In Bost v. Illinois State Board of Elections, Seventh Circuit Reiterates the Low Bar for Intervention and Further Explains the “Uniqueness” Interest for Intervention Purposes
The Democratic Party of Illinois may not intervene in a suit relating to mail-in voting, according to the U.S. Court of Appeals for the Seventh Circuit. The case, Bost v. Illinois State Board of Elections, arose when Congressman Michael Bost and two voters challenged an Illinois law that permits completed mail-in ballots to be counted as long as they are sent on or before election day and are received within two weeks after election day. ___ F.4th ____, 2023 WL 4781687, at *1 (7th Cir. July 27, 2023). Bost contended that this extended ballot-counting period violates federal law, and he sued the Illinois State Board of Elections to end the practice. The Democratic Party of Illinois (DPI) attempted to intervene in the case, concerned about the potential impact on its members’ voting rights and its mission as an organization. The federal trial court denied DPI’s motion to intervene, and the Seventh Circuit recently affirmed that ruling.
In doing so, however, the Seventh Circuit also reaffirmed its longstanding approach that political parties and actors need clear only a low bar to intervene in voting-rights litigation. A non-party has a right to intervene under Federal Rule of Civil Procedure 24 if it can prove “(1) timely application; (2) an interest relating to the subject matter of the action; (3) potential impairment, as a practical matter, of that interest by the disposition of the action; and (4) lack of adequate representation of the interest by the existing parties to the action.” Id. at *2 (quoting State v. City of Chicago, 912 F.3d 979, 984 (7th Cir. 2019)). Even a non-party that does not have a right to intervene may be permitted to do so if the non-party “‘has a claim or defense that shares with the main action a common question of law or fact,’” id. at *5 (quoting Fed. R. Civ. P. 24(b)(1)(B)), and its intervention would not cause “undue delay” or “prejudice to the rights of the original parties,” id. (citing Planned Parenthood of Wis., Inc. v. Kaul, 942 F.3d 793, 799 (7th Cir. 2019)).
The bulk of the Bost decision addresses intervention as of right, and specifically the requirement that an intervenor must have an interest not adequately represented by the existing parties. Although prior Seventh Circuit decisions characterized the proposed intervenor’s interest as one that must be “unique” to justify intervention, id. at *2 (citing Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir. 1985)), Bost makes clear that word should not be interpreted literally because the court has “never required a right that belongs only to the proposed intervenor, or even a right that belongs to the proposed intervenor and not to the existing party.” Id. (emphases in original). Clarifying the Seventh Circuit’s prior decisions, the Bost court explained that “[p]roperly understood, the ‘unique’ interest requirement demands only that an interest belong to the could-be intervenor in its own right, rather than derived from the rights of an existing party.” Id. (citing Planned Parenthood, 942 F.3d at 806); see also id. at *2 n.2. Thus, the court held that even though the State Elections Board has an “‘interest … in preserving the law for all Illinois voters, DPI Members and constituents included,’” that does not disqualify DPI from articulating a unique organizational interest. Id. at *3 (quoting district court order)).
But showing a cognizable interest was not enough to establish DPI’s right to intervene because DPI also had to show that the State Elections Board would not adequately represent DPI’s interest. The court detailed the three different standards for showing whether a would-be intervenor is adequately represented by an existing litigant:
- The “default” and “lenient” rule “applies when there is no notable relationship between the existing party and the applicant for intervention”; it requires only that the applicant “show that ‘representation of his interest [by the existing party] may be’” Id. at *3 (quoting Planned Parenthood, 942 F.3d at 799 (internal quotation marks omitted; emphasis added by Bost court).
- The “intermediate standard” applies if the applicant and existing party “‘have the same goal,’” which requires more than the applicant and existing party to seek the same outcome in the case; rather, it requires them to have “interests [that] are genuinely ‘identical.’” at *3; see also id. n.3. To meet this test, an applicant establishes inadequate representation if it points to “‘some conflict’ between itself and the existing party.” Id. at *3 (quoting Planned Parenthood, 942 F.3d at 799) (internal quotation marks omitted).
- The “strictest test” applies when the existing party is a governmental unit legally required to represent the applicant’s interests; this is presumed adequate unless the proposed intervenor makes “‘a showing of gross negligence or bad faith’” by the governmental unit. (quoting Planned Parenthood, 942 F.3d at 799) (internal quotation marks omitted).
Recognizing that DPI and the Board do not share the same goal, the court applied the default rule. As the court reasoned, the Board is a regulatory body with obligations to the general public, not to DPI, and it has no interest in DPI’s finances, its mission, or any outcome of the case on DPI’s work. The court contrasted that with DPI’s interests in ensuring that its members are able to vote and in minimizing the resources it must allocate to re-educate voters on changes in the law. Consequently, the court concluded that although their “interests and objectives overlap in certain respects,” they “are also ‘importantly different.’” Id. at *4 (quoting Driftless Area Land Conservancy v. Huebsch, 969 F.3d 742, 748 (7th Cir. 2020)). Accordingly, the court applied the default rule requiring DPI to show that the Board’s “representation of [its] interest ‘may be’ inadequate” to establish a right to intervention. Id. at *4. DPI failed to do so, however, as it “point[ed] to nothing to suggest that the Board’s representation ‘may be’ inadequate,” nor did it identify “even a possible conflict between itself and the Board.” Id.
The Seventh Circuit also upheld the trial court’s rejection of DPI’s permissive intervention, noting that a district court’s grant of permissive intervention is highly discretionary, and that reversal by the court of appeals is “a very rare bird indeed,” warranted only by abuse of discretion. Id. at *5 (quoting Planned Parenthood, 942 F.3d at 803). The district court did not abuse its discretion, the Seventh Circuit held, finding that the lower court’s grounds of seeking to preserve judicial resources, the need to move swiftly in an already time-sensitive election law case, and the “minimal value DPI offered as a party” served as “reasonable factors” to deny intervention. Id. Concluding the opinion, Judge St. Eve kept the door open for DPI to proceed as amicus curiae or file another motion if and when a conflict emerges between DPI and the Board. Id.
Judge Easterbrook, in a concurring opinion, bemoaned the complexity of the majority opinion, finding that the language from Rule 24 invokes a much simpler test without “tiers of justification” and uniqueness issues “invented” by the majority. Id. at *6 (Easterbrook, J., concurring). Noting that there is no standard from the Supreme Court obligating a need to search for uniqueness or multiple tiers of justification, Judge Easterbrook criticized the majority’s language as “homegrown” and adding unnecessary complexity of an otherwise “simple rule.” Id. (Easterbrook, J., concurring).
Given the volume of voting-rights and political litigation in Wisconsin—both the Planned Parenthood and the Driftless decisions quoted above reviewed rulings of district courts in Wisconsin—the issue of who may intervene to participate as a party in such cases will remain an important one. Bost reiterates that a proposed intervenor needs more than a desire to have their say; the intervention papers must also clearly lay out a rationale, and likely a factual basis, for why the proposed intervenor has something to add that the existing parties will not adequately address on their own.
Law clerk Klara A. Henry assisted with researching and writing this post.
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