IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA UNITED STATES OF AMERICA, ) ) Plaintiff,

) ) v. ) ) THE STATE OF NORTH CAROLINA; THE ) NORTH CAROLINA STATE BOARD OF ) ELECTIONS; and KIM W. STRACH, in her official ) capacity as Executive Director of the North Carolina ) State Board of Elections, ) ) Defendants. )

1:13cv861 (TDS-JEP)

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION FOR INTERVENTION BY CHRISTINA KELLEY GALLEGOS-MERRILL AND JUDICIAL WATCH, INC.

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Judicial Watch, Inc. (JW) and Christina Kelley Gallegos-Merrill (Merrill), collectively, the JWIs, respectfully submit this reply memorandum of law in further support of their motion for leave to intervene as defendants. ARGUMENT I. The JWIs Have Amply Established the Interest Required of Defendant-Intervenors Pursuant to Fed. R. Civ. P. 24(a)(2). a. The United States Mischaracterizes The Governing Standard. The United States (U.S.) mischaracterizes the stringency of the showing the JWIs must make. The JWIs had cited NAACP v. Duplin County, No. 7:88-CV-00005 (E.D.N.C., Feb. 2, 2012), to show persuasive precedent in the Fourth Circuit that the protectable interest required by Rule 24(a) involves a lesser showing than that required for Article III standing. Doc. No. 27 (JWI Br.) at 6-7, 12. The U.S. argues that this is an error, and that the interest required by Rule 24(a), while related to standing, cannot be described as requiring a greater or lesser showing. Doc. No. 38 (U.S. Br.) at 4 & n.2. 1 This claim would have surprised the court in Duplin County, which clearly held that full standing involved a greater showing. In declining to require Article III standing, Duplin County reasoned in part that case law suggests that intervention is desirable, which means that the court saw Article III standing as a greater obstacle to intervention. Duplin County, No. 7:88-CV-00005 at *9-11 n.3. The court then plainly stated that
1 Beasley v. Bethlehem Steel Corp., No. Civ. HM74-377 (D. Md. Nov. 15, 1979) is cited

to support this claim (U.S. Br. at 4 n.2), but it does not stand for that proposition. The court there simply denied intervention where the movants failed to establish two prongs (impairment of interest and inadequate representation) of the test for intervention. See Virginia v. Westinghouse Electric Corp., 542 F.2d 214, 216 (4th Cir. 1976) (3-part test).

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insisting on Article III standing would impose a stricter requirement on Rule 24(a)(2) intervention than was warranted by the law of the Fourth Circuit. Id. (emphasis added). 2 Notwithstanding the reasoning in Duplin County that an intervenors interest involves a less stringent showing than standing and notwithstanding its own repeated assertions (with which we agree) that the two standards are distinct (e.g., U.S. Br. at 4 n.2) the U.S. then takes the unwarranted step of concluding that the JWIs must show Article III standing to have the interest required by Rule 24. U.S. Br. at 4. It does so by referring to traditional standing doctrine concerning an injury and asserting that it is [s]imilar to the standard for a protectable interest under Rule 24(a)(2). Id. Yet, the cases it cites do not stand for this principle. 3 b. The JWIs Have the Interest Required to Intervene of Right. The JWIs only have to show one interest to permit Rule 24(a)(2) intervention of right. JWI Br. at 6-12. We respectfully submit that we have established several. Merrill can show that she has the interest required for intervention under Fourth Circuit law. Merrill has testified that she plans to run again for Buncombe County Commissioner in 2014 and has taken initial steps to make this happen. Doc. No. 26-2
2 Duplin Countys holding finds support in Diamond v. Charles, 476 U.S. 54, 68 (1986),

where the Supreme Court held that a defendant-intervenors interest was not sufficient to establish standing to appeal after the initial defendant withdrew. This necessarily implies that Article III standing involves a greater interest than that required for intervention.

v. Defenders of Wildlife, 504 U.S. 555 (1992), enunciated the traditional standing doctrine. Whitmore v. Arkansas, 495 U.S. 149 (1990), concerned one death-row inmates attempt to assert, on behalf of another inmate, either third-party standing or next friend status under a gloss on the habeas statute,28 U.S.C. 2242.

Lujan

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(Merrill Decl.), 16. Merrill also testified about a likely instance of voter fraud, where no information whatsoever was available pertaining to the residency, or even the existence, of one purported student voter. Id., 17. Merrill contends that the person in question was not even a student at Warren Wilson and that he was not the only one. Id. Merrill concludes that the results of upcoming elections could be manipulated and even eradicated again because of the same irregularities. Id., 21. (The U.S. makes no mention of Merrills planned candidacy or of any of these facts in its response.) This concern makes sense, given that Merrill, who lost a disputed election fourteen months ago, marred by apparent voter fraud, by a vote margin of 13, will be running again in the same district, for the same office, probably against the same candidate. The U.S. asks the JWIs to explain[] how any of the challenged provisions in HB 589 would have prevented any voters . . . from casting what [Merrill] claims were improper ballots. U.S. Br. at 6. The simplest answer is that the purported student voter who was not a Warren Wilson student, and any others like him, would be more likely to be discovered or deterred if forced to present a photo ID when voting. 4 The U.S. claims that photo ID would not have helped to prevent fraud, because same-day registrants had to prove a residence address under the old law. U.S. Br. at 7. But the cited statute cross-refers to another that allows proof by utility bill, bank statement, or government document which do not have to include a voters photograph and can be forged on any laptop. See N.C. GEN. STAT. 163-82.6A(b) (repealed), citing 163-166.12(a)(2).

discussed in the JWIs initial papers (JWI Br. at 11-12, Fitton Decl., 11-12) and infra at 6-7, other repealed provisions were also vulnerable to fraud.

As

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The broader context of its argument, however, suggests that the U.S. is confusing the interests of a plaintiff with those of a defendant. For example, the U.S. asserts that Merrills allegations should have been addressed through her proceedings under state law (U.S. Br. at 6); and that Section 2 is not the correct vehicle to vindicate her claims, citing case law that a losing candidate is not an aggrieved person under the Voting Rights Act (id. at 7, 8). Even assuming, arguendo, that Merrill had to show an interest sufficient to satisfy Article III, she is not trying to sue. Merrill is trying to defend HB 589, and for that she does not need to vindicate claims or establish allegations, any more than does the State of North Carolina. Merrill has an interest in this case based on a reasonable apprehension of future harm if the relief sought by the U.S. is granted. 5 Merrill and JWs members who are registered voters in North Carolina also have a vital interest in avoiding (1) the actual dilution of their votes through fraud, and (2) the loss of confidence in the democratic process that the potential for fraud engenders. JWI Br. at 8-10. The U.S. response is to call these generalized interests, shared by every voter. U.S. Br. at 8. This is a misuse of the term. Discussing standing, the Supreme Court observed that a generalized interest is where harm is not only widely shared, but is also of an abstract and indefinite nature for example, harm to the common concern for obedience to law. FEC v. Akins, 524 U.S. 11, 23 (1998). By contrast, where harm is concrete, though widely shared, the Court has found injury in fact. This conclusion seems particularly obvious where . . . large numbers of individuals

See Matthew I. Hall, Standing of Intervenor-Defendants in Public Law Litigation, 80 FORDHAM L. REV. 1539, 1571 (2012) (arguing that defendant-intervenors must show a reasonable apprehension of injury from judicial resolution of the plaintiffs claim).

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suffer the same common-law injury (say, a widespread mass tort), or where large numbers of voters suffer interference with voting rights conferred by law. Id. at 24. The interest asserted by Merrill and by JWs members as voters is widely shared, but is concrete and specific. 6 A fraudulent vote leads to a mathematically demonstrable loss in the weight of an honest vote. Indeed, the loss of confidence in the legitimacy of the elections has been held even to confer Article III standing. Judicial Watch, Inc. v. King, Cause No. 1:12-cv-800 (S.D. Ind., Dec. 10, 2012). While the U.S. tries to distinguish that case on the sole ground that it arose under the NVRA (U.S. Br. at 11), that distinction fails for the simple reason that the voters interests in avoiding fraud are the same, regardless of which statute or violation gave rise to the potential for fraud.7 JWs interest in its ability to obtain public records is further supported by JW President Fittons second declaration, which states, among other things, that JW has filed at least six state records requests in North Carolina in just the past two years. 2nd Fitton Decl., 5. The U.S. suggestion that JW submit a 40-county study assessing the last 40

v. Bartlett, 575 F.3d 419, 422, 424 (4th Cir. 2009) (cited by the U.S. Br. at 9) is about Article III standing, not Rule 24(a) interest, and also is inapposite because the plaintiffs there admitted they were not actually misled by the challenged ballot language.
6

Bishop

Court should not rely upon the reasoning in United States v. Florida, No. 4:12-cv285 (N.D. Fla. Nov. 6, 2012) or Veasey v. Perry, No. 2:13-cv-00193 (S.D. Tex. Dec. 11, 2013) (Doc. Nos. 38-1 and 38-2). The Florida decision appears to be based on some combination of lack of an interest and adequacy of representation. Id. at 3. Veasey cites to Florida and ambiguously mentions both factors. Id. at 1. As they both rely on a combined analysis, they have little application here, where there is a different combination to consider including additional arguments relating to Merrill as a candidate, public records, and the results standard under Section 2. But even if those decisions were read to expressly reject particular arguments, we respectfully submit that this Court has the authority to decide otherwise for the reasons stated herein.

This

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years of open records compliance against the seven months since preclearance ended (U.S. Br. at 12), while intriguing, seems designed to raise the evidentiary bar for JW for no practical end. The U.S. citation to the exceptions to North Carolinas public records law for judicial proceedings misapprehends JWs point or, rather it makes it for JW. Id. The whole point is that those exceptions to the public records law are usually not obstacles to JW, but that they would be if North Carolina had to seek a declaratory judgment or preclearance, because then the State could assert them to defeat JWs document requests. See JWI Br. at 11, 17. The U.S. contests JWs interest in maintaining accurate voter records by dismissing Fittons testimony as bare assertions (U.S. Br. at 10) while offering no evidence of its own. The U.S. fails otherwise to dispute in any meaningful way the JWIs account of how the repeal of challenged provisions of HB 589 would enhance the opportunities for voter fraud. See JWI Br. at 11-12; Fitton Decl., 11-12. The U.S. has almost nothing to say in response to Fittons basic point that the absence of a photo ID allows an impersonator to cast a vote on behalf of a validly registered voter. Id., 11. As discussed above, the U.S. incorrectly claims that proof of residence by, for example, a utility bill without a photo ID is as good as requiring a photo ID. See discussion supra at 3. The U.S. makes no response at all to the points that casting a provisional ballot in a precinct other than ones own (one of the repealed provisions of North Carolina law the U.S. seeks to revive) is open to abuse (Fitton Decl., 11); that the opportunities for voter fraud are even greater where voter rolls already are

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inaccurate to some extent; (id., 12); or that an instance of voter fraud can compound the inaccuracies already existing in a states voter registration list. Id. The U.S. also fails to respond to the JWIs argument that the absence of a second step under same-day registration to be specific, the need to show up on Election Day with a photo ID to vote makes fraud easier. Id., 11. The U.S. does note that the repealed same-day registration process included verification by subsequent mailing. U.S. Br. at 10. But the JWIs point was that a mailing is a safeguard in those contexts where the voter has yet to vote. Once a ballot was cast under the old law, the subsequent mailing afforded little protection, because the relevant statute merely requires that the mailing not be returned. N.C. GEN. STAT. 163-82.7(c), (d). This means that a person could register using any real address and then vote the same day. If the resident address is unoccupied, or is a large and busy institution, or is occupied by someone who simply does not notice or return the mailing, the fraud will not be discovered and the ballot will be counted. This example has special resonance given what happened at Warren Wilson, where someone who was not even a student listed that address and was permitted to vote. II. Existing Defendants Will Not Adequately Represent the JWIs.

As the JWIs established at length, North Carolina will not adequately represent the Equal Protection interests of Merrill and JWs members by ensuring that the appropriate results standard is applied under Section 2 of the Voting Rights Act. JWI Br. at 14-17. The JWIs explained how the government, despite any presumptions in its favor, often has an interest that diverges from that of individuals (id. at 13-14); and cited cases

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showing that intervention could be appropriate, despite common objectives with an existing party, in light of a new constitutional defense, or a difference in degree of interest (id. at 16-17); and added that North Carolina could not even assert third-party standing regarding its members potential 14th Amendment claims (id. at 17 n.4). The U.S. makes no response to any of these points. 8 The JWIs also argued that North Carolina has not asserted 14th Amendment defenses relevant to the JWIs in any of the three answers the State submitted in this and two related lawsuits. Id. at 16. In response, the U.S. cites two general allegations in its own complaint and argues that North Carolinas general denials of those allegations show that it plans to defend the positions advanced by the JWIs. U.S. Br. at 15, citing Doc. No. 19, 97, 98. This argument fails because the basic conceit is flawed, namely, the idea that a negative, general denial (of general language) amounts to the same thing as expressing a positive intention to raise a particular issue. 9 By contrast with North Carolinas answers, the JWIs proposed answer in intervention contains specific language setting out as affirmative defenses the particular issues it seeks to raise. Compare Doc. No. 26-1 at 17-18 (JWIs Answer, 4th through 6th Defenses).
8 The U.S. does argue that the JWIs have failed to show that Defendants including . . .

the State Attorney General, who is charged with defending the constitutionality of the States laws will not adequately represent their interests. U.S. Br. at 15. Yet the U.S. own complaint alleges that the State Attorney General openly opposed and criticized HB 589. Doc. No. 1 at 67; see 2nd Fitton Decl., 8 and Ex. A (Attorney Generals letter expressing his strong opposition and urging a veto).

be clear, all that North Carolina stated in its response to the identified paragraphs is that Defendants deny the allegations of paragraph 97 and 98. Doc. No. 19 at 14-15.

To

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North Carolina does not have the JWIs singular interest in obtaining state records, which would be restricted if the U.S. obtained its requested Section 3(c) relief; nor does it have the JWIs interest in exploring the relation between poor voter list maintenance practices and voter fraud. JWI Br. at 17-18; see Fitton Decl., 12-15. In its response, the U.S. offers little more than platitudes about how Defendants are obligated to comply with open records laws and the NVRA. U.S. Br. at 16, 17. This is wholly unconvincing. Governments fail to comply with the law all the time. III. Permissive Intervention Should be Granted.

The JWIs maintained that parties and attorneys who later filed private, related lawsuits met with the President and the Attorney General at the White House prior to the signing of HB 589, and then either planned or anticipated the consolidation of these lawsuits so that North Carolina would face an ideologically united opposition with the U.S. in the lead. JWI Br. at 18-19. The U.S. has failed to comment on the JWIs account of these events in any way. Accordingly, we respectfully submit that this account should be deemed true for the purposes of deciding this motion. In its initial papers, the JWIs cited to one of the many briefs filed by the U.S. in which it supported the applications of various intervenors for permissive intervention. JWI Br. at 20, citing Texas v. Holder, No. 1:12-cv-00128, Doc. No. 6. In that brief, which is appended hereto, the Attorney General stated that, [c]onsistent with his longstanding position in Voting Rights Act cases before this Court, and as represented by Movant-Intervenors in their papers, the Attorney General does not oppose permissive

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intervention under Rule 24(b)(1), although he did contest intervention of right. Id. at 1. The Attorney General went on to state that, [a]s elected officials, residents, and registered voters, Movant-Intervenors possess relevant knowledge and a local perspective on the current and historical facts, citing County Council v. United States, 555 F. Supp. 694, 697 (D.D.C. 1983). The JWIs are the same kind of intervenors and can bring the same kind of local perspective. Indeed, it is unseemly, given its longstanding position, for the U.S. to oppose the JWIs motion to intervene here. It suggests that the U.S. hopes to close the door once it has arranged for the entry of only likeminded parties. The addition of the JWIs will assure a balanced presentation of the facts and evidence, to the advantage of the Court. The U.S. has argued that the JWIs will pursue allegations that are wholly irrelevant to the Voting Rights Act and collateral matters. U.S. Br. at 18. This is incorrect. JWs attorneys have over 20 years of experience working in the Voting Section of the Justice Department, 18 of those in its management or senior management (including service as Chief). The JWIs have no intention of pursuing NVRA or FOIA claims in this litigation or of wasting the Courts time. The U.S. pro forma response that the JWIs can participate as amicus is not well founded. What the JWIs can contribute is the development of important and pertinent evidence in the defense of HB 589 and the pursuit of legal issues that North Carolina has not raised. Accordingly, the JWIs should be allowed to intervene for all purposes. Conclusion The JWIs respectfully request that their motion to intervene be granted.

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Dated: January 21, 2014 By:

JOHNSON LAW FIRM, P.A. /s/ Gene B. Johnson _ Gene B. Johnson State Bar No. 15917 P.O. Box 1288 Arden, North Carolina 28704 Telephone: (828) 650-0859 Facsimile: (828) 650-0913 Email: gbj@johnsonlawnc.com Robert D. Popper New York Bar No. 2357275 JUDICIAL WATCH, INC. 425 Third Street, SW Washington, D.C. 20024 Telephone: (202) 646-5173 Facsimile: (202) 646-5199 Email: rpopper@judicialwatch.org (appearing pursuant to Local Rule 83.1(d)) H. Christopher Coates South Carolina Bar No. 80853 LAW OFFICE OF H. CHRISTOPHER COATES 934 Compass Point Charleston, South Carolina 29412 Telephone:(843) 609-7080 Email: curriecoates@gmail.com (appearing pursuant to Local Rule 83.1(d)) Attorneys for Defendant-Intervenors Christina K. Gallegos-Merrill and Judicial Watch, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of January, 2014, I transmitted the foregoing document to the named parties emails by means of an electronic filing pursuant to the ECF system. /s/ Gene B. Johnson Gene B. Johnson _

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