Case :-cv-00-ejd Document Filed // Page of Brian Selden SBN Embarcadero Road Palo Alto, California 0 Telephone: +.0.. Facsimile: +.0..00 Chad Readler Pro hac application pending John H. McConnell Boulevard, Suite 00 Columbus, Ohio Telephone: +... Facsimile: +... Attorneys for Intervenors PRESIDENT-ELECT DONALD J. TRUMP AND DONALD J. TRUMP FOR PRESIDENT, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA VINZENZ J. KOLLER, v. Plaintiff, JERRY BROWN, in his official capacity as Governor for the State of California, et al., Defendants. Case No. :-cv-0 NOTICE OF MOTION AND MOTION TO INTERVENE BY PRESIDENT- ELECT DONALD J. TRUMP AND DONALD J. TRUMP FOR PRESIDENT, INC. TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on at a.m., or as soon thereafter as the matter may be heard in of the above-entitled court located at, Prospective Intervenors President-elect Donald J. Trump and Donald J. Trump for President, Inc. will respectfully move to intervene in the above-entitled action pursuant to Federal Rule of Civil Procedure. Prospective intervenors seek intervention as of right under subsection (a), or in the alternative permissive intervention under subsection (b). Neither Plaintiff nor Defendant Harris oppose this motion. As of this filing, Defendants Brown and Padilla could not be reached for a position on the motion.
Case :-cv-00-ejd Document Filed // Page of This motion meets the requirements of Rule (a) because the motion is () timely, having been filed just days after Plaintiff filed suit; () the movants have an interest relating to the property or transaction at issue, mainly ensuring state laws binding electors to vote according to the will of the people are upheld; () the movants are so situated that the disposition of the action may as a practical matter impair or impede the movant s ability to protect its interest, namely in securing the office of the President; and () the existing parties do not adequately represen[t] the movants interest, because the state defendants cannot represent the interest of the movants in seeing the President-elect formally elected as President of the United States. Fed. R. Civ. P. (a). Prospective intervenors also meet the requirements for permissive intervention because this motion is timely and will not prejudice any of the parties. This Motion will be based upon this Notice, the accompanying Memorandum of Points and Authorities. Dated: December, Respectfully submitted, By: /s/ Brian Selden Brian Selden Embarcadero Road Palo Alto, California 0 Telephone: +.0.. Facsimile: +.0..00 Chad Readler Pro hac application pending John H. McConnell Boulevard, Suite 00 Columbus, Ohio Telephone: +... Facsimile: +... Attorneys for Intervenors PRESIDENT-ELECT DONALD J. TRUMP AND DONALD J. TRUMP FOR PRESIDENT, INC. -- Case No. :-CV-00
Case :-cv-00-ejd Document Filed // Page of MEMORANDUM OF POINTS AND AUTHORITIES Prospective Intervenors President-elect Donald J. Trump and Donald J. Trump for President, Inc. seek to intervene pursuant to Federal Rule of Civil Procedure. Prospective intervenors seek intervention as of right under subsection (a), or in the alternative permissive intervention under subsection (b). Federal courts broadly construe the rules governing intervention to allow the disposal of lawsuits by involving as many concerned persons as compatible with efficiency and due process. See Citizens for Balanced Use v. Montana Wilderness Ass n, F.d, (th Cir. ). The issue in this case is whether California can require presidential electors to vote for the presidential and vice-presidential candidates who received the highest number of votes in the general election. Because a decision from this Court could affect the President-elect s and the Campaign s rights and their participation in this case will not prejudice the parties, this Court should grant the motion to intervene. Indeed, in a cookie-cutter lawsuit filed by electors in Colorado, the district court granted the President-elect s and the Campaign s motion to intervene. Baca v. Hickenlooper, No. :-cv-wyd-nyw, Dkt. No., Order (D. Colo. filed Dec., ). BACKGROUND On November,, the several States conducted the Nation s quadrennial presidential election. Citizens across the country gathered to cast their votes for the electors for President and Vice President of the United States. Donald Trump and Governor Mike Pence netted the most electoral votes nationwide. They did not, however, win California s fifty-five electoral votes. Californians chose the electors for Secretary Hillary Clinton and Senator Tim Kaine. Because the Democratic nominees received the most votes in California, the fifty-five electors chosen by the California Democratic Party will vote in the Electoral College. To ensure the will of California s voters is honored, California law requires its electors to vote in the Electoral College for the candidates who received the most votes in the presidential election. Cal. Elec. Code 0, 00. Plaintiff is one of those fifty-five electors. Despite his prior commitment to honor the outcome of California s presidential election, Plaintiff now claims he might consider voting for -- Case No. :-CV-00
Case :-cv-00-ejd Document Filed // Page of people other than Secretary Clinton and Senator Kaine. Of course, President-elect Trump and Vice President-elect Mike Pence have more than enough electoral votes to secure their respective offices. Plaintiff s lawsuit, however, threatens to undermine the many laws in other states that sensibly bind their electors votes to represent the will of the citizens, undermining the Electoral College in the process. That is why the President-elect and his Campaign seek to intervene in this case. And because the prospective intervenors meet the requirements of Rule, this Court should grant their motion. ARGUMENT I. THIS COURT SHOULD PERMIT THE PRESIDENT-ELECT AND THE CAMPAIGN TO INTERVENE AS OF RIGHT The President-elect and the Campaign satisfy all of the requirements for intervention as of right. Federal Rule of Civil Procedure (a) governs intervention as of right, and establishes that a motion to intervene should be granted if the motion is () timely ; () the movant has an interest relating to the property or transaction ; () the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant s ability to protect its interest ; and () the existing parties do not adequately represen[t] the movant s interest. First, this motion is timely. In determining timeliness, courts consider () the stage of the proceeding at which an applicant seeks to intervene; () the prejudice to other parties; and () the reason for and length of the delay. United States ex rel. McGough v. Covington Technologies Co., F.d, (th Cir. ). Those factors clearly favor granting the motion. The current motion was filed just days after Plaintiff initiated his action and before Defendants have even made an appearance. The timing of this motion does not prejudice any of the existing parties to the case. Second, the President-elect and his Campaign have legal interests that are sufficiently related to the subject of this action. An applicant demonstrates a significantly protectable interest when the injunctive relief sought by the plaintiffs will have direct, immediate, and harmful effects upon a third party s legally protectable interests. Sw. Ctr. for Biological Diversity v. Berg, F.d, (th Cir. 0). In this lawsuit, the interests of the -- Case No. :-CV-00
Case :-cv-00-ejd Document Filed // Page of President-elect and his Campaign are clear. The President-elect won the majority of electoral votes in the several States. Many of those states (like California) require their electors to vote for the candidates who won the most votes on election day. Should this Court conclude (despite decades of legal and historical precedent to the contrary) that it is unconstitutional for California to bind its presidential electors, similar statutes in other states where the President-elect won may also be in jeopardy. Indeed, Plaintiff recognizes as much. Cmplt.. The President-elect and his Campaign therefore have a direct, substantial, and legally protectable interest in preventing the invalidation of California s law requiring presidential electors to honor both their prior commitment and the voters will. Third, this lawsuit threatens to impair or impede prospective intervenors rights. Fed. R. Civ. P. (a). This Court follow[s] the guidance of Rule advisory committee notes that state that [i]f an absentee would be substantially affected in a practical sense by the determination made in an action, he should, as a general rule, be entitled to intervene. Sw. Ctr. for Biological Diversity, F.d at (quoting Fed. R. Civ. P. advisory committee s notes). If this Court invalidates California s statute, similar state statutes across the land will be in question. Some of those laws directly affect the President-elect and the Campaign because those statutes bind electors to vote for the President-elect. Finally, the existing parties to the litigation will not adequately represent prospective intervenors interests. The burden imposed by this element of Rule (a) is minimal. Trbovich v. United Mine Workers, 0 U.S., n. ()). If the absentee s interest is similar to, but not identical with, that of one of the parties, a discriminating judgment is required on the circumstances of the particular case, although intervention ordinarily should be allowed unless it is clear that the party will provide adequate representation for the absentee. C Fed. Prac. & Proc. Civ. 0 (d ed.). A party may even intervene in a case where its interests are identical to those of an existing party if it makes a concrete showing of circumstances in the particular case that make the representation inadequate. Id. In this proceeding, the state defendants are responsible for protecting the State s interest in the statute. But the President-elect and his Campaign have distinct interests, among them () -- Case No. :-CV-00
Case :-cv-00-ejd Document Filed // Page of ensuring other states laws are respected, () ensuring that the Electoral College process is honored in the 0 states and the District of Columbia, and () ensuring that Mr. Trump is officially elected to the presidency. The state officials cannot represent these interests. For the foregoing reasons, the President-elect and his Campaign satisfy the requirements for intervention as of right under Rule (a), and this Court should grant the motion. II. THIS COURT SHOULD ALLOW THE PRESIDENT-ELECT AND THE CAMPAIGN PERMISSIVE INTERVENTION Even if this Court concludes that the President-elect and the Campaign are not allowed to intervene as of right, the Court should nonetheless permit intervention under Federal Rule of Civil Procedure (b). That Rule provides that upon timely motion, the court may permit anyone to intervene who... has a claim or defense that shares with the main action a common question of law or fact. Fed. R. Civ. P. (b)()(b). The Rule further provides that [i]n exercising its discretion the court must consider whether the intervention will unduly delay or prejudice the adjudication of original parties rights. Fed. R. Civ. P. (b)(). The President-elect and his Campaign will assert defenses that relate directly to the central issues in this case. Indeed, they intend to argue that () laches bars Plaintiff s claims, () Plaintiff lacks Article III standing, and () Plaintiff s lawsuit presents a political question. If permitted to intervene, the President-elect and the Campaign can present evidence regarding the injury that could result if this Court finds California s statute unconstitutional. Further, allowing intervention will not delay these proceedings, nor will it prejudice the existing parties. This case is in its infancy and this motion is filed before Defendants have appeared. Thus, if the Court determines that President-Elect Trump and his Campaign cannot intervene as of right, given the fundamental importance of the rights implicated by this litigation, this Court should exercise its discretion and allow permissive intervention. CONCLUSION For these reasons, the Court should grant the motion to intervene. -- Case No. :-CV-00
Case :-cv-00-ejd Document Filed // Page of Dated: December, Respectfully submitted, By: /s/ Brian Selden Brian Selden Embarcadero Road Palo Alto, California 0 Telephone: +.0.. Facsimile: +.0..00 Chad Readler Pro hac application pending John H. McConnell Boulevard, Suite 00 Columbus, Ohio Telephone: +... Facsimile: +... Attorneys for Intervenors PRESIDENT-ELECT DONALD J. TRUMP AND DONALD J. TRUMP FOR PRESIDENT, INC. -- Case No. :-CV-00
Case :-cv-00-ejd Document Filed // Page of CERTIFICATE OF SERVICE I certify that on December,, the foregoing was electronically filed with the United States District Court for the Northern District of California using the CM/ECF system. All parties have consented to receive electronic service and will be served by the ECF system. Dated: December, By: /s/_brian Selden Brian Selden Embarcadero Road Palo Alto, California 0 Telephone: +.0.. Facsimile: +.0..00 -- Case No. :-CV-00