnote 8. There, in the run-up to the March 2020 primary, there was a flagrant violation of the Purcell principle.

The middle district of North Carolina, to hear their rendering, while voting was going on, changed the rules.

And that's not right.

There was a small window of time before voting started. But the bottom line is there was a flagrant violation of the Purcell principle with the rules being changed, and they have admitted that they did not seek a stay because of their administrative responsibilities, their concern about administrative convenience and ensuring that the election went smoothly. And so that's an instance in which these two interests --

Sonia Sotomayor: Didn't the state -- in the state court litigation, the same thing happen, and you're present there and you didn't make a motion either, did you?

David H. Thompson: For two reasons, Your Honor, a factual reason and a legal reason. Factually, we did not because the preliminary injunction had been issued by the federal district court on December 31, 2019. The adverse state court ruling was a couple of months later in February of 2020. And so, if we had run into state court and tried to seek a stay of -- of that second injunction, it would have been totally futile and -- and pyrrhic a victory because we were still enjoined by the middle district of North Carolina --

Sonia Sotomayor: It was your --

Elena Kagan: Mr. --

Sonia Sotomayor: -- it was your trial strategy.

David H. Thompson: No, it -- it would have been pyrrhic.

There would have been no purpose to doing it because they had already decided to allow the preliminary injunction to stay in place.

In addition, there's a legal difference too, which is there's a dispute as to whether the Purcell principle applies to state court judges and there's no dispute that it applies to federal court judges.

Elena Kagan: Mr. Thompson, could -- could I take you back to something that you said to Justice Sotomayor? She said, well, what if state law gave every legislator a -- a right to intervene or status as a necessary party, what have you? And you said, no, that would go too far.

It just has to be one. Is that -- is that correct?

David H. Thompson: Yes, Your Honor.

Elena Kagan: And why is that? I mean, suppose there is some -- something in between.

Suppose that there was a law passed in North Carolina that says, well, you know, the Senate might flip parties every day, so we need both the head of the Senate and the head of the House. And then suppose there's somebody writing the statute and says: Actually, we also need the relevant heads of the committees there, you know, we need the head of the relevant House committee and the head of the relevant Senate committee. I mean, you get the idea.

It's like, why is it just one? Why -- if -- if -- if we're deferring to state understandings of their own interests and the state says, actually, we need five people here, you know, why would we not say on your theory, well, then we have to have five people here?

David H. Thompson: I think it's important to understand the role of state law and federal law in all of this.

And, here, we're dealing with interests that are grounded in federal law. They flow from constitutional considerations identified in Cameron and they are reflected in the Federal Rules of Civil Procedure.

Federal Rule 5.1 reflects the paramount interest in defending a state law. Federal Rule of Civil Procedure 24(b)(2) reflects the interest in administering a law. Those are the two interests we have here.

They're not created by the state -- by state law.

And so any hypothetical about, well, if the state tries to create other interests is not implicated by this case, because these are federal law interests in the same way in Trbovich it was a federal law interest, in Kaufman, it was a --

Elena Kagan: So the only rule you're advocating for is a rule that says one legislator has to be at the table in the suit?

David H. Thompson: One adequate representative.

And if it's an interest that is -- is significantly protectable under Donaldson and certainly an interest that's recognized in the Federal Rules of Civil Procedure we would -- we would submit is -- is significantly protectable, then we should be entitled.

Elena Kagan: And is there --

Amy Coney Barrett: And --

Elena Kagan: -- a difficulty --

Amy Coney Barrett: No, go ahead.

Elena Kagan: Is there a difficulty for you? I mean, if you had come in the second time and said the same thing as the first time, basically say, you know, we -- we -- it -- it -- it has to be that there's a legislator here in the suit to represent the specifically legislative interests in the defense of the law because these executive branch people, they have to worry about execution of the law.

We just want a person who all they're worried about is the defense of the -- the law. I mean, it would seem to me that the way you would do that is to say we have a special interest as a legislator, not as the state writ large, right? But you're not making -- I mean, in your second motion, you didn't do that.

You didn't say we have a special interest as a legislator.

You said our interest is the interest of the state writ large. But how could that be? Doesn't -- doesn't the executive branch represent the state writ large?

David H. Thompson: Not under North Carolina law, Your Honor.

The way these statutes work, 120-32.6(b) says that we are deemed to be the state to the same extent as 1-72.2, and that statute says that we are the legislature. And so we've been designated quite clearly as agents of the state, and we've been designated as --

Elena Kagan: But not in replacement of the Attorney General.

I mean, it would be different if you said, no, you know, we're -- we're tired of the Attorney General, the legislators now represent the state.

But you kept the Attorney General going. And in your first intervention motion, you said basically we have a separate interest. It's the interest of the legislature.

And, you know, that makes a fair amount of sense.

It's like, okay, well, that's a different interest. But now you're not saying that. You're -- you're claiming the same interest that the Attorney General has under North Carolina law.

David H. Thompson: Well, under -- well, no, it's not the same interest.

They have an administrative interest that they've made clear at Joint Appendix 203 as their primary objective.

We have a separate interest, and as I've explained, they tug at one another, and we've seen that in this very litigation. In addition, Bethune-Hill came down between our first and our second motion to intervene, and that said that a state must be able to designate its own agents.

And that's what 120-32.6(b) does.

Amy Coney Barrett: Can I ask you about Justice Kagan's questions about how many legislators would have to be present? I just want to be sure I understand where in Rule 24 you're grounding this language. So I take your point that you have a different interest than the Board of Elections because they're interested in executing the election.

You're interested in defending the constitutionality of the law.

There's a tug. Would it be fair to say that your position is that when the interests are different, as they are here, maybe the Trbovich, you know, case casts some light on this question, that it would be rare to find that the existing party is an adequate representative because someone with different interests that are in tension can never adequately represent the intervenor's interests?

David H. Thompson: Well, the -- the test is, under Trbovich, are those interests such that they may not always dictate precisely the same approach to litigation.

In other words, Trbovich teaches that it's a minimal burden. And, here, we've amply satisfied that.

Amy Coney Barrett: I -- I -- I understand that.

But I guess what I'm saying is, if -- I -- I -- I'm -- I'm granting you, I'm saying assuming that you're right that these interests are not perfectly aligned between --

David H. Thompson: Yeah.

Amy Coney Barrett: -- the Board of Elections and you, that it would be very rare to find that your interests could be adequately represented? It's -- it's not even really much of a question because, when the interests are different, the question of adequate representation, it's -- it's just how could you represent that interest in the rule of 24(a) if the interest is a little bit different, potentially in tension with? Is that a fair statement?

David H. Thompson: Yes.

Yes, Your Honor, that's exactly right.

That's the teaching of Trbovich, because nobody was suggesting in Trbovich that the Secretary of Labor was not doing a good job or that he had -- that he -- his interest wasn't at least partly aligned. He was the Petitioners' interest -- lawyer, and he had the exclusive responsibility, the Secretary of Labor did, for challenging the elections.

Amy Coney Barrett: Okay.

So then let me take you to Justice Kagan's question about the, you know, succession of legislators that might come in and try to intervene and maybe state law might even give them that right. Then would your position be that, well, all of those interests are the same, all of those interests are aligned, but, when you have would-be intervenors who have interests perfectly aligned, they all have the interests that you have here, say, in defending the constitutionality of the law, that then there is adequate representation?

David H. Thompson: If the -- well, if the interests are entirely aligned, we can't invoke Trbovich as a basis to intervene.

Amy Coney Barrett: Right.

David H. Thompson: We could point to the fact that, in fact, the representation has not been adequate, and we can point to the fact that we do -- we have a different perspective.

We're a separate co-equal branch of the government. So, in one --

Amy Coney Barrett: But, in Justice Kagan's hypothetical, it was all legislators, say, all from the same branch of the government.

David H. Thompson: Yes.

Amy Coney Barrett: And I'm just trying to ground your answer to Justice Kagan when you said, well, number 1 can get in and numbers 2 through 10 cannot.

David H. Thompson: Yes.

Amy Coney Barrett: I'm asking you would that be because adequate representation would be satisfied, assuming that there weren't these other factors like they're doing a bad job or malfeasance or something?

David H. Thompson: Yes, Your Honor, that's right.

So the first step under the analysis under Donaldson is to identify the interest. Then the second step is to identify whether the entity has been assigned as an agent of the state.

And then the third step is if there are different interests but only if there are different interests do you get to the Trbovich type of analysis. If the interests are identical, then there's adequacy of representation on that metric.

There are different --

Elena Kagan: But are we to defer to the state's understanding of what the interest is? I mean, suppose the state says, you know, we think that the -- that members of the Senate have a different interest than members of the House because they might be led by different parties.

Or suppose that they said, well, members of a particular committee have a different interest than other members.

I mean, there are a variety of things that states could do to define their own interests that are not just there's a legislative interest. And would we defer to the states on that definition -- those more particular definitions of interests so that we could come up with five interests or 10 interests, all of which might be expressed by various kinds of legislators?

David H. Thompson: States can create interests.

We can see that in the text of Rule 24 because it talks about property, it talks about transactions, which would include contracts.

Both of those are the traditional province of state law. But anytime an interest is created or purported to be created, then a federal court has to assess whether, under Donaldson, it's significantly protectable.

But none of that is relevant here because these are federal interests.

These are interests that are created by federal law and that are recognized by --

Brett M. Kavanaugh: What about --

David H. Thompson: -- the state.

Brett M. Kavanaugh: -- what about the answer to her question, though, to Justice Kagan? You're not answering Justice Kagan's question, I don't think.

What about the committees hypothetical?

David H. Thompson: Well, it would be up to the court -- a federal court to -- to decide whether, under Donaldson, that's a significantly protectable interest.

And it would be a totally different case than this one because there's nothing in the Federal Rules of Civil Procedure that recognizes a state's interest in having a member of a committee.

What we're just saying is that there are two interests that are --

Brett M. Kavanaugh: But do you defer to the state law -- to the state on that or defer some to the state, give some weight to the state on that? Or what -- what do you do?

David H. Thompson: Well, state -- states can create the interest, and when we're dealing with a paramount interest that's recognized in the Federal Rules of Civil Procedure, then that should be dispositive. And what states think about it in this case is not relevant because -- and the Court need not address that separate consideration because these are grounded in federal law and recognized by the Federal Rules of Civil Procedure.

And Gasperini and Walker teach that, you know, the -- the federal courts should try to interpret the Federal Rules of Civil Procedure to be consistent with --

Stephen G. Breyer: The Rules of Federal Procedure -- note where it is.

It's under (b), permissive intervention, not what we're talking about, which is intervention of right. All right.

Focusing on that for a second, what is it you want this Court to hold? We are talking about a particular phrase, "unless existing parties adequately represent that interest." And, as you know, most of the federal courts have interpreted that as starting with a presumption that if somebody's there with the same objective, it is adequate.

Now that can be defeated. Now that's what happened here, and that's -- you lost on that.

Very well.

You want us to say when we interpret -- Court, when you interpret those words, "unless existing parties adequately represent," do you want us to say the presumption, weak though it is, of every circuit doesn't apply? Or do you want us to say it doesn't apply just to the states? Or do you want us to say no, you see, every private party often has problems and like to have a lot of people in the case too? And so how do we say just the states? Or do you want us to say the rules are the same, but they didn't apply that presumption thing correctly in this case because we have a bigger interest in intervening than they thought? Now I --

David H. Thompson: The --

Stephen G. Breyer: -- I mention all those difficulties because I have yet another one.

David H. Thompson: Okay.

Stephen G. Breyer: And the last one is, since what you talked about is in (b), permissive intervention, why isn't this a case for permissive intervention?

David H. Thompson: Let me --

Stephen G. Breyer: Suppose we copied your words, how important it is to get the legislature in here, how desperately the state wants it.

Just copy your words and say that isn't enough to change the interpretation of (a), intervention of right, but we think the Court could reconsider (b), permissive intervention, noticing what is there in (b)(2) and dah-dah-dah.

We quote you again. Now I've given you a whole lot of problems that I see in this case if we take your path.

And I also have suggested another path, but it's only a suggestion, and I'm interested in your reaction.

David H. Thompson: Thank you, Your Honor. So we -- the interest that we are trying to vindicate is not referenced in 24(b)(2).

The interest that we are trying to vindicate is the paramount interest identified in Cameron in vindicating state law, and that is recognized in 5.1 of the Federal Rules of Civil Procedure that says that notice has to be given to a state whenever -- so it's not -- this isn't an interest that's under permissive intervention. The court also referenced the fact that we have the same ultimate objective, but that can't be enough every time an intervenor comes in under Rule 24.

You have to pick one side of the "v" or the other.

And -- and there's nothing in the text to suggest that a presumption should apply in that instance.

In Trbovich, the -- there was no presumption of --

Stephen G. Breyer: So your point is treat states differently --

David H. Thompson: Well, Trbovich --

Stephen G. Breyer: -- from private people where the same situation arises?

David H. Thompson: The -- the Court could say treat states differently, but, in Trbovich, it was a private party.

There was no presumption that was applied.

And it's simply not true that all the circuits apply a presumption.

The Ohio Northeast Coalition --

Stephen G. Breyer: Okay.

So is that your point, you want us to say there is no presumption?

David H. Thompson: The Court doesn't have to reach that.

The Court --

Stephen G. Breyer: I know that, but I'm trying to get at what you think would be the best way because, unfortunately, unlike you, I might have the job of approving or writing even the case.

So I'm trying to make my job easier. So I want to know what you --

David H. Thompson: The rule -- the narrowest grounds to rule in our favor would be to say that this is a paramount interest of a state and it's entitled under basic principles of federalism to have that federal interest vindicated by a representative who is exclusively focused on that. And they are not required, just because they've been sued under Ex Parte Young, to forgo having what they have in state court, which is a champion focused exclusively on winning the suit.

John G. Roberts, Jr.: Justice Breyer, anything further?

Stephen G. Breyer: You don't see much in the idea of permissive intervention?

David H. Thompson: No, Your Honor.

John G. Roberts, Jr.: Justice Alito?

Sonia Sotomayor: Am I assuming by your argument that the existence of the law -- North Carolina law here is irrelevant? You're basically saying, whether there's a law or not, we have to mandatorily let every legislative member come in. I don't know what to do with that claim given how we have ruled in a variety of different cases that a legislature can't defend the constitutionality of a law because that's up to the attorney general of each state or the law who designates who's going to defend.

David H. Thompson: State law is not irrelevant, Your Honor, because it's a three-part test.

One is to test under Donaldson whether there's a significantly protectable interest.

Here, we have federal --

Sonia Sotomayor: But that's every legislature, has a legally protective interest. So go -- go ahead.

David H. Thompson: Yes.

Step two, this is where state law kicks in, is at step two --

Sonia Sotomayor: Right.

David H. Thompson: -- which is on the assignment.

The -- that is exclusively a function of state law as to whether the state has assigned responsibility to the putative intervenor to be an agent.

Sonia Sotomayor: So what you're basically saying, every state law that does that, everybody they designate, every cabinet member, et cetera, as a matter of law under 24(a), they have to be permitted to come in, and you're saying no, no, no, no, it's only if they're adequate to protect that particular interest, correct?

David H. Thompson: I'm saying, under step three, the first one gets to come in --

Sonia Sotomayor: All right.

David H. Thompson: -- not the second one.

Sonia Sotomayor: Now what happens in a case like this when the two representatives have overlapping interests? Meaning the Attorney General is not saying they won't defend the constitutionality of this law.

The state board hasn't said they won't.

They have the same interest or an overlapping interest to yours.

Where do we go with that?

David H. Thompson: That's Trbovich, Your Honor.

Sonia Sotomayor: No, Trbovich was the -- saying that the union member and the department -- the union and the Department of Labor had conflicting interests.

David H. Thompson: It was --

Sonia Sotomayor: They didn't have identical interests.

David H. Thompson: If we think about it as a Venn diagram, in Trbovich, the interests of the petitioner was a subset totally included within the interests of the Secretary of Labor. The Secretary of Labor had two interests. Number one, he was the petitioner's lawyer.

So that was perfect identity of interest on that interest.

But he had a second interest.

He had an interest in the public interest.

And it was the fact that he had those two, one that was identical, plus an extra one --

Sonia Sotomayor: No, no, no, but the public interest could overcome the individual interest there.

David H. Thompson: Well, they said because he had both he wasn't an adequate representative.

And that's our point here.

And -- and -- and --

Sonia Sotomayor: All right.

David H. Thompson: -- it's a little bit stronger here because, even as to the interest in defending the law, it's not perfectly the same because there's a temporal difference. They're fighting for ultimate vindication. We're fighting for the law to be in place every step of the way, including in the March 2020 primary.

Sonia Sotomayor: Thank you.

John G. Roberts, Jr.: Justice Kagan?

Elena Kagan: Mr. Thompson, I'd just like to clarify a few points, and this goes back to Justice Barrett's set of questions. If I understood your responses to her, you agreed with her that basically your case here depends on -- on the argument that you've made that legislators do have different interests from the executive branch, that there is a kind of tug, in her words, between your purely legislative interest and their interest, which also has to take into account issues of execution.

Is that correct?

David H. Thompson: We might be saying different things, so if I may clarify what -- what -- what I'm saying is that there are two separate interests: defending a law, which could be done by a legislator or somebody else. North Carolina has said the General Assembly is the champion of that interest, but there are two separate interests.

One of them is defending the law.

It's not inherently legislative.

And the other is administering the law.

Now that is executive in nature.

Elena Kagan: Yeah.

But you're saying that the reason you should be able to intervene is because you have the defending the law interest pure, whereas they don't.

They have --

David H. Thompson: Yes.

Elena Kagan: -- it in with a mix of other things.

David H. Thompson: Yes, Your Honor, that's correct.

Elena Kagan: Okay.

And -- but you're saying that that legislative interest, defending the law pure, that we should only -- we should defer to you for one legislative seat at the table, if you will, but no more, is that correct?

David H. Thompson: It's not a legislative interest.

It's an interest in defending the law.

But, yes, the first person --

Elena Kagan: Yeah, I -- I got it. Sorry I'm not precise.

David H. Thompson: I -- I -- I just don't want to -- so -- but, yes, the point is that once there's an interest that's valid, significantly protectable, the state is entitled to a champion as to that interest.

Elena Kagan: A champion, one champion?

David H. Thompson: Yes.

Elena Kagan: And -- and you're saying that it really doesn't matter that the state law in question does not define the interest in that way? In other words, the state law in question simply makes the legislate -- legislative members necessary parties but doesn't make this distinction about the particular interest in defending the law versus other state interests.

It just says there's a -- legislators have to be necessary parties?

David H. Thompson: Well, I -- I think it does, actually, because the trigger, we only come into a case when there's a challenge to the constitutionality or the validity of the law. So that's what tethers our assignment as the agent to those -- to that interest, is the trigger. If there's a challenge to the administration of a law, we're not necessary parties then.

Elena Kagan: And when you say necessary parties, do you have to be in those cases, or does it -- does it require an intervention motion on your part?

David H. Thompson: Well, in state law, we are supposed to be named, but, if we're not, it's automatic intervention if -- when we move.

Elena Kagan: Thank you.

David H. Thompson: Thank you.

John G. Roberts, Jr.: Justice Gorsuch? Justice Barrett?

Amy Coney Barrett: Just to pick up on the very end of your colloquy with Justice Kagan, was it wrong that you weren't joined under Rule 19 as a necessary party in this suit given what you're saying about this is practically impairing or impeding your interest?

David H. Thompson: That -- that would be our position, Your Honor, that we have an interest and it's being impaired and that we should have been named.

John G. Roberts, Jr.: Thank you, counsel.

David H. Thompson: Thank you.

John G. Roberts, Jr.: Ms. Theodore.

Elisabeth S. Theodore: Thank you, Mr. Chief Justice, and may it please the Court: From Rule 24's inception through today, a single principle has guided interpretation of the adequacy prong.

When a proposed intervenor's interest is identical to one that's already represented in the case, we presume that the existing representative is adequate, and that common-sense presumption holds particular force when the existing representative is a state official charged ethically and legally with defending state interests. The presumption is further supported by the strong federal interest in requiring states to speak with a single voice at a time in federal litigation.

From the vantage point of federal law, there's one state.

The state as a unified entity is what matters for federalism purposes, and it's the state that has the sovereign interest in defending state law. Where one state representative decides to no longer represent that interest, like in the Cameron situation, then a properly appointed state representative can come in to vindicate the interest that's no longer being represented. That's the same way federal law requires the United States to notify Congress to enable intervention when it stops defending a statute. But where an authorized state representative is actively defending the law, Rule 24's goals of ensuring coherent presentation and simplified litigation should prevail. And this case is the poster child for why federal law puts a thumb on the scale against intervention when a state agent is already there defending. Unlike in Cameron, there's just no need for intervention here.

Petitioners explicitly seek to assert the state's sovereign interest in enforceability and defense of state law, the exact interest the Attorney General is charged by statute with representing and is telling this Court he is representing.

And he's not only representing that interest, but unfortunately for my clients, he's winning. And then, on the other side of the ledger, allowing the state to speak with multiple voices at once would complicate litigation and draw federal courts into state law disputes, such as the substantial ones here about what state statutes in the state constitution mean.

So there's substantial cost without corresponding benefit to accepting what Petitioners propose. I welcome the Court's questions.

John G. Roberts, Jr.: Counsel, you said right at the outset that there's a federal interest that people on each side of the case speak with a single voice, right? Where did -- where did that come from? I mean, just about every case we hear, we have two parties representing one side of the case, often with slightly different interests.

In significant litigation in the federal courts, you have the same thing. If the sovereign state that is a party in the case has a law that says these people have to represent us, I don't know of any federal interest that outweighs that.

Elisabeth S. Theodore: I think the federal interest is having the -- is in having the state tell a federal court what its position really is. So Petitioners' whole argument here is that, you know, enforcing state law A, you know, enforcing the voter ID law or defending the voter ID law might conflict with an interest in election administration.

We don't think that's a different interest. But, if you think it is and if you think there are different state perspectives here, there's a really strong federal interest in not allowing the state to say, you know, we want our agents to duke it out in federal court. So, you know, put differently, the possibility that different state agents defending state law might have different perspectives and balance state interests differently is a -- it's a vice, not a virtue of their proposal, because it requires federal courts to referee instead of just telling the state, look, pick someone to tell us how the state law balance comes out.

You can get rid of the Attorney General if you want to in all cases or all election cases or, you know, our case, but you should pick. And that's not a problem in other cases where this Court has had, you know, two state representatives like Brnovich where, you know, they disagree about a question ultimately of whether the state statute violates federal law.

You know, that's a question that's in the federal court's wheelhouse. But, here, how to balance a state interest if it conflicts is something that the state should really just be coming into federal court and telling --

John G. Roberts, Jr.: Why --

Elisabeth S. Theodore: -- the federal court what the position is.

John G. Roberts, Jr.: That's a pretty unusual -- well, a pretty difficult eyebrow-raising thing for a federal court to do when you have a political controversy with two different entities, each one having a right to intervene under state law as far as the state's concerned. And you're saying the federal court -- before you even get into this dispute, which, obviously, under those scenarios, is intentionally political, you pick -- I don't want to say you pick the winner, but you pick who is the real representative of the state. I don't see federal courts doing that as a general matter or if they -- if we do ask them to do that, that's putting them in an intensely political position when they are used to in lots and lots of cases having people -- more than one interest represented on -- on one side of the -- of the "v."

Elisabeth S. Theodore: Well, we're not telling the federal court to pick.

We're saying when there is, you know, a duly authorized representative who's already there, who's already active -- actively defending the state, you know, we'll stick with that person unless there's a really good reason to think that they're not -- they're not doing the job. And, again, the state can always kick them out.

But this is consistent with federal statutory law on intervention.

So Section 2403(b) says, you know, we'll allow intervention of the state if there's not already someone in there defending state law.

John G. Roberts, Jr.: Well, but the federal side is very different.

We have a unitary executive.

The person -- the -- the -- the -- one person should speak for the United States.

States don't have to have that same perspective.

Elisabeth S. Theodore: Well, Section 2403(b) is specifically about intervention by states, and what it says is a state can intervene as of right if there's not already a state agency or state officer who's a defendant.

So I think federal law really strongly supports our view that there should be a presumption of adequacy when you already have one state officer in there as a defendant defending state law. And so -- so I don't think we're asking the federal court to pick.

We're saying you stick with the one who's there, and, by the way, the -- the defendant who's there is going to be the one who's, you know, the only permissible defendant under federal law.

John G. Roberts, Jr.: So, if the legislature had entered an appearance first, they would be the one there?

Elisabeth S. Theodore: Well, the legislature wasn't a defendant.

I mean, we -- we sued the only defendants that we could sue under Ex Parte Young, which would not, of course, include the legislator -- legislatures. So -- so I don't think -- as I say, I don't think the federal court is picking.

And, again, the State of North Carolina can kick the Attorney General out at any time, anytime it wants, if it really thinks he's not adequate to defend the state's interests in -- in the voter ID law.

And it hasn't done that here. And, as I say, I think there's a really strong federal interest in just telling the state you choose who represents you, but we want to know what your position is in federal court.

Amy Coney Barrett: But isn't their position that even if it wasn't the Attorney General defending the Board of Elections, that it would still -- they would still be entitled to intervention? Let's say that they hired private counsel.

I understand their position to be the same, I think, that it doesn't depend on the fact that the Attorney General is representing them but the fact that the interests aren't aligned.

Elisabeth S. Theodore: I -- well, I think North Carolina law clearly says that the Attorney General is the authorized representative of the state Board of Elections. And North Carolina law says that the Attorney General represents the state in any case in which the state's a party or interested or its agencies are a party.

So --

Amy Coney Barrett: Didn't he get dismissed from the suit?

Elisabeth S. Theodore: The governor got dismissed from the suit.

Amy Coney Barrett: Okay.

Sorry.

Elisabeth S. Theodore: Yeah.

So --

Amy Coney Barrett: Okay.

Elisabeth S. Theodore: -- so North Carolina law clearly authorizes the Attorney General to be here.

That hasn't been repealed.

Amy Coney Barrett: Well, what if a private firm was representing the state Board of Elections? They just decided no Attorney General.

And so you said the state can kick the Attorney General out at any time.

So let's say that's what happens. What then? Does anything change?

Elisabeth S. Theodore: Well, I -- I think I would assume in your hypothetical that there's a state law that says the private lawyers represent the state board to defend the constitutionality of state law.

Amy Coney Barrett: Yeah.

Well, you said that they could kick the Attorney General out anytime.

And I'm not saying, like, as a matter of general principle that the Attorney General is not the one who typically represent the state in court.

But, obviously, there's been a lot of back and forth, and the legislature has passed laws related to this specific litigation. So I'm just saying, would that matter at all? Let's say they say we think the Attorney General is doing a bad job, so we want private counsel.

Elisabeth S. Theodore: They could do that, absolutely.

North Carolina law could do that. And then, in that case, again, I don't think the legislature could come in and say we want a second counsel representing the state.

They -- they'd just pick one, the one that state law says represents the -- the state.

Amy Coney Barrett: But it wouldn't change your view about whether the legislature could come into the suit, whether Berger could come in? It wouldn't change?

Elisabeth S. Theodore: It wouldn't.

But, if state law says that, you know, the -- the state legislators decide who the counsel is for the state Board of Elections in any particular case, that would be fine from the perspective of federal law.

They could -- they could certainly do that.

And so, again, you know, the state is in -- is in total control here.

Stephen G. Breyer: But, before you do -- what do you do about this Trbovich? I mean, on page 539, I take it what the Court said, this is a union member, he goes to the Secretary of Labor, says, hey, they had an unfair election in the Mine Workers.

The Secretary brings the lawsuit, as he's supposed to.

The union member wants to intervene. The interests of the union member and the Secretary, says the Court, are identical, but even if the Secretary is performing his duties as well as can be expected, the union member may have a valid complaint about the performance of his lawyer.

Such a complaint filed by the member who initiated the entire enforcement proceeding should be regarded as sufficient to warrant relief in the form of intervention under 24(a)(2). No mention of any presumption against intervening.

Sounds like the easiest thing in the world to intervene.

This man, the union member, just wanted to present some more evidence.

That was it.

Elisabeth S. Theodore: Yes.

Stephen G. Breyer: So -- so is -- have all the lower courts just not followed that, or -- or what's -- what's the situation? And what do you think?

Elisabeth S. Theodore: Trbovich -- Trbovich is a totally different situation.

It just holds that, you know, a government official can't adequately represent at the same time both the public interest and a private union member's individual interest. And it makes total sense that showing inadequacy is a minimal burden where you have, you know, a government defendant and then you have a private person who wants to come in.

We completely agree with that. But, here -- here, the issue is that you have a government defendant on one side representing the state's interests in defending state law, and Petitioners want to come in and say that they represent exactly that same interest. And with respect to their claim that they aren't focused on election administration, that's really hard to square with their view and the way they've presented this case where, in their cert petition, they intentionally disclaimed any institutional interest.

Stephen G. Breyer: Well, that's the interest.

But, I -- I mean, if a private person can very easily go in and help the federal government win a lawsuit, why couldn't the state say we want this person to come in? That would seem stronger, not weaker, because the private person is one of 400,000 union members.

But the state legislature in an election case has a pretty strong interest.

Elisabeth S. Theodore: Well, the state legislature -- the Petitioners here have said in their cert petition they don't represent the legislature, they only represent the state, which I think makes it really difficult for them to say they have a different perspective and they don't care about election administration when they have said we want to come in on behalf of the state as a whole.

Elena Kagan: So, Ms. Theodore, I take that point, and -- but, I mean, I guess I think that there's a kind of formalness about it.

I mean, they are saying that they have a different interest because they have this interest, pure, in defending the law, unleavened by any other consideration. Now I take -- I take your point that that's in some tension with their consistent representations that they want not to represent the legislature but, instead, to represent the whole state, which you might think is a kind of interest that's, even taking their own view, you know, leavened by these executive interests as well.

So they want to kind of have it both ways. But why shouldn't we think that the more important of the two statements that they're making to us is that they have this pure interest in defending the law which nobody else in the courtroom has and that, you know, whether we call it representing the state or call it representing the legislature is less important than that sort of substantive difference in the interests that they have?

Elisabeth S. Theodore: Well, you have the Attorney General saying that his primary interest is also in defending the law.

So you'd have to be deciding between two state actors who have a dispute about state law and what -- what each one is doing.

And you'd have to be saying that the Attorney General is inadequate to defend state law, and I think that's something the Court should hesitate to do. I think also the -- the -- the answer to the hypotheticals about, you know, the two legislators coming in are really devastating to their position.

A state could easily just say, you know, we think the head of the Budget Committee has a different perspective on defending state law than the head of the Election Committee and, you know, the -- the head of the budget -- the head of the Election Committee might not prioritize budget issues, and so, therefore, those -- those folks should come in too.

And I think -- I think that, as -- as the intuition of Mr. Thompson suggests, Rule 24 would have a real problem with that. And I do also want to identify some of the real specific practical problems with their -- with their position that you can have two officers representing the state.

You know, how do you get a binding admission when two agents purport to represent the state? What if agent number one admits something and agent number two says, you know, we lack knowledge and so, therefore, it's denied? Is it admitted? Or let's suppose you have a damages suit against the state as a named party like in a Title VII suit where they say a law violates -- a state law violates Title VII.

You know, Congress has validly abrogated sovereign immunity.

You know, let's suppose agent number one wants to put on a different 30(b)(6) representative on behalf of the state than agent number two.

Which one binds the state? Or let's say agent one says we want a jury trial and agent two says we don't.

There are real significant problems with their position here.

Samuel A. Alito, Jr.: What happens if intervention is denied on the ground that the Attorney General will provide adequate representation and then the trial goes forward, the legislature has its attorneys sitting there in the courtroom, and they -- they say look what -- look what the Attorney General has done.

The Attorney General has assigned one very junior attorney to try this case, and the Attorney General is declining to spend money on experts and engage in other activities which we think are essential to the defense of this statute. Can they move for intervention at that time? Is it untimely?

Elisabeth S. Theodore: I -- I think that if -- no, I don't think it would be untimely if they could say there are, you know, significant new developments that would allow us to overcome the presumption.

It wouldn't be untimely.

And I think the district court made very clear in its ruling that if there were new developments that suggested that the Attorney General was somehow abdicating his responsibility to defend state law, they could try again.

Samuel A. Alito, Jr.: Well, not in abdicating the responsibility, but, you know, doing the -- the minimum required by the Attorney General's duty under the law, but not treating this as the most important thing that merits the expenditure of whatever is necessary to provide the maximum defense of the law. The legislature can appropriate as much money as it wants to the defense of the law and make that their number one priority. But what if at some point the Attorney General says, look, this is costing too much, we -- we should settle.

Or suppose there's an adverse decision and the Attorney General says: We -- you know, we did our best, but we are not going to take an appeal. Would intervention be allowed at that point?

Elisabeth S. Theodore: As for the appeal, you know, I think the Court's decision in Cameron makes pretty clear that it would be an abuse of discretion not to allow an appeal.

Samuel A. Alito, Jr.: Well, what sense does it make to allow the appeal -- to allow intervention at the appellate level after the Attorney General has made what the legislature regards as an inadequate defense of the statute or an inadequate record? Doesn't that just make things more complicated?

Elisabeth S. Theodore: No, I don't think so. I think the purpose of the adequacy prong in Rule 24 is to simplify litigation.

That's why courts have to decide adequacy. But, again, the state here -- if -- if the state thinks that the Attorney General isn't doing a good enough job, it has a very simple way to deal with that.

All it has to do is replace him.

And nothing about our position prevents that.

Our position simply prevents them from having two people at the same time.

Samuel A. Alito, Jr.: What's the mechanism for replacing him?

Elisabeth S. Theodore: The -- well, I mean, I -- I think Petitioners would probably say that state law already allows them to do it and they just haven't done it. But, you know, state law could simply say that if -- at -- at the discretion of the General Assembly's leaders, they can replace the Attorney General with private counsel on behalf of the board. And, you know, there might be a state law problem with that, but there wouldn't be a federal law problem with that.

And that's -- I think that's -- that's the answer to -- to any concern about --

Samuel A. Alito, Jr.: Do they have that power under state law now?

Elisabeth S. Theodore: I think there's a real dispute about whether they do, and they haven't invoked it in this Court, but --

Elena Kagan: But the position is that they have that power and they wouldn't even need the governor's signature on a new piece of legislation?

Elisabeth S. Theodore: I -- I think that might be their position.

But, certainly, as far as federal law is concerned, a state could give them that power.

John G. Roberts, Jr.: Thank you --

Samuel A. Alito, Jr.: I mean, there's an air of unreality about the arguments here.

So you say that the Attorney General representing the Board of Elections is going to provide perfectly adequate representation.

The legislature obviously doesn't think that. They say, well, you're wrong.

You know, you're wrong, the Attorney General is going to provide perfectly adequate representation in defending the law.

They -- they don't understand what's in their own best interests, right?

Elisabeth S. Theodore: Well, the Petitioners don't think that, but the state does think that. That's why the state has a law that designates the Attorney General as -- as their -- as the -- the person who defends state law. And I think it's important to distinguish between what Petitioners say and what the state says.

And state law clearly authorizes the Attorney General to defend state interests --

John G. Roberts, Jr.: Thank you.

Sonia Sotomayor: Counsel --

Elisabeth S. Theodore: -- in state law litigation.

John G. Roberts, Jr.: Thank you. Thank you, Ms. Theodore.

I just have a couple really quick questions. It -- it -- this may be along the same lines as Justice Alito's, but it does seem a little unfair to me that you're -- you're asking us to let -- to pick your opponents.

I'd rather -- in -- in court, I'd rather have only one person arguing against me rather than two. But I think that's a little bit of a -- a conflict there.

I mean, what's -- what are you afraid of? I mean, you should -- you know, I'm sure you could handle two of them as -- as easily as -- as -- as one.

Elisabeth S. Theodore: Well, I'll say again that we haven't picked our opponents.

We sued the people who federal law, Ex Parte Young, in Article III allowed us to sue.

So we didn't make a decision there. But, you know, I think what Rule 24 is about is simplifying litigation, and it -- it says we don't add another defendant, we don't add another plaintiff unless there's a really good reason, and, here, there isn't one.

John G. Roberts, Jr.: Well, you keep saying we, we.

I mean, the -- the point is that it -- it's -- it's a court interest and it -- the question is whether the court should be -- should be letting the state have the two representatives that under state law they say they should have. And, I mean, I -- I don't -- I don't mean this the way it might sound, but I don't know why we're terribly interested in what your views are on that in the first place, because you're the one who's going to benefit if we throw one of your opponents out.

Elisabeth S. Theodore: Well, I think Rule 24 is there to protect plaintiffs and defendants. It's there to simplify litigation.

It's there to reduce cost and burden.

And that's an interest that protects the litigants, including us. I think, you know, we have an interest and, you know, I think the Court probably should have an interest in sort of not announcing rules that make it easier for governments to just say we're going to make it harder for people to challenge the government. So I think we do as plaintiffs have an interest.

John G. Roberts, Jr.: Thank you. Justice Breyer, anything?

Stephen G. Breyer: Well, I'll go back to this once more because I did notice the footnote, which fortunately or unfortunately count, and the footnote says the requirement of the rule -- they're talking about the same phrase -- is satisfied if the applicant shows that representation of his interests "may be" inadequate, and the burden of making that showing should be treated as minimal. Now that says maybe there is a presumption.

Moore says there's a presumption. Not Moore himself, but the treatise.

And -- but minimal is the key word. So what -- what do you say? I mean, I think we have to follow that, don't we?

Elisabeth S. Theodore: So all of the federal courts of appeals have understood that Trbovich rule to apply only in cases where there wasn't the same interest, where there was a different interest, like in Trbovich, where the Secretary of Labor was charged with both being a private person's lawyer and --

Stephen G. Breyer: Okay, I got it.

Elisabeth S. Theodore: -- and representing the government.

Stephen G. Breyer: I see your point, I see your point.

Elisabeth S. Theodore: So that's how we understand it.

Stephen G. Breyer: Thank you.

Elisabeth S. Theodore: We -- we agree with Trbovich.

Stephen G. Breyer: Okay.

John G. Roberts, Jr.: Justice Alito, anything further?

Sonia Sotomayor: Trbovich was a situation in which the private individual doesn't have a right to pick his lawyer, correct?

Elisabeth S. Theodore: That's -- that's right.

Sonia Sotomayor: And so what Trbovich was dealing with, which was an innate conflict, which is the union member who can't pick his lawyer, is saddled with a lawyer whose interests can be combined but has a separate primary interest of the public interest, correct?

Elisabeth S. Theodore: Yeah.

And I think the private --

Sonia Sotomayor: All right.

That's not the case here.

The case here is there's overlapping interests, but the question the district court was looking at was whether the representation was adequate.

Elisabeth S. Theodore: Yeah.

Sonia Sotomayor: The other side, Justice Alito asked a question of how does the legislature protect itself in the event that the Attorney General is not vigorously defending the law by giving it good counsel or expert witnesses. Isn't that what the district court looked at, which was how vigorously was the state defending this law, and didn't it say that everything the legislature wanted to do the state had done but in a different way?

Elisabeth S. Theodore: Yes.

Sonia Sotomayor: They proposed experts, but the legislature gave an expert that gave exactly the same information, correct?

Elisabeth S. Theodore: I think the -- yes, I think the district court looked at all of these things, and its determination is entitled to deference.

Sonia Sotomayor: And it said, if the state stopped doing it, they could come back and ask to intervene, correct?

Elisabeth S. Theodore: Absolutely right.

Sonia Sotomayor: Thank you.

John G. Roberts, Jr.: Justice Kagan, anything further? Justice Gorsuch? Justice Barrett? Thank you, counsel.

Elisabeth S. Theodore: Thank you.

John G. Roberts, Jr.: Ms. Boyce.

Sarah Boyce: Mr. Chief Justice, and may it please the Court: Petitioners cannot plausibly argue that the state board and the Attorney General are not adequately defending the voter ID law. Petitioners have identified no daylight between their legal position and ours.

Their evidence is duplicative of our evidence.

And we have prevailed in the litigation thus far and are confident that we will ultimately prevail through final judgment. Nevertheless, Petitioners seek to intervene.

As we have consistently said, we have no problem litigating alongside Petitioners.

But Petitioners cannot satisfy the requirements of mandatory intervention. They have asserted the same interests as the Attorney General, who remains in this case robustly defending the law.

In that situation, a presumption of adequacy applies and Petitioners cannot overcome it. Moreover, there is a fundamental principle of state constitutional law at stake. Petitioners read two state statutes to give them the right to represent the state's interests in enforcing the law.

That construction would violate the North Carolina constitution. Thus, whether or not the Petitioners are permitted to intervene in this case, we urge the Court not to adopt their erroneous reading of state law, which would violate our state's separation of powers. I welcome the Court's questions.

Samuel A. Alito, Jr.: Doesn't the fact -- doesn't that state law -- state constitutional law issue that you just raised show that your perspective on this is different from the legislature's?

Sarah Boyce: I don't believe so, Your Honor.

Our state constitutional law issue arises out of Wallace versus Bone, as Justice Sotomayor spoke of, and gets to the issue of whether or not the legislature -- the Petitioners can represent the state, not to whether they might have a distinct legislative interest as they've claimed here. And just as Justice Sotomayor said, Wallace v. Bone, much like the Buckley versus Valeo federal analogue, says that a legislature cannot represent a government's interest in enforcement of law or, to -- to -- to say the flip side of that, in defending the law. So, to the extent that Petitioners claim to represent our state and to have the authority to represent the state's interests in litigation, Wallace versus Bone says that is a crystal-clear violation of our state's constitution.

Elena Kagan: So, if the Petitioners were here saying we have a distinct interest in -- in defending the law pure, let's say, which is a little bit different from what you do in the executive branch, that's their -- their -- their theory, and so we -- you know, we have a distinctively legislative interest and -- and -- and we're asking for intervention, would you -- would you be all right with that? Like, as long as they said we're not representing the state's interests, we're representing a specifically legislative interest which is not represented by the Attorney General, would you be, like, come on in under intervention of right?

Sarah Boyce: I'm not -- I think it would depend on the particular case, Your Honor. We do not have an issue with them asserting a legislative interest insofar as the question is does that pose a constitutional problem.

We agree that they are entitled to assert a legislative interest.

Elena Kagan: And would you also agree that under the intervention rule, that would be perfectly permissible? They're representing a different interest.

They're asserting a different interest.

You can't adequately represent an interest that's not your own.

So, as long as they were saying we're here as the legislature representing a distinctively legislative interest, all your objections would fall away, is that correct?

Sarah Boyce: I think that's partially correct.

So, because defining an interest can be inherently malleable and, as we've seen from Petitioners' briefs, you can frame what I would say is the same interest in many different ways, the federal courts use different litmus tests to assert whether or not the interests sufficiently overlap that they're effectively the same. And that's where these inquiries like do the parties have the same ultimate objective, are there any claims that the movant would wish to assert that the existing party has declined to assert, things like that are the -- the tests that the federal courts use to suss out whether or not the interests sufficiently overlap.

Elena Kagan: And what's the result under that test?

Sarah Boyce: I --

Elena Kagan: If -- if -- again, if they were saying specifically legislative interests, unadulterated, separate from any executive interests that you -- you have?

Sarah Boyce: In this particular case, I'm still not sure that they've shown enough to prove that we haven't adequately represented their interests because, as I said in my opening remarks, they haven't actually identified any daylight between their position and ours or any claims that they wish to assert or any evidence that they wish we were putting on that we haven't put on. But we certainly concede that in certain cases that might be different.

And North Carolina does seem to grant them a distinct legislative interest that would allow them to move for Rule 24(a)(2) intervention in other cases.

Sonia Sotomayor: (a) or (b)? Meaning I think of it as permissive intervention.

Sarah Boyce: Your Honor, they're certainly permitted to move for intervention -- for permissive intervention and, of course, have done so in this case.

And we would urge the Court, insofar as it's inclined to let the Petitioners intervene, to permit them to intervene through that route. But the state's position is that North Carolina state law does recognize a legislative interest as well.

And then the question is just, on a case-by-case basis, whether or not the Attorney General, who's already in the case, is, in fact, already adequately representing that legislative interest, as well as the broader state interest.

Sonia Sotomayor: All right.

In that regard --

Stephen G. Breyer: Now how --

Sonia Sotomayor: -- may I ask, you've succeeded in the Fourth Circuit, haven't you, in a vacatur of the preliminary injunction?

Sarah Boyce: Yes, Your Honor.

Sonia Sotomayor: On the ground that you were likely to succeed on the merits that S.B. 824 was constitutional?

Sarah Boyce: Yes, Your Honor.

That's correct.

Sonia Sotomayor: So it wasn't on an equities argument with respect to administrative burdens?

Sarah Boyce: No, Your Honor.

Sonia Sotomayor: You're defending on the merits?

Sarah Boyce: Absolutely.

Sonia Sotomayor: What is the status of -- it's been placed on hold below waiting for this case?

Sarah Boyce: Yes, that's correct.

It has been stayed.

And I would note that, in fact, we moved, at the point that this Court granted cert, for permissive intervention on the legislators' behalf because we have an interest in actually seeing this case through to resolution and -- and having the chance to defend the law and vindicate our ability to enforce the law. But the district court denied that motion as moot and stayed the case until this case is resolved by this Court. But I say --

Sonia Sotomayor: How about --

Sarah Boyce: -- that to --

Sonia Sotomayor: -- how about the issue of this -- your summary judgment motion on the merits? You made one on the merits as well, correct?

Sarah Boyce: Yes, Your Honor.

That's correct.

And that --

Sonia Sotomayor: Has that ruled -- been ruled on?

Sarah Boyce: No, it has not.

It -- it remains pending.

Sonia Sotomayor: Can this case become moot on the -- because of the state court action?

Sarah Boyce: It could, Your Honor, yes. Currently, the -- the law is enjoined by the state trial court via a permanent injunction, and we are currently appealing that decision alongside the legislators, and -- and that has gone straight up to our North Carolina Supreme Court.

Sonia Sotomayor: If you --

Sarah Boyce: So if --

Sonia Sotomayor: And that is scheduled for argument when?

Sarah Boyce: It's not yet scheduled for argument, Your Honor, but I assume it will be argued at some point this year.

Sonia Sotomayor: I read somewhere that it's likely this summer?

Sarah Boyce: I -- I believe that's correct, Your Honor, but I -- I -- I don't believe that there's a firm date quite yet.

Sonia Sotomayor: So, if you lose there, then this case becomes moot, correct?

Sarah Boyce: That's correct, Your Honor.

That's a point that we made in our brief in opposition.

Because of the parallel nature of this litigation, it is possible that this case would become mooted. And I would also note that the parallel litigation is -- is part of what drove our decision not to move to stay the preliminary injunction that Petitioners have raised so frequently. The problem there, of course, was that the district court enjoined the law at the end of January 2019, and we had made clear that at the start of January 2020 we would need to move immediately to mail ballots for the primaries in 2020.

And we knew that there was this parallel state court litigation that might lead to an injunction, once again causing us to change course. And so we acknowledged and conceded candidly in our briefs that because of our obligations to enforce all of the state's elections laws, that we recognize they might put us in -- in an impossible situation were we to move to stay the federal court case and then immediately find that the state court had enjoined the law, which, of course, is precisely what did end up happening in February 2020. So I -- I just wanted to clarify the record on that point regarding the motion to --

Stephen G. Breyer: Suppose -- suppose that I thought, hypothetically, one, intervention, which we're getting into under 24, is vast, as a subject.

All right. Two -- and I don't know that much about it.

I don't want to deny that I know some things, but, I mean, maybe I've gone too far in this argument.

But -- but, regardless, I'm not an expert, okay? Two, suppose I think it's terribly important in an election case that the legislature have a right to -- to be there in the court or be there in some form.

They'll be -- amicus briefs, permissive intervention.

But I'm worried about saying under general -- but then there's this other parallel thing, and the election's coming along.

Okay? So what do I do?

Sarah Boyce: Well, our position would be --

Stephen G. Breyer: Aside from saying, well, we win, but, I mean -- go ahead.

Sarah Boyce: Yes.

I mean, our position is that, as they have brought this case to the Court asking only for mandatory intervention on behalf of the state, which we think gives rise to a significant constitutional problem, the only proper outcome for this Court is to deny mandatory intervention. Again, we are not opposed to the idea --

Stephen G. Breyer: Second choice.

Sarah Boyce: -- that if they were to ask for permissive intervention, that that would be an acceptable choice.

And I think, for many reasons, which I can list quickly, that would be preferable to intervention as of right. The first would be that it avoids these complicated questions of state law about who gets to represent the state, whether, in fact, North Carolina has deemed the Attorney General inadequate, which we vigorously disagree with. The second reason would be because Rule 24(a)(1) already recognizes an automatic right for parties who are granted a mandatory intervention under federal law.

It has no parallel congruent provision for state law.

And one would think that if Congress or the advisory committee had intended to grant states the ability to automatically admit intervenors, that they would have included it there. And then, finally, when the rules were revised in 1944 to add the provisions in the -- in 24(b), the permissive intervention section, that allow certain state officials a thumb on the scale for permissive intervention, the committee specifically considered moving state officials into 24(a)(2) and allowing them the right the intervene automatically and declined to do so. For all -- so for all of those reasons, if the Court is concerned about legislators' ability to protect their legislative interest, this distinct narrow legislative interest, the proper course would be to grant them permissive intervention, not mandatory intervention as of right. I do quickly, in whatever time I have left, want to push back aggressively against the notion that North Carolina would be free to simply abolish the Attorney General.

It may be true that that would be permissible under federal law.

It would clearly not be permissible under North Carolina state law. The Attorney General is a constitutional officer with -- who is identified as the chief legal officer of the State of North Carolina.

And, of course, statutory law reinforces his obligations.

But the State of North -- North Carolina could not simply delegate his responsibilities to someone else.

John G. Roberts, Jr.: I'm sure your bosses will be happy to hear that that's what -- that was your position.

Sarah Boyce: I believe I would have been remiss if I did not mention that. I do want to briefly touch on Cameron as well since that was one of the many intervention cases that this Court has heard this term and note that Cameron is wholly consistent with our position. In Cameron, what the Court was concerned about was whether a state might find itself without a fair defense and with no one there to defend its laws.

We, of course, acknowledge the significance of that interest to the states, But, here, we have an attorney general who has committed to robustly defending this law who has prevailed in overturning a preliminary injunction on appeal.

So there is no situation where the state is going to be left without someone to defend it. Cameron says, of course, that a state is free to designate its own agents, and we accept that proposition, but that does not mean, A, that a state can force federal courts to hear from numerous actors, all of whom purport to speak on behalf of the state, or that a state can designate agents in a way that flouts its state constitution. And we think that both of those counsel against mandatory intervention here.

John G. Roberts, Jr.: Justice Breyer, anything further? Justice Alito? Justice Sotomayor? Justice Kagan? Justice Gorsuch? Justice Barrett, no? Thank you, counsel.

Sarah Boyce: Thank you.

John G. Roberts, Jr.: Rebuttal, Mr. Thompson.

David H. Thompson: Yes, Mr. Chief Justice, just a few quick points. They claim they're not trying to pick their opponent, but they are because they filed in federal court, not in state court.

If they had filed in state court, we would be there as defendants, number one. Number two, they invoked the prospect of intramural fights, but there are frequently instances, it happens all the time in 1983 litigation, that a plaintiff will name a variety, a multiplicity of state defendants, and they haven't been able to point to a single example of when the multiplicity of state defendants in a 1983 suit somehow has created problems in terms of administration of justice. And that's because of the presumption of good faith.

And they acknowledge at page 55 of their brief, candidly and forthrightly, that they have no doubt that if we come into this case we will work cooperatively with them, as we have done on many occasions before. They invoke the role of the attorney general.

But Rule 24 talks about parties, not lawyers.

And the party here is the State Board of Election, which has the responsibility for administering the election. They say that they prevailed in the Fourth Circuit.

The March 2020 primary was held without this law in effect, and the reason it wasn't in effect is because they prioritized their administrative responsibilities over the merits and the Purcell violation. And then, finally, there was a discussion about, well, maybe this case will be rendered moot by the state court.

There's been no -- the briefing hasn't been completed. There's no argument.

We don't know how the North Carolina Supreme Court will rule. And it could be capable of repetition yet evading review even if that proceeding ultimately one day did moot things out. Thank you.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.