IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division VIRGINIA STATE CONFERENCE OF ) NATIONAL ASSOCIATION FOR THE ) ADVANCEMENT OF COLORED ) PEOPLE BRANCHES, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 2:08 CV 508 RAJ ) TIMOTHY M. KAINE, et al., ) ) Defendants, ) and ) ) ALBEMARLE COUNTY REPUBLICAN ) COMMITTEE, as an organization and on ) behalf of its members and candidates; ) CHRISTIAN SCHOENEWALD, Chair, ) Albemarle County Republican Committee; ) REPUBLICAN PARTY OF NORFOLK, ) as an organization and on behalf of its ) members and candidates; PAMELA BROWN, ) Chair, Republican Party of Norfolk; ) THIRD CONGRESSIONAL DISTRICT ) REPUBLICAN COMMITTEE, on behalf ) of its members and candidates; ) MICHAEL WADE, Chair, Third ) Congressional District Republican Committee; ) ROANOKE CITY REPUBLICAN ) COMMITTEE, as an organization and ) on behalf of its members and candidates; ) ADAM BOITNOTT, Chair, Roanoke City ) Republican Committee; SECOND ) CONGRESSIONAL DISTRICT ) REPUBLICAN COMMITTEE, on behalf of ) its members and candidates, and GARY ) BYLER, Chair, Second Congressional ) District, Republican Committee; JON ) ONDRAK; and CHERYLN STARLET ) STEVENS, ) Putative Intervenor ) Defendants. )

2 MEMORANDUM IN SUPPORT OF MOTION TO INTERVENE The Putative Intervenor Defendants, Albemarle County Republican Committee, Christian Schoenewald, Republican Party of Norfolk, Pamela Brown, Michael Wade, Roanoke City Republican Committee, Adam Boitnott, Second Congressional District Republican Committee, Gary Byler, Third Congressional District Republican Committee, Jon Ondrak, and Cherlyn Starlet Stevens (together, the Intervenor Defendants ), by counsel and pursuant to Fed. R. Civ. P. 24(a), have moved to intervene because they have vital interests in the Election that is the subject of this action, and because they are so situated that disposing of this action may as a practical matter impair or impede their ability to protect their interests, which the existing parties will not adequately represent. Alternatively, the Intervenor Defendants seek the Court s permission to intervene under Rule 24(b). For the reasons explained in this Memorandum, the Court should grant the Intervenor Defendants Motion to Intervene. INTRODUCTION Plaintiffs, the Virginia State Conference of the National Association for the Advancement of Colored People Branches (the NAACP), and several individuals allegedly registered to vote in Virginia (the Individual Plaintiffs) (together, the Plaintiffs ), filed this lawsuit against Virginia Governor Timothy M. Kaine, the Virginia State Board of Elections, and the Electoral Boards and General Registrars for the cities of Richmond, Norfolk, and Virginia Beach (together, the Defendants). According to Plaintiffs, the Commonwealth of Virginia and its localities are inadequately prepared for the upcoming Presidential Election. Specifically, Plaintiffs contend that voting equipment has been allocated between and among Virginia s 136 cities and counties in an irrational, non-uniform, and discriminatory manner that burdens the voting rights of their 2

3 members and disenfranchises voters, particularly African-American voters in Richmond, Norfolk and Virginia Beach. (Compl. at 1-2.) To redress these claims, Plaintiffs seek, among other relief, an order from this Court instructing poll workers to offer voters whose wait to vote by machine is likely to exceed 45 minutes the option to vote with a paper ballot, and extending voting hours for the November 4, 2008 General Election to 9:00 p.m., so to provide voters with more time to exercise their franchise. (Compl. at 3.) Intervenor Defendants are registered Virginia voters who live within and without the targeted cities, and whose voting rights will be affected by the relief requested by Plaintiffs. Intervenor-Defendants also include and Republican Party committees whose members and candidates will be directly impacted by any relief the Court may order. The Intervenor- Defendants do not oppose all remedies that might be available to the Plaintiffs. In fact, Intervenor-Defendants have no objection to the redistribution of voting machines if the Court, upon hearing all evidence, determines such a redistribution is legally and factually justified. However, the Intervenor-Defendants constitutional rights and interests would be violated by the unauthorized expansion of polling hours in selected jurisdictions of the Commonwealth and so they oppose that remedy. Intervenor-Defendants also have an interest in the unauthorized use of paper ballots. STATEMENT OF FACTS The Albemarle County Republican Committee, Republican Party of Norfolk, and Roanoke City Republican Committee each is an official local committee of the Republican Party of Virginia. Each local committee represents all of its members, and exists to promote and protect the interests of those members and the candidates they have nominated for office, 3

4 including in the 2008 General Election for President, Senate and the House of Representatives. 1 The local party committees, and their candidates and members, desire and are entitled by Virginia law to an Election that is administered in a fair, orderly, and uniform manner throughout the Commonwealth. Some aspects of the relief Plaintiffs seek such as extended poll hours would undermine those interests by establishing different voting procedures and different voting hours for similarly-situated voters in different localities. The Second Congressional District Republican Committee and Third Congressional District Republican Committee are organs of the Republican Party of Virginia that are devoted to elections in their respective Congressional Districts. The Second Congressional District covers the portion of Virginia on the Delmarva Peninsula in Accomack and Northampton Counties, and the cities of Norfolk and Virginia Beach. The Third Congressional District stretches from East Richmond into portions of Hampton Roads, including Newport News and Hampton, and areas neighboring the City of Norfolk. If the Court extends polling hours in Norfolk and Virginia Beach, for example, voters in the Second Congressional District will be subjected to significantly different election rules and procedures. Those who live in Norfolk would be permitted to cast ballots until 9 p.m., while voters in Northampton would only be allowed to vote until 7 p.m. in the same congressional election. A similar dynamic would exist in the Third Congressional District, where voters in 1 These local party committees have standing to assert claims and defend actions based upon injuries to themselves or their members. United Food and Commercial Workers v. Brown Group, 517 U.S. 544 (1996); Hunt v. Washington State Apple Advertising Comm n, 432 U.S. 333, 343 (1977) ( We have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests its seeks to protect are germane to the organization s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. ); International Union, UAW v. Brock, 477 U.S. 274, 289 (1986)). 4

5 certain areas of the City of Richmond would be permitted to vote for hours after the polls would have closed for voters in neighboring Henrico County. Additionally, the Second Congressional District Republican Committee s candidate for the U.S. House of Representatives may be impacted by late hours in some districts rather than others. Pamela Brown is a registered voter in the City of Norfolk a city that is a target of the Plaintiffs lawsuit. Jon Ondrak and Cherlyn Starlet Stevens each is a registered voter in the City of Richmond, although Mr. Ondrak votes in the Third Congressional District and Ms. Stevens votes in the Seventh Congressional District. Ms. Brown, Mr. Ondrak and Ms. Stevens each intends to vote in the upcoming presidential election. As such, their statutory and constitutional rights are directly implicated by the relief Plaintiffs seek. Adam Boitnott, Gary Byler, Christian Schoenewald, and Michael Wade also are registered Virginia voters who intend to vote on November 4, 2008, but they are registered in localities that are not targeted by Plaintiffs lawsuit. Mr. Boitnott is a registered voter in the City of Roanoke; Mr. Byler is a registered voter inn Northampton County; Mr. Schoenewald is a registered voter in Albemarle County, and Mr. Wade is a registered voter in the City of Hampton. Messrs. Boitnott, Byler, Schoenewald and Wade s statutory and constitutional rights are directly implicated by the relief Plaintiffs seek, which would permit similarly-situated voters in other localities two extra hours to cast their ballots, and to vote by paper ballots in situations not authorized by Virginia law opportunities that would be denied to them in similar circumstances, even if they too have to wait in line to vote. The existing Defendants will not adequately represent the Intervenor Defendants interests in this case. These Defendants are state and local officials who are responsible for the conduct of the Election. They are not registered voters whose constitutional rights would be 5

6 directly violated by the relief Plaintiffs are requesting. Moreover, Defendants could attempt to resolve this litigation by purporting to agree to some or all of the requested relief a settlement that would directly impact Intervenor Defendants rights as registered voters, but in which Intervenor Defendants or any other registered voters would have no input. ARGUMENT I. Intervenor Defendants Are Entitled To Intervene As Of Right. Federal Rule of Civil Procedure 24(a)(2) provides that upon timely application, anyone shall be permitted to intervene in an action: [W]hen the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant s ability to protect that interest, unless the applicant s interest is adequately represented by existing parties. Under Rule 24(a)(2) four elements must be met in order for a Motion to Intervene as of right to be granted: (1) the application must be timely; (2) the applicant must have an interest in the subject matter sufficient to merit intervention; (3) the denial of intervention would impair or impede the applicant s ability to protect its interest; and (4) the applicant s interest is not adequately represented by the existing parties to the litigation. Scardelletti v. Debarr, 265 F.3d 195, 202 (4th Cir. 2001), citing Houston General Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir.1999). In determining whether to grant a Motion to Intervene, courts are guided primarily by practical and equitable considerations, and courts are directed to construe Rule 24 liberally in favor of intervention. Arakaki v. Cayetano, 324 F.3d 6

7 1078 (9th Cir. 2003), cert. denied, 124 S.Ct. 570, 540 U.S. 1017, 157 L.Ed.2d 430. Here, Intervenor Defendants meet all four criteria. 1. The Motion to Intervene is timely filed. An intervention motion must be timely filed, regardless of whether the Intervenor Defendants are seeking intervention as a matter of right, or permissive intervention. Rule 24 does not attempt to define the term [timely] or specify rigid time limits. United States v. South Bend Community Sch. Corp., 710 F.2d 394, 396 (7th Cir.1983); see Black v. Central Motor Lines Inc., 500 F.2d 407, 408 (4th Cir.1974) (noting that Rule 24 is silent as to what constitutes a timely application and the question must therefore be answered in each case by the exercise of the sound discretion of the court). Instead, in determining whether a Motion to Intervene is timely filed, the Court must assess, in light of all the circumstances, including the length of time since the applicant knew of his interest in the case, prejudice to the existing parties, prejudice to the applicant, and the existence of any unusual circumstances. Utah Ass n of Counties v. Clinton, F.3d 1246, 1250 (10th Cir. 2001). In this case, Intervenor Defendants filed their Motion mere days after the Plaintiffs filed this lawsuit, and Defendants responsive pleadings are not due for several weeks. As such, the existing parties interests and positions will not be prejudiced, and the litigation will not be delayed, if the Court grants this Motion. If the Court were to deny the Intervenor Defendants Motion, however, Intervenor Defendants would be substantially prejudiced. Plaintiffs are seeking relief which, as a practical matter, must be granted or denied within the next six days. To that end, Plaintiffs have filed motions seeking a Preliminary Injunction and a Temporary Restraining Order, and are attempting to obtain an emergency hearing. In these circumstances, Intervenor Defendants must be permitted to join this case now in order to have a meaningful 7

8 opportunity to advance their interests and defend their constitutional rights. Intervenor Defendants are prepared to proceed immediately and without delay. For these reasons, the Motion to Intervene was timely filed. 2. Intervenor Defendants Have An Interest In The Subject Matter Sufficient To Merit Intervention. Rule 24(a) does not specify the nature of the interest required for intervention as a matter of right, but the Supreme Court held that what is obviously meant... is a significantly protectable interest. Donaldson v. United States, 400 U.S. 517, 531 (1971). Whether an applicant has an interest sufficient to warrant intervention as a matter of right is a highly factspecific determination, Security Ins. Co. v. Schipporeit, Inc., 69 F.3d 1377, 1381 (7th Cir. 1995), and the interest test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process, Nuesse, 385 F.2d at 700; accord Sierra Club v. Espy, 18 F.3d 1202, 1207 (5th Cir. 1994); Ceres Gulf v. Cooper, 957 F.2d 1199, 1203 n. 10 (5th Cir. 1992); Sanguine, Ltd. v. U.S. Dep t of Interior, 736 F.2d 1416, 1420 (10th Cir. 1984). In the case at bar, Intervenor Defendants have a substantial interest in the fair, orderly, and uniform application of Virginia s election laws. In fact, maintaining the election system that governed their exercise of political power has been recognized as a basis for intervention as of right under Rule 24. Meek v. Metropolitan Dade County, 985 F.2d 1471, 1480 (11th Cir. 1993), cited with approval in Miller, 103 F.3d at Moreover, intervention is especially appropriate in cases involving the public interest. 6 Moore s Federal Practice 24.03[2][c] (The interest requirement may be judged by a more lenient standard if the case involves a public interest question....). In such cases, the representation of divergent interests is extremely important. Id. In this case, it is not enough to 8

9 hear, consider, and protect only the interests of Plaintiffs and of Defendants, the government officials who oversee the administration of elections. This Court also should consider the divergent interests of individual voters such as Intervenor Defendants. These interests include Intervenor Defendants constitutional rights to due process and equal protection of the laws rights which stand to be abridged by the arbitrary, selective nature of the relief Plaintiffs seek that would subject similarly-situated voters differently depending on where they reside, or how long the voting line is in their precinct. For these reasons, Intervenor Defendants have a substantial interest in the Election that is the subject matter of this case sufficient to warrant intervention. 3. Denial Of Intervention Would Impair Or Impede Intervenor Defendants Ability To Protect Their Interests. To satisfy the third element of the test for intervention as a matter of right, Intervenor Defendants must show that the suit may as a practical matter impair or impede [their] ability to protect [their] interest. Fed. R. Civ. P. 24(a)(2). In this case, time does not permit Intervenor Defendants to bring a separate action to protect their rights, and so intervention as of right is particularly appropriate. 4. Intervenor Defendants Interests Are Not Adequately Represented. With respect to the fourth element of the intervention test, although the burden is on the Intervenor Defendants to show that the representation by the existing parties may be inadequate, this burden is minimal. Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636 n. 10 (1972). An applicant may fulfill this burden by showing collusion between the representative and an opposing party, that the representative has an interest adverse to the applicant, or that the representative failed in fulfilling his duty to represent the applicant s interest. Sanguine, Ltd., 736 F.2d at [T]he possibility of divergence of interest need not 9

10 be great in order to satisfy the burden of the applicants.... Natural Resources Defense Council, 578 F.2d at Here, Intervenor Defendants Motion to Intervene clearly satisfies the minimal burden under Rule 24(a)(2) of showing that the representation of Intervenor Defendants interests by the existing parties may not be adequate. Indeed, in this case, only Intervenor Defendants can adequately represent their interests and the interests of voters, local party members and candidates who believe that the arbitrary and selective use of paper ballots and extended polling hours violates Virginia law and their constitutional rights. For all of these reasons, the Court should grant the Motion to Intervene as of right. II. Alternatively, Intervenor Defendants Should Be Permitted To Intervene Under Fed. R. Civ. P. 24(b). In the alternative, Intervenor Defendants should be allowed to intervene permissively. Under Rule 24 (b): Upon timely application, anyone may be permitted to intervene in an action... when an applicant s claim or defense and the main action have a question of law or fact in common.... In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. In the present case, Intervenor Defendants will assert several legal defenses that are directly related to Plaintiffs claims, including the defense that the arbitrary, selective relief Plaintiffs seek is not authorized by Virginia law and would violate the U.S. Constitution. Furthermore, intervention at this early stage would not delay or prejudice the adjudication of the original parties rights. Intervenor Defendants do not seek to expand the scope of this proceeding by incorporating new issues that are unrelated to Plaintiffs allegations. Rather, they seek only to ensure that their own interests and those of voters like them across Virginia are protected adequately. Intervenor Defendants participation in this case also would not result in 10

11 an unmanageable number of parties and clearly would be compatible with efficiency and due process. To the contrary, intervention would promote judicial efficiency by diminishing the prospect of future litigation by Intervenor Defendants or others with have similar interests. For these reasons, Intervenor Defendants should be permitted to intervene under Rule 24(b). CONCLUSION For the foregoing reasons, Intervenor Defendants respectfully urge the Court to grant their Motion to Intervene. ALBEMARLE COUNTY REPUBLICAN COMMITTEE, CHRISTIAN SCHOENEWALD, REPUBLICAN PARTY OF NORFOLK, PAMELA BROWN, MICHAEL WADE, ROANOKE CITY REPUBLICAN COMMITTEE, ADAM BOITNOTT, SECOND CONGRESSIONAL DISTRICT REPUBLICAN COMMITTEE, GARY BYLER, THIRD CONGRESSIONAL DISTRICT REPUBLICAN COMMITTEE, JON ONDRAK, and CHERLYN STARLET STEVENS _/s/ Cameron S. Matheson Cameron S. Matheson (VSB No ) LECLAIRRYAN, A PROFESSIONAL CORPORATION Riverfront Plaza, East Tower 951 East Byrd Street Post Office Box 2499 Richmond, Virginia Telephone: (804) Facsimile: (804) cameron.matheson@leclairryan.com Lee E. Goodman (VSB No ) Christopher B. Ashby (VSB No ) LECLAIRRYAN, A PROFESSIONAL CORPORATION 1101 Connecticut Avenue, NW, Suite 600 Washington, District of Columbia Telephone: (202) Facsimile: (202) Counsel for Intervenor Defendants 11

12 CERTIFICATE OF FILING AND SERVICE I certify that on November 3, 2008, I filed this Memorandum electronically with the Clerk of Court using the CM/ECF System, which will provide notice of this filing to all persons indicated on the filing receipt. In addition, I sent a copy of this Memorandum via facsimile to: Judith Browne Peter R. Messitt Kumiki Gibson James V. Ingold Elizabeth Westfall Office of the Attorney General M. Aurora Vasquez 900 East Main Street James O. Freeman Richmond, VA Francisco Maldonado Fax: (804) Maria Blanco Advancement Project John A. Gibney, Jr M Street, NW, Suite 910 Thompson McMullen Washington, DC Shockoe Slip Fax: (202) Richmond, VA Fax: (804) Justin P. Keating Beins, Axelrod, P.C. Counsel for Defendants 1625 Massachusetts Avenue, NW Suite 500 Washington, DC Fax: (202) Angela Ciccolo Anson Asaka NAACP 4805 Mount Hope Drive Baltimore, MD Fax: (410) Counsel for Plaintiffs /s/ Cameron S. Matheson (VSB No ) LECLAIRRYAN, A PROFESSIONAL CORPORATION Riverfront Plaza, East Tower 951 East Byrd Street Post Office Box 2499 Richmond, Virginia Telephone: (804) Facsimile: (804) cameron.matheson@leclairryan.com 12