Michael Bost v. Democratic Party of Illinois ( 2023 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-3034
MICHAEL J. BOST, et al.,
Plaintiffs-Appellees,
v.
ILLINOIS STATE BOARD OF ELECTIONS
and BERNADETTE MATTHEWS, in her capacity
as the Executive Director of the Illinois State
Board of Elections,
Defendants-Appellees.
APPEAL OF: DEMOCRATIC PARTY OF ILLINOIS
Proposed Intervenor.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 22-CV-2754 — John F. Kness, Judge.
____________________
ARGUED APRIL 20, 2023 — DECIDED JULY 27, 2023
____________________
Before EASTERBROOK, ROVNER, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Illinois law allows mail-in ballots
postmarked on or by Election Day to be counted if received
2 No. 22-3034
up to two weeks after Election Day. The plaintiffs in this case
contend that this extended ballot counting violates federal
law and filed this suit to enjoin the practice. Within a month,
the Democratic Party of Illinois (“DPI”) filed a motion to in-
tervene in defense of the law, arguing for either intervention
as of right or, in the alternative, permissive intervention. The
district court denied DPI’s motion, and this appeal followed.
The only question before us on interlocutory appeal is
whether the district court erred in denying DPI’s motion to
intervene. Because DPI failed to point to any reason that the
state’s representation of its interests “may be” inadequate,
and because the district court’s focus on public time and re-
sources over DPI’s individual interests was not an abuse of its
discretion, we affirm.
I. Background
Federal law establishes “[t]he Tuesday after the 1st Mon-
day in November[] in every even numbered year” as “the day
for the election.” 2 U.S.C. § 7. State Congressman Michael
Bost, and two voters and former presidential electors, Laura
Pollastrini and Susan Sweeney (collectively, “Plaintiffs”) con-
tend that the Illinois statute allowing the counting of ballots
received after Election Day contravenes this federal require-
ment. See 10 ILCS § 5/19-8(c). Together, they filed this suit
against the Illinois State Board of Elections (“the Board”),
which is “responsible for supervising the administration of
election laws throughout Illinois,” and Bernadette Matthews,
in her official capacity as Executive Director of the Board.
DPI became concerned about the impact of this suit on its
work as a political organization and on the voting rights of its
members. To protect these interests, DPI filed a motion in the
No. 22-3034 3
district court to intervene as a defendant under Federal Rule
of Civil Procedure 24. In that motion, DPI maintained that it
was entitled to intervention as of right or, in the alternative,
that the district court should grant it permissive intervention.
The district court denied the motion. First, the court found
that DPI’s interests were adequately represented by the state’s
defense of the statute and therefore denied its motion to inter-
vene as of right. It next rejected DPI’s argument for permis-
sive intervention, concluding that allowing another party to
intervene would divert court time and resources from an al-
ready time-sensitive case. Nevertheless, the court allowed
DPI to proceed as amicus curiae if it decided to do so.
We now affirm, but take this opportunity to clarify again
our standards for intervention as of right.
II. Analysis
“Because denial of a motion to intervene essentially ends
the litigation for the movant, such orders are final and appeal-
able.” State v. City of Chicago, 912 F.3d 979, 984 (7th Cir. 2019)
(quoting Reich v. ABC/York-Estes Corp., 64 F.3d 316, 321 (7th
Cir. 1995)). We consider first the arguments for intervention
as of right and then those for permissive intervention.
A. Intervention as of Right
Rule 24(a)(2) requires the court to allow intervention if the
would-be intervenor can prove: “(1) timely application; (2) an
interest relating to the subject matter of the action; (3) poten-
tial impairment, as a practical matter, of that interest by the
disposition of the action; and (4) lack of adequate representa-
tion of the interest by the existing parties to the action.” City
of Chicago, 912 F.3d at 984 (cleaned up). We review these fac-
tors de novo, Driftless Area Land Conservancy v. Huebsch, 969
4 No. 22-3034
F.3d 742, 746 (7th Cir. 2020), except for the timeliness factor,
which we review for abuse of discretion. Cook Cnty., Illinois v.
Texas, 37 F.4th 1335, 1341 (7th Cir. 2022), cert. denied sub nom.
Texas v. Cook Cnty., 143 S. Ct. 565 (2023).
This case focuses on factors two and four of the test for
intervention as of right: whether DPI has any interests in the
subject matter of the litigation that warrant intervention and
whether the board adequately represents those interests. We
take each in turn.
1. Unique Interests
Intervention as of right requires a would-be intervenor to
have a “direct, significant and legally protectable interest in
the [subject] at issue in the lawsuit.” Keith v. Daley, 764 F.2d
1265, 1268 (7th Cir. 1985). We have used the shorthand
“unique,” Wisconsin Education Association Council v. Walker
(“WEAC”), 705 F.3d 640, 658 (7th Cir. 2013), referenced by the
district court, to require that the interest be “based on a right
that belongs to the proposed intervenor rather than to an ex-
isting party in the suit.” See Planned Parenthood of Wisconsin,
Inc. v. Kaul, 942 F.3d 793, 798 (7th Cir. 2019) (quoting Keith, 764
F.2d at 1268 and clarifying our use of “unique”). But we have
never required a right that belongs only to the proposed inter-
venor, or even a right that belongs to the proposed intervenor
and not to the existing party. Properly understood, the
“unique” interest requirement demands only that an interest
belong to the would-be intervenor in its own right, rather than
derived from the rights of an existing party. See id. at 806
(Sykes, J., concurring).
DPI points to two interests that warrant its intervention in
the lawsuit: (1) an interest as an organization that would have
No. 22-3034 5
to expend additional resources to “get out the vote,” should
Illinois election law change; and (2) an associational interest
on behalf of its members, Illinois voters whose mail-in ballots
might not be counted, should the law change. Both satisfy our
requirement for a “direct, significant and legally protectable
interest.” 1 Each interest belongs to DPI irrespective of the role
of the Board. That is what our precedent requires: a personal
stake that is not dependent on the interests of an existing
party.2
1 We have held that this interest must be at least as significant as the
injury required for Article III standing. Planned Parenthood, 942 F.3d at 798.
Well-settled standing precedent supports both of DPI’s asserted interests.
See Common Cause Indiana v. Lawson, 937 F.3d 944, 950 (7th Cir. 2019) (or-
ganizational interest) and Crawford v. Marion Cnty. Election Bd., 553 U.S.
181, 188 n.7 (2008) (associational interest).
2 Indeed, tracing the “unique” term back to its initial use reveals ex-
actly that: We first used the term in Keith as shorthand for an interest that
is “based on a right that belongs to the proposed intervenor rather than to
an existing party in the suit.” See Planned Parenthood, 942 F.3d at 798 (quot-
ing Keith, 764 F.2d at 1268). Keith, in turn, took this requirement from our
opinion in Wade v. Goldschmidt, 673 F.2d 182, 185 n.5 (7th Cir. 1982). Wade
quoted this proposition directly from a district court opinion, In re Penn
Cent. Com. Paper Litig., 62 F.R.D. 341 (S.D.N.Y. 1974), aff'd sub nom. Shulman
v. Goldman, Sachs, & Co., 515 F.2d 505 (2d Cir. 1975), which denied inter-
vention to a party that sought to assert an interest exclusively derived
from the existing defendant’s rights rather than its own. As one of our col-
leagues recently put it, “‘unique’ means an interest that is independent of
an existing party’s, not different from an existing party’s.” Planned
Parenthood, 942 F.3d at 806 (Sykes, J., concurring). While a shared interest
can satisfy the requirements for intervention, a wholly derivative interest
cannot.
6 No. 22-3034
While the district court properly reached this conclusion
as to DPI’s organizational interest, it erred in holding that
DPI’s associational interest was not “unique” within the
meaning of our caselaw. As the district court saw it, the prob-
lem was that “the State Board’s interest is in preserving the
law for all Illinois voters, DPI Members and constituents in-
cluded.” But again, an interest need not belong only to the ap-
plicant for intervention to be “unique” as we have used it. To
the contrary, while DPI and the Board each have an interest
in representing some of the same voters, it is because DPI’s
interest is not dependent on the Board’s that DPI’s associa-
tional interest is “unique” and passes the first hurdle of our
intervention analysis.
2. Adequate Representation
We turn next to the question of whether DPI’s two inter-
ests are adequately represented by the Board. The burden is
on DPI to show that its interests are not adequately repre-
sented. Planned Parenthood, 942 F.3d at 797.
a. Tiered Tests for Adequacy
Our case law recognizes that some litigants are better
suited to represent the interests of third parties than others.
Accordingly, we apply three different standards for showing
inadequacy depending on the relationship between the party
and the intervenor. Put simply, the stronger the relationship
between the interests of the existing party and the interests of
the party attempting to intervene, the more proof of inade-
quacy we require before allowing intervention.
Our default rule, which applies when there is no notable
relationship between the existing party and the applicant for
intervention, is a lenient one: the applicant for intervention
No. 22-3034 7
need only show “that representation of his interest [by the ex-
isting party] ‘may be’ inadequate.” Planned Parenthood, 942
F.3d at 799 (emphasis added). We apply an intermediate
standard if “the prospective intervenor and the named party
have ‘the same goal.’” Id. (citations omitted). This is a higher
bar, under which the applicant can only show inadequate rep-
resentation by pointing to “some conflict” between itself and
the existing party. Id. (citations omitted). And finally, our
strictest test applies “when the representative party ‘is a gov-
ernmental body charged by law with protecting the interests
of the proposed intervenors[.]’” Id. In those cases, because the
existing party is legally required to represent the interests of
the would-be intervenor, we presume it is an “adequate rep-
resentative ‘unless there is a showing of gross negligence or
bad faith.’” Id. (citations omitted).
On appeal, it is uncontested that the Board (though a gov-
ernmental body) is not “legally required to represent the in-
terests of” DPI. This rules out our third and strictest adequacy
test. The parties instead debate whether DPI and the Board
share “the same goal,” warranting application of the interme-
diate standard, or if instead the default rule applies.
b. When Do Two Parties Share “The Same Goal”?
For the potential intervenor and the named party to have
“the same goal,” it is not enough that they seek the same out-
come in the case. After all, “a prospective intervenor must in-
tervene on one side of the ‘v.’ or the other and will have the
same general goal as the party on that side. If that’s all it takes
to defeat intervention, then intervention as of right will almost
always fail.” Driftless, 969 F.3d 742, 748 (7th Cir. 2020). And so
we “require[] a more discriminating comparison of the absen-
tee’s interests and the interests of existing parties.” Id.8 No. 22-3034
When we compare the interests of a would-be intervenor
and an existing party, we find that they have “the same goal”
only where the interests are genuinely “identical.” Otherwise,
we apply our lenient default rule. 3 The analysis in Driftless is
instructive. In that case, two environmental groups sued the
Wisconsin Public Service Commission, which regulated pub-
lic utilities in the state. Id. at 744. They sought to invalidate the
permits granted to three private companies to develop land.
Id. The permit-holding corporations moved to intervene as
defendants, seeking to protect their own financial interests in
the validity of the permits. Id. We found that the companies’
interests and “[t]he Commission’s interests and objectives
overlap in certain respects but are importantly different. The
Commission is a regulatory body, and its obligations are to
the general public, not to the transmission companies or their
investors.” Id. at 748. Furthermore, we noted that “the Com-
mission regulates the transmission companies, it does not ad-
vocate for them or represent their interests.” Id. (emphasis in
original). With these two key differences, the Commission
3 This broad application of the lenient default rule is supported else-
where in our caselaw. See WEAC, 705 F.3d 640, 659 (applying the interme-
diate presumption where the goals were “exactly the same”); Driftless, 969
F.3d at 747 (the intermediate standard applies only where interests are
“identical”); Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs,
101 F.3d 503, 508 (7th Cir. 1996) (requiring “identical” interests before pre-
suming adequate representation, and then applying the intermediate rule
because the existing party’s interests entirely subsumed the would-be inter-
venor’s interests). We note, however, that the Supreme Court in Berger v.
North Carolina State Conference of the NAACP, called into question whether
any presumption of adequate representation is appropriate. 142 S. Ct.
2191, 2204 (2022). That is an issue for another day, as we apply the “mini-
mal” default standard here, applying no presumption of adequacy at all.
Id.No. 22-3034 9
and the private companies did not have “identical” interests.
They did not share “the same goal.” And so we applied our
lenient default standard. Id.c. DPI and the Board Do Not Share “The Same Goal”
The “discriminating comparison” of DPI’s two interests to
the interests of the Board shows that they do not “share the
same goal” for Rule 24 purposes. We begin with DPI’s interest
as an organization: should 10 ILCS § 5/19-8(c) be enjoined,
DPI would have to reallocate resources to properly educate
voters on a change in law. Importantly, this interest does not
overlap with the Board’s interests. Nothing in the record or in
the briefing suggests that the Board is interested in DPI’s fi-
nancial expenditures, the execution of DPI’s mission, or the
elements of DPI’s work that will suffer if resources are di-
verted elsewhere. So while DPI and the Board each want the
law upheld, the stakes for each of them are different.
Similarly, DPI’s associational interest in representing its
members is not identical to or completely included within the
Board’s interests. Just as in Driftless, the Board is a “regulatory
body, and its obligations are to the general public, not to” DPI
or its members alone. These responsibilities mean it has a cer-
tain amount of authority over DPI—not that it represents
DPI’s interests. So while the Board’s “interests and objectives
overlap in certain respects” with DPI’s, in particular in their
goal of having votes counted for fourteen days after Election
Day as the district court noted, their interests are also
10 No. 22-3034
“importantly different.” Driftless, 969 F.3d at 748. This ulti-
mately leads us to the application of the default rule. 4
d. Applying the Default Rule
Under the default rule, “the applicant [must] show[] that
representation of his interest ‘may be’ inadequate,” before he
is granted intervention as of right. Planned Parenthood, 942
F.3d at 799 (quoting Trbovich v. United Mine Workers of Am.,
404 U.S. 528, 538 n.10 (1972)). This burden is “minimal,” Ligas
ex rel. Foster v. Maram, 478 F.3d 771, 774 (7th Cir. 2007), but it
is not nonexistent. The lenient default standard is satisfied
when the named party fails to make an argument before the
trial court that would further the intervenor’s interests. See
Berger v. N. Carolina State Conf. of the NAACP, 142 S. Ct. 2191,
2205 (2022) (finding that representation was inadequate be-
cause of the existing party’s failure to offer evidence in re-
sponse to a motion for preliminary injunction and refusal to
seek a stay of that injunction, both adverse to the litigation
strategy sought by the would-be intervenors); City of Chicago
v. Fed. Emergency Mgmt. Agency (“FEMA”), 660 F.3d 980, 985
(7th Cir. 2011); Reich, 64 F.3d at 323; Trbovich, 404 U.S. at 538–
39 (noting risk of inadequate representation of a would-be in-
tervenor where the interests of the existing party “may not al-
ways dictate precisely the same approach to the conduct of
the litigation”). Similarly, when the existing party declines to
appeal a ruling that the intervenor wants to appeal, the lenient
4 The district court applied the intermediate rule because “[b]oth DPI
and the State Board seek … to have timely-cast ballots counted for up to
14 days following Election Day.” This is simply saying that they each want
the law upheld. This kind of general similarity is insufficient to warrant
application of the intermediate rule. Driftless, 969 F.3d at 748.
No. 22-3034 11
default rule is satisfied. See Flying J, Inc. v. Van Hollen, 578 F.3d
569, 572 (7th Cir. 2009). And in FEMA, 660 F.3d at 985, we sug-
gested—although we did not decide—that proposing a poten-
tial conflict of interest in future settlement negotiations was
enough to make a showing of inadequacy under the default
rule.
DPI’s briefing points to nothing to suggest that the Board’s
representation “may be” inadequate. 5 DPI does not point to
any arguments that it would make that the Board has not al-
ready made.6 See FEMA, 660 F.3d at 985; Flying J., 578 F.3d at
572. And though DPI cites many out-of-circuit cases for the
proposition that even hypothetical conflicts are enough under
the default standard, DPI has not proposed even a possible
conflict between itself and the Board. It is hard to imagine
how we could hold that there “may be” a conflict if DPI itself
cannot point to one.
DPI’s sole argument for inadequate representation is that
its interests diverge with the Board’s. But the comparison of
interests determines which of the three adequacy tests ap-
plies. This comparison alone cannot also make the showing
5 DPI contends that Plaintiffs waived any argument that DPI did not
meet the burden under the default rule by failing to develop the argument
in their response brief. The record shows otherwise—Plaintiffs specifically
addressed this argument. And at any rate, our review is de novo, and the
burden is on DPI to make the minimal showing required under the default
standard to show inadequacy and warrant intervention as of right.
6 At oral argument, DPI pointed for the first time to one potential dif-
ference between its briefing below and the Board’s. As laid out above, that
might be enough to meet the lenient default standard. But by failing to
raise this in its briefing, DPI has waived it on appeal. Wonsey v. City of
Chicago, 940 F.3d 394, 399 (7th Cir. 2019).
12 No. 22-3034
required under the default rule to prove inadequacy. If that
were the case, then the default rule would simply be that in-
tervention as of right is automatic. That has never been our
law.
Without any showing of conflict—potential or other-
wise—DPI has failed to carry its burden and is not entitled to
intervention as of right.
B. Permissive Intervention
We turn finally to the issue of permissive intervention.
Rule 24(b)(1)(B) gives the district court the power to allow an-
yone to intervene who “has a claim or defense that shares
with the main action a common question of law or fact.”
Whether to allow permissive intervention is a highly discre-
tionary decision. “[U]nlike the more mechanical elements of
intervention as of right, it leaves the district court with ample
authority to manage the litigation before it.” Planned
Parenthood, 942 F.3d at 803. Because the only required consid-
erations by the district court are undue delay and prejudice to
the rights of the original parties, “reversal of a district court's
denial of permissive intervention is a very rare bird indeed[.]”
Id. (cleaned up). We review for abuse of discretion. Id.
There are many sound reasons to deny a motion for per-
missive intervention. We have noted in the past that adding
parties is not costless, and time is not the only payment:
Increasing the number of parties to a suit can make the
suit unwieldy. … An intervenor acquires the rights of
a party. He can continue the litigation even if the party
on whose side he intervened is eager to settle. This
blocking right is appropriate if that party cannot be
No. 22-3034 13
considered an adequate representative of the interve-
nor’s interests, but not otherwise.
Solid Waste, 101 F.3d at 508.
Here, the district court denied permissive intervention for
exactly those reasons—because it would use up the court’s
time and resources; because this is an election-law case that
needs to be streamlined and decided quickly; and because
DPI’s legal interests and arguments are closely aligned with
those of the Board, meaning DPI’s addition as a party would
add little substance.
DPI pushes back on this concern about court time and re-
sources, insisting that “by this standard, the court would
never grant permissive intervention,” because an additional
party will always require some extra work. That misses the
point—if court resources were the only factor, a district court
could not use that to deny every motion for permissive inter-
vention. But that is not the case here. The district court
weighed the cost of diverting its resources against the mini-
mal value DPI offered as a party—explaining that DPI’s argu-
ments varied very little from those made by the Board. That
kind of weighing is squarely within the discretion of the dis-
trict court and we find no abuse in its denial of permissive
intervention.
III. Conclusion
The district court’s conclusion that intervention as of right
was not warranted was correct, as DPI made no showing that
the Board’s representation of its interests “may be” inade-
quate. And the district court’s reliance on reasonable factors
to deny the motion for permissive intervention was well
within its discretion. That does not preclude DPI from
14 No. 22-3034
proceeding as amicus curiae, as the district court suggested,
or from filing another motion, should a conflict arise. But until
such a showing as to inadequate representation can be made,
the judgment of the district court is
AFFIRMED.
No. 22-3034 15
EASTERBROOK, Circuit Judge, concurring. My colleagues ac-
curately apply this circuit’s norms for evaluating attempts to
intervene as of right, so I join the court’s opinion. But I doubt
that this circuit’s standards are appropriate, so I add a few
additional words.
The governing rule is Fed. R. Civ. P. 24(a)(2), which says
that a district court must allow someone to intervene when
that person
claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action
may as a practical matter impair or impede the movant’s ability
to protect its interest, unless existing parties adequately represent
that interest.
Notice the difference between this language and the criteria
that appear throughout the court’s opinion. Rule 24 does not
mention tiers of justification or whether any given interest is
unique. This court has invented those additional standards, a
process to which my colleagues advert at page 5 n.2.
If the need to search for unique interests, or the multiple
tiers of justification, came from the Supreme Court, we would
be obliged to conform. As far as I can see, however, the Jus-
tices have not told us to use the approach that now prevails in
this circuit. It can’t be traced to the text of Rule 24 or to the
Committee Notes on that text. Nor does it have the support of
scholarly sources. It is homegrown and lacks any apparent
provenance.
Courts should not add layers of complexity to the Federal
Rules. Legal texts sometimes set out complex rules, but to in-
crease the complexity of a simple rule is unwarranted. Com-
plexity adds to delay and expense, neither of which promotes
justice.
16 No. 22-3034
Under the text of Rule 24(a)(2), the Democratic Party is en-
titled to intervene unless existing parties—here the State
Board of Elections and its Executive Director—adequately
represent its interest. The Rule does not ask whether the
Board and the Party have the same interest, a blind alley into
which some of this court’s decisions deflect attention. The
Board’s interest is in defending and enforcing state law, while
the Party’s interest lies in using that law for the benefit of its
candidates and members. But if the Board vigorously defends
the statutes, that defense protects the Party’s interest as well.
By the Party’s lights, any private person with a concrete
interest at stake can intervene in every suit against a public
official, because the official’s interest inevitably diverges from
the private interest. Intervenors could number in the dozens,
making discovery and settlement difficult if not impossible.
Delay and expense would be sure to rise. Far better to apply
Rule 24 as written and ask whether the original defendants
“adequately represent” the putative intervenor’s interests. If
the answer is yes, then people potentially affected by the ju-
dicial decision can explain their circumstances (unique or not)
and present their own arguments in briefs as amici curiae, al-
lowing them to be heard without complicating management
of the litigation.
Public officials’ defense of a statute at the start of a suit
does not prevent them from changing course. Cameron v.
EMW Women’s Surgical Center, P.S.C., 142 S. Ct. 1002 (2022),
holds that intervention becomes proper if the defendants
drop or impair their support of the law. But the Democratic
Party does not contend that the two public officials named as
defendants have done that or are likely to do so. Whatever
ambiguity lurks in the word “adequately”—what happens,
No. 22-3034 17
for example, if the defendants concede the plaintiffs’ main
contentions and offer only weak fallback arguments?—need
not concern us. Everyone agrees that the public officials’ de-
fense in this suit is vigorous rather than a façade. It follows
that the Party’s appropriate role is as amicus curiae.