Marc Veasey v. Rick Perry ( 2014 )

Case: 14-40003 Document: 00512722678 Page: 1 Date Filed: 08/05/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 5, 2014
No. 14-40003
Lyle W. Cayce
Clerk
MARC VEASEY; JANE HAMILTON; SERGIO DELEON; FLOYD CARRIER;
ANNA BURNS; MICHAEL MONTEZ; PENNY POPE; OSCAR ORTIZ;
KOBY OZIAS; LEAGUE OF UNITED LATIN AMERICAN CITIZENS;
JOHN MELLOR-CRUMLEY; DALLAS COUNTY, TEXAS,
Plaintiffs–Appellees,
versus
RICK PERRY, in His Official Capacity as Governor of Texas; et al.,
Defendants.
_________________________________________________
UNITED STATES OF AMERICA,
Plaintiff–Appellee
TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND;
IMANI CLARK;
TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES
AND COUNTY COMMISSIONERS; AURICA WASHINGTON;
CRYSTAL OWENS; MICHELLE BESSIAKE;
MARIA LONGORIA BENAVIDES,
Intervenor Plaintiffs–Appellees,
versus
STATE OF TEXAS; et al.,
Defendants.
Case: 14-40003 Document: 00512722678 Page: 2 Date Filed: 08/05/2014
TRUE THE VOTE,
Movant–Appellant.
Appeals from the United States District Court
for the Southern District of Texas
No. 2:13-CV-193
Before DAVIS, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
This expedited appeal, which included briefing and oral argument,
involves Texas’s recently enacted Voter ID law, which True the Vote supported
and sponsored as a public-interest group. Various plaintiffs’ groups and the
United States have sued the state, claiming the law violates the Voting Rights
Act and the Fourteenth and Fifteenth Amendments. Several other groups
were permitted to intervene on behalf of the plaintiffs. True the Vote timely
moved to intervene as of right to defend the statute. The United States
opposed the motion, and the district judge, without issuing an independent
opinion but relying almost exclusively on a Florida court order in a different
case, denied intervention. Because True the Vote has not shown that the State
of Texas cannot adequately represent its interests in this litigation, we affirm
the order denying intervention as of right.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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I.
A party seeking to intervene as of right must satisfy four requirements:
(1) The application must be timely; (2) the applicant must have an inter-
est relating to the property or transaction that is the subject of the
action; (3) the applicant must be so situated that the disposition of the
action may, as a practical matter, impair or impede its ability to protect
its interest; and (4) the applicant’s interest must be inadequately rep-
resented by the existing parties to the suit.
Brumfield v. Dodd, 749 F.3d 339, 341 (5th Cir. 2014) (citations omitted). There
is no dispute about timeliness, so we focus on the other three factors and review
the district court’s decision de novo. Sierra Club v. Espy, 18 F.3d 1202, 1207
(5th Cir. 1994).
II.
We assume, without deciding, that True the Vote may have a sufficient
interest in the litigation that might be impaired by the disposition of the action.
But it has not shown that Texas will inadequately represent its interests. In
all of our cases permitting intervention, the incongruity of interests was far
more pronounced. In City of Houston v. American Traffic Solutions, Inc., 668
F.3d 291, 294 (5th Cir. 2012), the city had an interest in not upholding the
charter amendment eliminating traffic cameras because the camera program
had generated millions of dollars in revenue. The proponents of the charter
amendment were allowed to intervene as a result. In Sierra Club, 18 F.3d at
1208, the Forest Service had the public interest in mind whereas the
intervenors—a group of loggers—had only their economic interests to advance.
In Edwards v. City of Houston, 78 F.3d 983, 1005 (5th Cir. 1996) (en banc), and
other similar cases, the government had an incentive to come to agreement
with the plaintiffs, whereas the intervenors wanted to maintain the govern-
ment program without change.
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No. 14-40003
In Brumfield, 749 F.3d at 346, the court held that although both Louisi-
ana and the parents had the same objective in upholding a state voucher
program, Louisiana’s interests were broader because it had to maintain
relations with the federal government and the courts with continuing
desegregation jurisdiction; moreover, the parents raised jurisdictional
arguments not urged by the state.
True the Vote avers that this case is similar to Brumfield: “The State of
Texas has many interests in this case that include not only maintaining [the
Voter ID law], but also its relationship with the federal government and the
courts that have continuing jurisdiction over voting rights matters.” But “con-
tinuing jurisdiction” over federal questions generally is not the same thing as
continuing jurisdiction of a desegregation court, which must approve in
advance changes that may affect the order. True the Vote also maintains that
it will show evidence of voter fraud which Texas is not willing to produce
because doing so would be an admission of National Voter Registration Act
violations, but Texas has shown evidence of such fraud in the related pre-
clearance litigation and in the legislature.
True the Vote next contends that it has a unique interest in the case
because plaintiffs have pointed to statements and communications made by
True the Vote to prove intentional discrimination. But the state has the same
interest in rebutting any such inference of discrimination from these state-
ments. True the Vote claims that its interests would not be adequately repre-
sented at the remedial stage because its evidence would allow the court to per-
mit the legislature to cure the law in various ways. True the Vote does not
explain, however, why Texas would not have the same interest in such a cure.
Finally, True the Vote claims it needs to intervene to defend its reputation.
Nothing in the caselaw, however, recognizes such an abstractly defined
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No. 14-40003
interest.
Although the burden to show inadequate representation is “minimal,”
Sierra Club, 18 F.3d at 1207; Brumfield, 749 F.3d at 345, this requirement
must have some teeth. Hence we normally presume that when the existing
party has the same ultimate objective as the proposed intervenor, intervention
should be denied unless the proposed intervenor shows “adversity of interest,
collusion, or nonfeasance on the part of the existing party to overcome the
presumption.” Brumfield, 749 F.3d at 345 (quoting Edwards, 78 F.3d at 1005).
Here the ultimate objective is the same and True the Vote has not shown a
sufficient disalignment of interest to warrant intervention. Moreover, True
the Vote will be able to assist the district court and promote its interests to the
extent that it is permitted to participate as amicus curiae.
The order denying intervention as of right is AFFIRMED.
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