Pavek v. Simon

Madeline Pavek, Ethan Sykes, DSCC, and DCCC, Plaintiffs, v. Steven Simon, in his official capacity as the Minnesota Secretary of State, Defendant.

Case No. 19-cv-3000 (SRN/DTS)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

July 12, 2020

ORDER GRANTING PERMISSIVE INTERVENTION

Alexi Machek Velez, Jyoti Jasrasaria, and Marc E. Elias, Perkins Coie LLP, 700 13th Street, N.W., Suite 600, Washington, D.C., 20005-3960; Kevin J. Hamilton, Perkins Coie LLP, 1201 Third Avenue, Suite 4900, Seattle, WA 98101-3099; Katherine M. Swenson and Sybil L. Dunlop, Greene Espel PLLP, 222 South 9th Street, Suite 2200, Minneapolis, MN 55402, for Plaintiffs.

Nathan J. Hartshorn, Minnesota Attorney General's Office, 445 Minnesota Street, Suite 1800, Saint Paul, MN 55101-2134, for Defendant.

Cameron Thomas Norris, Jeffrey M. Harris, and William S. Consovoy, Consovoy McCarthy PLLC, 1600 Wilson Boulevard, Suite 700, Arlington, VA 22209; Thomas H. Boyd, Winthrop & Weinstine, PA, 225 South Sixth Street, Suite 3500, Minneapolis, MN 55402-4629, for Amicus Curiae Honest Elections Project.

Richard G. Morgan, Lewis Brisbois, 90 South 7th Street, Suite 2800, Minneapolis, MN 55402, for Movants.

SUSAN RICHARD NELSON, United States District Judge

This matter is before the Court on Donald J. Trump for President, Inc.'s, Republican National Committee's, National Republican Senatorial Committee's, National Republican Congressional Committee's, and Republican Party of Minnesota's (together, Proposed Intervenor-Defendants) Motion to Intervene as Defendants (Doc. No. 65) under Fed. R. Civ. P. 24(a) and (b). For the foregoing reasons, the Court GRANTS permissive intervention to Proposed Intervenor-Defendants under Fed. R. Civ. P. 24(b).

I. BACKGROUND

On June 15, 2020, this Court preliminarily enjoined Defendant Minnesota Secretary of State Steve Simon (Defendant or "Secretary") from enforcing Minn. Stat. § 204D.13, subd. 2, otherwise known as the "Ballot Order" statute, which requires major political party candidates in Minnesota general elections to be listed on the ballot in reverse order based on the average number of votes that their party received in the last state general election. See Pavek v. Simon, No. 19-cv-3000 (SRN/DTS) (Doc. No. 64), 2020 WL 3183249, at *1, *29-30 (D. Minn. June 15, 2020). The Court further ordered the Secretary to "adopt a procedure under which Minnesota's four current major political parties are assigned, by lot, a single statewide ballot order that governs the appearance of the parties' candidates in every partisan race in Minnesota' 2020 General Election." Id. at *30.¹ The Court presumes familiarity with the factual background and reasoning set forth in that order, and will not repeat it here.

On June 22, 2020, seven days after the Court issued its preliminary injunction, Proposed Intervenor-Defendants moved to intervene as defendants under Fed. R. Civ. P. 24(a) and (b). (See Mot. to Intervene [Doc. No. 65] at 1.) Proposed Intervenor-Defendants argue that they satisfy the criteria for intervention as a matter of right under Fed. R. Civ. P.24(a)(2) or, in the alternative, that they should be granted permissive intervention under Rule 24(b), and seek to intervene for the purpose of pursuing an interlocutory appeal of the Court's preliminary injunction order. (See Proposed Intervenor Defs.' Mem. in Supp. of Mot. to Intervene ("PID Mem.") [Doc. No. 67] at 2-3.) Plaintiffs and the Defendant Secretary oppose the motion.² (See Pls.' Mem. in Opp'n to Mot. to Intervene ("Pls.' Opp'n Mem.") [Doc. No. 79]; Def.'s Mem. in Opp'n to Mot. to Intervene ("Def.'s Opp'n Mem.") [Doc. No. 77].)

On July 8, 2020, Plaintiffs and the Defendant Secretary filed a joint motion to stay this case until the conclusion of the 2021 regular session of the Minnesota Legislature, which will occur on May 17, 2021. (See Joint Mot. to Stay [Doc. No. 85] at 1.) The parties contend that a stay is appropriate—and that the Secretary will not seek interlocutory review of the Court's preliminary injunction order—because it will conserve judicial resources by giving the Minnesota Legislature an opportunity to resolve the Ballot Order statute's constitutional problems, which may in turn moot this case. (Joint Mem. in Supp. of Mot. to Stay [Doc. No. 87] at 1-3.) Moreover, the parties assert that a stay will impose no hardship on the parties because their resources will be preserved by not continuing to litigate a matter that may be rendered moot. (Id. at 3.) Finally, the parties argue that a stay will "provide certainty for voters and election administrators and ensure the orderly and efficient administration of the 2020 General Election." (Id.)

On July 9, 2020, Proposed Intervenor-Defendants filed a protective appeal of the Court's preliminary injunction order with the Eighth Circuit (see Doc. No. 90 (Notice of Appeal) & Doc. No. 95 (Transmittal of Appeal Letter)), and filed an Emergency Motion to Stay the Court's preliminary injunction pending the results of that appeal. (See Emergency Mot. to Stay Pending Appeal ("Emerg. Stay Mot.") [Doc. No. 91].) They argue that they are likely to succeed on appeal because (1) the Plaintiffs lack standing to pursue their claims, and (2) there is a "serious question" about whether Plaintiffs' claims constitute nonjusticiable political questions. (Proposed Intervenor-Defendants' Mem. in Supp. of Emergency Mot. to Stay ("PID Stay Mem.") [Doc. No. 92] at 3.) They also contend that they will suffer irreparable harm without a stay because they will not have enough time to appeal the Court's order in time for the Minnesota 2020 General Election. (Id. at 4.) Finally, they contend that a stay will not substantially injure Plaintiffs, and that the public interest—notably, the interest in orderly elections under consistent election laws made by elected representatives—favors a stay. (Id. at 4-5.)

II. DISCUSSION

Proposed Intervenor-Defendants seek intervention as either a matter of right under Fed. R. Civ. P. 24(a), or under this Court's discretion pursuant to Fed. R. Civ. P. 24(b). (PID Mem. at 2-3.) While the Court considers this motion to be a very close call, for the reasons discussed below, the Court finds that permissive intervention under Fed. R. Civ. P. 24(b) is appropriate. As a result, the Court does not address Proposed Intervenor-Defendants' request for intervention under Fed. R. Civ. P. 24(a). See, e.g., FranconiaMinerals (US) LLC v. United States, 319 F.R.D. 261, 267 (D. Minn. 2017) (granting permissive intervention and declining to reach intervention as a matter of right).

A. Legal Standard

Pursuant to Fed. R. Civ. P. 24(b)(1)(B), a court may grant permissive intervention to anyone who files a "timely motion" to intervene and "has a claim or defense that shares with the main action a common question of law or fact." In exercising its discretion to grant permissive intervention, a court "must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." Fed. R. Civ. P. 24(b)(3). Intervention under Rule 24(b)—unlike intervention as a matter of right under Fed. R. Civ. P. 24(a)—is "marked by broad flexibility" and is "wholly discretionary." Franconia Minerals (US) LLC, 319 F.R.D. at 266 (citing S.D. ex rel. Barnett v. U.S. Dep't of Interior, 317 F.3d 783, 787 (8th Cir. 2003)).

Several "well-established criteria" must be met before a motion for permissive intervention will be granted, including "(1) whether the motion to intervene is timely; (2) whether the movant's claim shares a question of law or fact in common with the main action; and (3) whether intervention will unduly delay or prejudice adjudication of the original parties' rights." Id. at 266 (citing North Dakota v. Heydinger, No. 11-cv-3232 (SRN/SER), 2013 WL 593898, at *4 (D. Minn. Feb. 15, 2013)). Additionally, while " 'only a minor variable in the Rule 24(b) decision calculus,' the adequacy of protection afforded to the prospective intervenors by the existing defendant[] is a factor." Id. (quoting S.D. ex rel. Barnett, 317 F.3d at 787). Finally, while the Eighth Circuit has not explicitly required intervening parties under Rule 24(b)(1)(B) to establish Article III standing, "mostdistrict courts in this circuit to have considered the matter have done so." Id. (citing North Dakota v. Heydinger, 288 F.R.D. 423, 427 (D. Minn. 2012) (Rau, Mag. J.) (collecting cases), affirmed and adopted, 2013 WL 593898 (D. Minn. 2013) (Nelson, J.)). The Court addresses each consideration below.

B. Permissive Intervention Under Fed. R. Civ. P. 24(b) Is Warranted

1. Standing

The Court begins with standing. To establish Article III standing, Proposed Intervenor-Defendants must show (1) injury, (2) causation, and (3) redressability. See Nat'l Parks Conservation Ass'n v. U.S. E.P.A., 759 F.3d 969, 974 (8th Cir. 2014). First, with respect to injury, Proposed Intervenor-Defendants contend that they have the same basis for standing as the DSCC and DCCC, which the Court discussed in its preliminary injunction order. (See PID Mem. at 7); see also Pavek, 2020 WL 3183249, at *10-14. However, the Court notes that whether the Proposed Intervenor-Defendants have suffered a cognizable injury-in-fact is not as clear cut as the DSCC's and DCCC's competitive-based injury discussed by the Court in its preliminary injunction order. See Pavek, 2020 WL 3183249, at *10-14. Unlike the DSCC and DCCC, the Proposed Intervenor-Defendants (1) have not provided any affidavits attesting to a diversion of resources; and (2) have benefitted from—as opposed to having been disadvantaged by—the Ballot Order statute's ordering requirements. See id. at *17 n.16 (noting that the Republican candidate for President, Donald J. Trump, could be listed first on the ballot if Minnesota's two legal-marijuana parties do not put forth a presidential candidate). In fact, under the lottery system put in place by the Court in its preliminary injunction order, see id. at *30, ProposedInt...