Paher v. Nevada Secretary of State

[2] UNITED STATES DISTRICT COURT [3] DISTRICT OF NEVADA [4] * * * [5] 6 STANLEY WILLIAM PAHER, et al., Case No. 3:20-cv-00243-MMD-WGC 7 Plaintiffs, ORDER v. [8] BARBARA CEGAVSKE, in her official 9 capacity as Nevada Secretary of State, et al., [10] Defendants. [11] 12 I. SUMMARY 13 Contending with the novel coronavirus disease (“COVID-19”) pandemic, Nevada’s 14 Secretary of State Barbara Cegavske (the “Secretary”), in partnership with Nevada’s 17 15 county election officials, developed a plan to implement an all-mail election for the 16 upcoming June 9, 2020 Nevada primary in order to diminish the spread of COVID-19 (the 17 “Plan”1). Relevantly, there are currently five states in the western United States that 18 conduct elections entirely by mail: Oregon, Washington, Colorado, Utah, and Hawaii. 19 Nevada also currently allows for mail-in voting in certain mailing precincts—separate from 20 absent ballot precincts—with no reported incidents of election fraud. It is also undisputable 21 that under NRS Chapter 293, the Nevada Legislature has vested the Secretary with 22 authority to enact voting regulations and that the Secretary has pronounced the Plan to 23 safeguard the health and safety of Nevada voters (and the larger public) during 24 unprecedented times. 25 /// 26 /// 27 1The Court adopts Plaintiffs’ reference to the Plan but recognizes that Plaintiffs challenge only the expansion of voting by mail. Intervenor-Defendants have filed a 28 separate action challenging other aspects of the Plan (ECF No. 27 at 3–4) which are not at issue in this case. 2 the Secretary and Deanna Spikula—Registrar of Voters for Washoe County (“Washoe 3 Registrar”)—chiefly claiming that the Plan is not “chosen” by Nevada’s Legislature, and 4 that an all-mail election strips voter-fraud-prevention safeguards and unconstitutionally 5 violates Plaintiffs’ right to vote due to purported vote dilution. (ECF No. 1.) Upon these 6 contentions and others, Plaintiffs seek a preliminary injunction to stop the Plan (“PI 7 Motion”). 8 The Court finds that Plaintiffs have not established an injury particularized to them 9 to confer standing. However, even if they can establish standing, Plaintiffs’ claims fail on 10 the merits and the other relevant factors for preliminary injunctive relief counsel against 11 the Court enjoining Defendants from implementing the all-mail election provisions of the 12 Plan. The Court finds that Defendants’ interests in protecting the health and safety of 13 Nevada’s voters and to safeguard the voting franchise in light of the COVID-19 pandemic 14 far outweigh any burden on Plaintiffs’ right to vote, particularly when that burden is 15 premised on a speculative claim of voter fraud resulting in dilution of votes. The Court will 16 therefore deny the PI Motion.2 17 II. BACKGROUND 18 The following facts are taken from the Verified Complaint and exhibits attached 19 thereto as well as the evidence submitted concerning the PI Motion. 20 A. The Parties 21 This action stems from the decision to hold the all-mail primary (i.e., to implement 22 the Plan’s mailing provisions), which was announced to the public on March 24, 2020. 23 /// 24 /// [25] 2In addition to the PI Motion, the Court has considered Defendants’ and Intervenor26 Defendants’ oppositions (ECF Nos. 25 (Washoe Registrar), 27-1 (Defendant-Intervenors), 28 (Secretary), and Plaintiffs’ reply (ECF No. 43). The Court has also deliberated the 27 arguments the parties presented at a hearing on the PI Motion on April 29, 2020 (“Hearing”). Because Plaintiffs’ reply was unresponsive to Intervenor-Defendants’ brief, 28 the Court provided Plaintiffs an additional opportunity for Plaintiffs to respond to those arguments at the Hearing. 2 parties are described as follows. 3 Plaintiffs are all registered Nevada voters. (ECF No. 1.) Stanley resides in Reno, 4 Nevada and typically participates in in-person early voting. (Id.) Terresa Monroe-Hamilton 5 and Garry Hamilton (together, “Hamiltons”) are married, recently moved to Nevada, and 6 also reside in Reno. (Id.) The Hamiltons ordinarily vote early or in person on election day. 7 They registered to vote online the day before filing this lawsuit. (Id.) 8 The Secretary is the Chief Officer of Elections for the State of Nevada, see NRS § 9 293.124. (Id.) The Washoe Registrar is responsible for implementing the state’s election 10 laws in Washoe County. (Id.) The Secretary and Washoe Registrar are collectively 11 referenced as Defendants, where not individually referenced. 12 B. Impetus and Concerns that Led to the Plan 13 The decision to implement the Plan was made to “maintain a high level of access 14 to the ballot, while protecting the safety of voters and poll workers[—who belong to groups 15 who are at high risks for severe illness from COVID-19—].” (ECF No. 1-1.) In decreeing 16 the Plan, the Secretary wanted to “reassure voters in Nevada that their health and safety 17 while participating in voting is paramount to state and local election officials.” (Id.) 18 Pertinently, the Secretary is quoted, stating: 19 Because of the many uncertainties surrounding the COVID-19 pandemic, as well as the immediate need to begin preparations for the 2020 primary 20 election, it became necessary for me to take action regarding how the election will be conducted. [21] 22 She further states that she, along with Nevada’s 17 county election officials, “jointly” 23 determined that “the best option for the primary election is to conduct an all-mail election.” 24 (Id.) The Secretary’s announcement of the Plan emphasized that election officials are 25 focused on also maintaining the integrity of the election: “the high standard Nevada has 26 set for ensuring the security, fairness, and accuracy of elections will still be met.” (Id.) 27 /// 28 /// 2 Under the Plan, all active registered voters will be mailed an absentee ballot (mail3 in ballot) for the primary election. If a voter is registered to vote at his or her current 4 address, they need not take any further action to receive an absentee ballot. (E.g., ECF 5 No. 1-3.) If an individual is not registered or needs to update registration information (e.g., 6 name, address, and party), they are required to do so. (Id.) To accommodate same-day 7 registration requirements enacted by the 2019 Nevada Legislature, the Plan also 8 establishes at least one physical polling place in each of Nevada’s counties and in Carson 9 City. (ECF No. 1-1.) 10 The Plan otherwise maintains Nevada’s election system and safeguards. (See ECF 11 No. 21 (Decl. of Wayne Thorley, Deputy of Elections for the Secretary).) For example, 12 NRS § 293.2725(1) requires first-time voters in Nevada to present identification and proof 13 of residency before being allowed to vote, whether in person or by mail. (Id.) The 14 requirements to present identification and proof of residency for first-time voters are 15 waived pursuant to NRS § 293.2725(2)(b) if election officials are able to match the voter’s 16 driver’s license number, ID card number or social security number with personal identifier 17 on file with the Nevada Department of Motor Vehicle (“DMV”) or Social Security 18 Administration (“SSA”). (Id.) 19 When voter registration applicants register (1) by mail, (2) through the DMV by 20 appearing in person or using the DMV's on-line system, or (3) via the Secretary of State's 21 on-line system, the overwhelming majority of those applicants are positively matched to 22 the personal identifiers on file with the DMV or the SSA. (Id.) The match is made through 23 automated systems, which the Secretary finds to be highly reliable. (Id.) Voters who are 24 positively matched to personal identifiers on file with the DMV or SSA are not required to 25 present identification and proof of residency before voting, even if they are voting for the 26 first time in Nevada. (Id.) They can simply vote in person or by mail without submitting to 27 /// 28 /// 2 identifiers on record with the DMV or SSA must present identification and proof of 3 residency before voting (referred to as “ID required voters”). (Id.) These ID required voters 4 constitute less than 1% of all registered voters. (Id.) They have different ballot return 5 envelopes than other voters with an envelope flap indicating that the voter must return a 6 copy of the voter’s identification and proof of residency, without which their votes will not 7 count. 8 Penalties against fraudulent votes are provided for under, inter alia, NRS §§ 9 293.313, 293.730(2), (3), and 293.840. 10 D. Nevada’s Election System Already Permits Mail-in Ballots in Mailing Precincts [11] 12 Nevada’s governing statutes provide for mailing precincts—specifically NRS §§ 13 293.343 through 293.355. Through these provisions, the Nevada Legislature has given 14 the Secretary and county clerks authority to mail ballots to registered voters rather than 15 requiring voters to request those ballots through the absent ballot process. 16 NRS § 293.343 provides that “[w]henever the county clerk has designated a 17 precinct as a mailing precinct, registered voters residing in that precinct may vote at any 18 election regulated by this chapter in the manner provided in NRS [§§] 293.345 to 293.355, 19 inclusive.” NRS § 293.343(2). Further, NRS § 293.213 gives the county clerk unilateral 20 authority to designate a precinct as a mailing precinct if one of two conditions is met: (1) if 21 fewer than 20 registered voters reside in that precinct, or (2) if fewer than 200 ballots were 22 cast in the last general election. NRS § 293.213(1), (3). A county clerk may establish a 23 mailing precinct that does not meet the requirements of NRS § 293.213(1)–(3) “if the 24 county clerk obtains prior approval from the Secretary of State.” NRS § 293.213(4). 25 Mailing precincts, as opposed to absent ballot precincts, have been used in 26 Nevada—albeit on a small scale—for many years. (ECF No. 21 at 3.) In recent Nevada [27] 3The Deputy of Elections for the Nevada Secretary of State attests that the lack of 28 a match is “almost always because of a typographical or printing error in [the] application to register to vote.” (ECF No. 21 at 2.) 2 precincts, providing a reasonable sample of ballots cast without incidents of election fraud. 3 (Id.) The number of ballots that voters recently cast in mailing precincts are: 2018 General 4 election (3,879); 2018 Primary election (2,273); 2016 General election (6,069); 2016 5 Primary election (362); 2014 General election (4,288). (Id.) 6 E. Lawsuit 7 Plaintiffs filed this lawsuit on April 21, 2020. The Verified Complaint asserts five 8 claims for relief, detailed infra, and requests declaratory and injunctive relief to prevent the 9 Secretary and county administrators from implementing the Plan. (ECF No. 1 at 8–13.) 10 Plaintiffs particularly challenge the Plan’s expansion of mail-in voting or in their 11 characterization, “[t]he Plan would require the State to forego almost all in-person voting 12 and instead conduct the Primary by mailed absent ballots.” (ECF No. 1 at 9.) Plaintiffs 13 contend that the largely all-mail primary circumvents various statutory safeguards 14 designed to protect against voter fraud, and that their votes will as a result be diluted by 15 illegal votes. (E.g., id., at 2, 9, 12.) 16 Along with the Verified Complaint, Plaintiffs filed the PI Motion, a motion to expedite 17 briefing and hearing on the PI Motion, and a motion to consolidate the requested hearing 18 on the PI Motion with hearing on the merits of Plaintiffs’ Verified Complaint (“Consolidation 19 Motion”). (ECF Nos. 1, 2, 3,4.) The Court granted the motion to expedite in part (ECF No. 20 14) and later granted the Consolidation Motion under Fed. R. Civ. P. 65(a)(2) (ECF No. 21 36)4. The Court further granted intervention by the following parties: Nevada State 22 Democratic Party (“NSDP”), DNC Services Corporation/Democratic National Committee 23 (“DNC”), DCCC, Priorities USA, and John Solomon (collectively, “Intervenor-Defendants”). 24 (ECF No. 39.) 25 /// 26 /// 27 4However, at the Hearing the Court determined that a resolution on the merits of the case should be deferred given the Secretary’s position as to her right to assert 28 Eleventh Amendment immunity. Such a deferral would not affect the parties’ ability to seek interlocutory appeal. 2 Federal Rule of Civil Procedure 65 governs preliminary injunctions. “‘An injunction 3 is a matter of equitable discretion’ and is ‘an extraordinary remedy that may only be 4 awarded upon a clear showing that the plaintiff is entitled to such relief.’” Earth Island Inst. 5 v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (quoting Winter v. Nat. Res. Def. Council, [6] 555 U.S. 7, 22, 32 (2008)). This relief is “never awarded as of right.” Alliance for the Wild 7 Rockies v. Cottrell (“Alliance”), 623 F.3d 1127, 1131 (9th Cir. 2011). To qualify for a 8 preliminary injunction, a plaintiff must satisfy four requirements: (1) a likelihood of success 9 on the merits; (2) a likelihood of irreparable harm; (3) that the balance of equities favors 10 the plaintiff; and (4) that the injunction is in the public interest. See Winter, 555 U.S. at 20 . 11 A plaintiff may also satisfy the first and third prongs by showing serious questions going 12 to the merits of the case and that a balancing of hardships tips sharply in plaintiff’s favor. 13 Alliance, 632 F.3d at 1135 (holding that the Ninth Circuit's “sliding scale” approach 14 continues to be valid following the Winter decision). 15 On the merits-success prong, “the burdens at the preliminary injunction stage track 16 the burdens at trial.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 17 U.S. 418, 429 (2006); see also id. at 428 (citing Ashcroft v. ACLU, 542 U.S. 656 , 666 18 (2004). 19 IV. DISCUSSION 20 Plaintiffs’ claims are that the Plan: (1) violates the right to vote by removing 21 safeguards against fraudulent votes that dilute votes, which they claim is a severe burden; 22 (2) violates the right to vote for legislative representatives to establish the manner of 23 elections by substituting a scheme that replaces the Nevada Legislature’s plan; (3) violates 24 the right to vote under the Purcell5 principle; (4) violates Plaintiffs’ right to have, and to 25 vote in, federal elections where the manner of election is chosen by the state’s legislature; 26 and (5) violates the right to a republican form of government under the United States [27] 28 5Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam). 2 issues about Plaintiffs’ claims that the Court will address before turning to the merits.6 3 A. Standing 4 Both Defendants and Intervenor-Defendants argue that Plaintiffs lack standing to 5 assert their claims. (ECF No. 25 at 11–16; ECF No. 28 at 8–10; ECF No. 27-1 at 9–11.) 6 The Court agrees. 7 “Article III of the Constitution limits federal-court jurisdiction to ‘Cases’ and 8 ‘Controversies.’” Massachusetts v. EPA, 549 U.S. 497, 516 (2007). “To satisfy Article III’s 9 standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) 10 concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) 11 the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, 12 as opposed to merely speculative, that the injury will be redressed by a favorable 13 decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167 , 18014 81 (2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555 , 560–61 (1992)). The party 15 invoking federal jurisdiction bears the burden of establishing these elements. FW/PBS, 16 493 U.S. at 231. Moreover, the party invoking standing also must show that it has standing 17 for each type of relief sought. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). 18 Among other things, the Secretary argues that Plaintiffs lack standing because their 19 alleged injury is speculative and at best Plaintiffs hint at a possible injury only in the first 20 claim for voter dilution. (ECF No. 28 at 8–10.) Washoe Registrar similarly argues that 21 Plaintiffs’ injury is speculative, unsupported and not particularized. (ECF No. 25 at 11–16.) 22 Intervenor-Defendants make the same arguments, but more fully argue why Plaintiffs have 23 not alleged an injury-in-fact. (ECF No. 27-1 at 9–11.) Intervenor-Defendants contend, inter 24 alia, that Plaintiffs do not allege an injury-in-fact because Plaintiffs’ “purported injury is no 25 /// [26] 6Intervenor-Defendants argue that this Court is barred by the Eleventh Amendment 27 from deciding this action—which they contend amounts to an action to enjoin state officials for alleged violations of state law. (ECF No. 27-1 at 8–9.) Neither the Secretary nor the 28 Washoe Registrar, who are the directly concerned parties, substantively argue the issue in briefing or at the Hearing. The Court will therefore not consider the issue here. 2 by the candidates elected through Nevada’s elections, for that matter).” (Id. at 10.) In 3 briefing and at the Hearing, Plaintiffs counter that they have standing, in gist arguing that 4 mail-in ballots are unlawful under state law, resulting in vote dilution, and that vote dilution 5 from voter fraud results in disenfranchisement, and “disenfranchisement is a severe 6 burden that is personal to the person disenfranchised.” (E.g., ECF No. 43 at 4, 7.) 7 Plaintiffs’ argument is difficult to track and fails to even minimally meet the first 8 standing prong. The theory of Plaintiffs’ case, and which is the only alleged injury driving 9 all of their claims, is that the Plan will lead to an increase in illegal votes thereby harming 10 them as rightful voters by diluting their vote. (See generally ECF No. 1.) But Plaintiffs’ 11 purported injury of having their votes diluted due to ostensible election fraud may be 12 conceivably raised by any Nevada voter. Such claimed injury therefore does not satisfy 13 the requirement that Plaintiffs must state a concrete and particularized injury. See, e.g., 14 Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (citation omitted) (providing, inter 15 alia, that an injury must be “concrete and particularized”); Lujan v. Defs. of Wildlife, 504 16 U.S. 555 , 573–74 (1992) (explaining that U.S. Supreme Court’s case law has “consistently 17 held that a plaintiff raising only a generally available grievance about government— 18 claiming only harm to his and every citizen’s interest in proper application of the 19 Constitution and laws, and seeking relief that no more directly and tangibly benefits him 20 than it does the public at large—does not state an Article III case or controversy”). This is 21 not a pioneering finding. Other courts have similarly found the absence of an injury-in-fact 22 based on claimed vote dilution. See, e.g., Am. Civil Rights Union v. Martinez-Rivera, 166 23 F. Supp. 3d 779, 789 (W.D. Tex. 2015) (“[T]he risk of vote dilution[ is] speculative and, as 24 such, [is] more akin to a generalized grievance about the government than an injury in 25 fact.”); cf. United States v. Florida, No. 4:12cv285-RH/CAS, 2012 WL 13034013 , at *1 26 (N.D. Fla. Nov. 6, 2012) (rejecting a motion to intervene under Rule 24 based on the same 27 theory of vote dilution because the “asserted interests are the same . . . as for every other 28 registered voter in the state” and therefore constitute “[g]eneralized interests”). 2 was authorized to implement the Plan under NRS § 293.213(4) and therefore Plaintiffs fail 3 to show a “causal connection” between the alleged injury of vote dilution and the purported 4 unlawful conduct they allege the Secretary has engaged in, see Lujan, 504 U.S. at 560 . 5 (ECF No. 28 at 4, 7, 9.) The Court ultimately agrees with this contention in light of its 6 findings below.7 7 Even if the Court had concluded that Plaintiffs have standing here, Plaintiffs’ claims 8 also fail on the merits.8 9 B. The Merits of Plaintiffs’ Claims 10 In the PI Motion, Plaintiffs focus chiefly on likelihood of success on the merits, 11 arguing that they are likely to succeed on each of their claims. (See ECF No. 2 at 7–20.) 12 In considering the merits of Plaintiffs’ claims, the Court finds that Plaintiffs’ second, fourth, 13 and fifth claims are in many ways materially intertwined, as discussed infra. The Court 14 ultimately concludes that Plaintiffs fail to establish the merits of each claim. While the Court 15 therefore need not further consider the Winter factors, the Court also finds that the balance 16 of equities favors Defendants and Intervenor-Defendants and that injunction would not be 17 in the public’s interest.9 18 /// 19 /// 20 7Even if the Court had concluded infra that there was a violation of Nevada law in the implementation of the all-mail provisions of the Plan, such as the Plan being untimely 21 or otherwise “inconsistent” with the intent of Nevada’s Legislature—which Plaintiffs argue, see infra, the Court finds that Plaintiffs have not established a nexus between such alleged 22 violations and the alleged injury of vote dilution. 23 8The Court does not consider Intervenor-Defendants’ argument that Plaintiffs do not state a cognizable federal cause of action because Plaintiffs have no private right of 24 action to enforce Nevada’s election laws. (ECF No. 27-1 at 11–12.) 25 9If the Court had concluded that Plaintiffs establish that they are likely to succeed on the merits, the Court would also necessarily find irreparable harm. See Sanchez, et al. 26 v. Cegavske, et al., 214 F. Supp. 3d 961, 976 (D. Nev. 2016) (citing Cardona v. Oakland Unified Sch. Dist., California, 785 F. Supp. 837, 840 (N.D. Cal. 1992) (“Abridgement or 27 dilution of a right so fundamental as the right to vote constitutes irreparable injury.”) & Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“It is well established that the 28 deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’”)). 2 Plaintiffs’ predominant claim, on which they expend most of their bandwidth, is that 3 the Plan violates the fundamental right to vote by removing safeguards against fraudulent 4 votes—that they claim are attendant to in-person and request-only-absentee-ballot 5 voting—that dilute votes. (ECF No. 2 at 7–15; ECF No. 43 at 3.) The Court addresses 6 some threshold issues before turning to the merits (i.e., whether Plaintiffs have established 7 a constitutional violation). 8 As an initial matter, the Court must determine the applicable test/analytical 9 framework for considering this argument. Plaintiffs specifically present the Anderson10 Burdick balancing test/line of cases and the Reynolds-Bush line of cases as the possible 11 frameworks for this case (ECF No. 2 at 8–9). Compare Anderson v. Celebrezze, 460 U.S. 12 780, 788–89 (1983) & Burdick v. Takushi, 504 U.S. 428, 434 (1992) with Reynolds v. Sims, [13] 377 U.S. 533 (1964) & Bush v. Gore, 531 U.S. 98 (2000) (per curiam). Plaintiffs argue that 14 the latter should govern the case because they claim that voter disenfranchisement in the 15 form of vote dilution is at issue here and that the Anderson-Burdick balancing test is not 16 suitable for such claims. (See id. at 9.) They additionally posit that the Anderson-Burdick 17 line of cases should not apply because the Plan being challenged is not a state-enacted 18 election law, to which they appear to concede the Anderson-Burdick balancing test would 19 typically apply. (See id.) Defendants and Intervenor-Defendants argue that the Court 20 should, like other courts, apply the Anderson-Burdick balancing test where it is alleged 21 that an election law or policy violates the right to vote. (ECF No. 28 at 7; ECF No. 27-1 at 22 14–15; ECF No. 25 at 18.) 23 The Court will apply the Anderson-Burdick balancing test. The Court finds Plaintiffs’ 24 reasons for the Reynolds-Bush framework and for rejecting the Anderson-Burdick 25 balancing test, which Plaintiffs admit is ordinarily applicable to these types of cases, 26 unpersuasive. For one, as will be explained infra, the Court disagrees with Plaintiffs that 27 the Plan does not constitute state-enacted election law. Further, Plaintiffs provide no case 28 where a Reynolds-Bush framework was applied within a context similar to the instant one. 2 disenfranchisement due to purported vote dilution as a result of voter fraud; their claim of 3 voter fraud is without any factual basis.10 Regarding the latter, Plaintiffs notably moved to 4 consolidate the hearing on the PI Motion with a motion on the merits of the Verified 5 Complaint, contending that the merits of this case turns on “purely legal issues.” (E.g., 6 ECF No. 4 at 1.) Moreover, at least one case more recent than Reynolds, Anderson, 7 Burdick, and Bush—Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 190 (2008)— 8 applies the Anderson-Burdick balancing test.11 9 Plaintiffs next argue that if the Court applies the Anderson-Burdick balancing test, 10 the Court should apply strict scrutiny in evaluating the burdens caused by the Plan. (ECF 11 No. 2 at 8.)12 But the Supreme Court has not been so exacting. In Crawford, the Court 12 reiterated that it has not “identif[ied] any litmus test for measuring the severity of a burden 13 that a state law imposes on a political party, an individual voter, or a discrete class of 14 voters. However slight that burden may appear, as Harper [v. Virginia Bd. Of Elections, [15] 383 U.S. 663 (1966)] demonstrates, it must be justified by relevant and legitimate state 16 interests ‘sufficiently weighty to justify the limitation.’” Id. at 190 (quoting Norman v. Reed, [17] 502 U.S. 279 , 288–289 (1992)); see also Timmons v. Twin Cities Area New 18 Party, 520 U.S. 351, 359 (1997) (“No bright line separates permissible election-related 19 regulation from unconstitutional infringements.”). But, “[w]hen a state election law 20 /// [21] 10Plaintiffs, for the first time in their reply, attempt to argue voter fraud through the 22 presentation of evidence in the form of newspaper articles. (See ECF No. 43 at 4–5.) 23 11The PI Motion makes no mention of Crawford and appears to suggest that Anderson and Burdick should not apply here also because they predate Bush. (See ECF 24 No. 2 at 9 n.8.) 25 12Notably, Plaintiffs concede that Bush did not discuss, much less explicate, any particular level of scrutiny. (See ECF No. 2 at 10 (“Building on Reynolds, Bush didn’t 26 discuss the scrutiny level, but held that the Florida Supreme Court could not by its orders and interpretations of state law dilute voters’ fundamental right to vote, 551 U.S. at 107– 27 11, which was either a per-se ban of vote dilution or at least an exercise of the strict scrutiny now required in equal-protection challenges involving fundamental rights with an 28 analysis and outcome so readily apparent that it required no detailing.”) (emphasis added). 2 Fourteenth Amendment rights of voters, ‘the State's important regulatory interests are 3 generally sufficient to justify’ the restrictions.” Burdick, 504 U.S. at 434 (quoting Anderson, 4 460 U.S. at 788; see Crawford, 553 U.S. at 189–90 (internal quotation and citations 5 omitted) (“[E]venhanded restrictions that protect the integrity and reliability of the electoral 6 process itself are not invidious.”). 7 As the Supreme Court did in Crawford, this Court begins its analysis of the 8 constitutionality of the Plan’s all-mail provision by focusing on the state’s interests. See id. 9 at 191. Here, the Secretary, acting on behalf of the State of Nevada, has identified at least 10 two interests that justify the burdens that the Plan imposes on voters and potential voters 11 like Plaintiffs. The Secretary expressly implemented the Plan to protect the health and 12 safety of Nevada’s voters and to safeguard the voting franchise. (E.g., ECF No. 1-1.) 13 These are indisputably compelling and longstanding interests. For example, the states’ 14 police powers over matters of public health and safety and to act over the general welfare 15 of their inhabitants is entrenched in the rights reserved to the state under the Tenth 16 Amendment to the United States Constitution. See also Reynolds, 377 U.S at 554 17 (“Undeniably the Constitution of the United States protects the right of all qualified citizens 18 to vote, in state as well as in federal elections.”). 19 On the other hand, and as the Secretary puts it (ECF No. 28 at 8), Plaintiffs cannot 20 demonstrate a burden upon their voting rights, only an imposition upon their preference 21 for in-person voting—as opposed to mail-in voting, where ballots are mailed to voters. The 22 same can be said regarding Plaintiffs’ emphasis on request-only-absentee-ballots, where 23 ballots are sent to voters only if they request one. (ECF No. 2 at 12–13, 17, 21.) Cf. 24 McDonald v. Bd. of Election Commissioners, 394 U.S. 802, 807 (1969) (providing that the 25 right to absentee voting (i.e., a preference where other voting options exists) is not a 26 fundamental right because it does not in fact put the right to vote at stake). Further, 27 Plaintiffs’ overarching theory that having widespread mail-in votes makes the Nevada 28 /// 2 maintains the material safeguards to preserve election integrity. (See ECF Nos. 1-1, 21.) 3 Moreover, although Plaintiffs cloak their preference in a claim of voter 4 disenfranchisement (e.g., ECF No. 2 at 8, 9, 17; ECF No. 43 at 7), Defendants may equally 5 claim that voters will be disenfranchised. For example, if the Plan is not implemented 6 voters worried about risks to their health or unsure about how to obtain an absentee ballot 7 may very well be discouraged from exercising the right to vote all together. Additionally, 8 as Defendants also point out, under the Plan, Plaintiffs may—if they choose to exercise 9 their preference for in-person voting—vote in person on election day at a county wide 10 polling center regardless of their precinct per NRS §§ 293.3072–.3075. (Id. at 6–7; ECF 11 No. 25 at 13.) The Court therefore concludes that Nevada’s interests, reflected by the 12 Secretary in implementing the Plan, far outweigh the burdens placed on Plaintiffs’ right to 13 vote. Thus, Plaintiffs’ first claim fails on the merits. 14 2. Plaintiffs’ Second and Fourth Claims 15 For efficiency, the Court discusses Plaintiffs’ second and fourth claims in a single 16 section because the two overlap. As noted above, Plaintiffs’ second argument is that the 17 Plan violates the right to vote for legislative representatives to establish the manner of 18 elections by substituting a scheme that replaces the Nevada Legislature’s plan. (ECF No. 19 2 at 15–16.) This argument is expressly premised on Plaintiffs’ fourth contention. (See id. 20 at 16; see also ECF No. 43 at 7–8 (explaining that the violation in the second claim results 21 due to the Plan allegedly disregarding the legislature’s chosen manner of elections—which 22 is captured by the fourth claim).) The latter is that the Plan violates Plaintiffs’ right to have, 23 and to vote in, federal elections where the manner of election is chosen by the state’s 24 legislature under Article I, section 4, clause 1 of the United States Constitution.13 (Id. at 3– 25 /// [26] 13Article I, section 4, clause 1 provides: [27] The Times, Places and Manner of holding Elections for Senators and 28 Representatives, shall be prescribed in each State by the Legislature 2 Nevada’s Legislature/representatives’ chosen manner of election. 3 Plaintiffs appear to classify the June 9, 2020 Nevada Primary as a “federal” election 4 because “[c]andidates for the office of U.S. Representative are on the Primary ballot.” (Id. 5 at 17.) Assuming that this primary constitutes a “federal election,” the Court disagrees with 6 Plaintiffs’ material premise—that the Plan is not the Legislature’s chosen manner of 7 election. 8 The Nevada Legislature has authorized the Secretary to enact voting regulations 9 under NRS § 293.124. The section provides: [10] 1. The Secretary of State shall serve as the Chief Officer of Elections for this 11 State. As Chief Officer, the Secretary of State is responsible for the execution and enforcement of the provisions of title 24 of NRS and all other 12 provisions of state and federal law relating to elections in this State. 13 2. The Secretary of State shall adopt such regulations as are necessary to carry out the provisions of [the election laws under Title 24—NRS Chapters 14 293–306]. 15 NRS § 293.124(1)–(2). While at the Hearing Plaintiffs’ counsel argued that the Plan is not 16 a regulation—but instead a news release—such is an argument of mechanical semantics. 17 The Plan is in fact a directive authorized by the Secretary regulating the upcoming Nevada 18 primary. The Court therefore finds that, as a baseline, the Plan is effectively prescribed by 19 the state’s legislature because the Nevada Legislature has in the first instance authorized 20 the Secretary to adopt regulations to carry out the state’s election laws. 21 Plaintiffs nonetheless argue that the Plan is inconsistent with the state’s election 22 laws, contrary to NRS § 293.247. (ECF No. 2 at 3–5.) NRS § 293.247 pronounces: [23] 1. The Secretary of State shall adopt regulations, not inconsistent with the election laws of this State, for the conduct of primary, general, special and [24] district elections in all cities and counties. Permanent regulations of the Secretary of State that regulate the conduct of a primary, general, special or [25] district election and are effective on or before the last business day of 26 /// 27 thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of ch[oo]sing Senators. [28] U.S. Const. art. I, § 4, cl. 1. election govern the conduct of that election. 2 . . . 3 3. The regulations must prescribe: [inter alia] 4 (j) Such other matters as determined necessary by the Secretary. [5] 4. The Secretary of State may provide interpretations and take other actions 6 necessary for the effective administration of the statutes and regulations governing the conduct of primary, general, special and district elections in this 7 State. 8 (Emphasis added.) 9 Plaintiffs particularly pinpoint four ways in which they believe the Plan is 10 “inconsistent” with election laws. Defendants and Intervenor-Defendants largely ignore the 11 minutiae of these purported inconsistencies. They instead directly argue that the all-mail 12 provisions of the Plan were lawfully prescribed pursuant to, inter alia, NRS § 293.213(4)— 13 detailed supra (ECF No. 25 at 6; ECF No. 28 at 2, 4; ECF No. 27-1 at 13) NRS § 14 293.247(4) (see ECF No. 25 at 5 (Washoe Registrar’s brief); and NRS §§ 293.343–.355 15 (ECF No. 27-1 at 13)). Plaintiffs similarly fail to grapple with the statutes Defendants and 16 Intervenor-Defendants contend authorize the all-mail in provisions of the Plan; Plaintiffs 17 merely claim that NRS § 293.213(4) was not intended to apply to the whole state. (ECF 18 No. 2 at 4 n.5.) Plaintiffs also do not particularly address subsections within NRS § 19 293.247, such as subsection (4),14 which the Court concludes also supports the 20 implementation of the Plan’s mail-in provisions. In any event, upon considering each of 21 Plaintiffs’ arguments of inconsistencies, the Court finds they are tenuous at best. The 22 Court addresses each purported inconsistency in turn below. 23 /// 24 /// [25] 14That is, Plaintiffs provide no argument beyond the claim at the Hearing that the 26 Plan is not a regulation and therefore the subsection does not apply. But, if NRS § 293.247(4) does not apply based on Plaintiffs’ “the Plan is not a regulation” contention, 27 then NRS § 293.247(1), which Plaintiffs rely on for their claimed inconsistencies would be equally inapplicable. Plaintiffs’ reliance on NRS § 293.247(1) in briefing is an implicit 28 concession that the Plan is a regulation. 2 sentence in subsection 1 of NRS § 293.247, because it was only announced on March 24, 3 2020. (ECF No. 2 at 3–4.) According to Plaintiffs, per subsection 1, the Plan had to be 4 implemented on or before the last business day of February 2020. (Id.) Plaintiffs’ argument 5 is flawed, at minimum, because the subject sentence clearly pertains to [p]ermanent 6 regulations of the Secretary.” NRS § 293.247(1). It is undisputed that the Plan is not 7 intended to be permanent—it only applies to the upcoming June 9, 2020 primary. (See, 8 e.g., ECF No. 1-2.) 9 Second, Plaintiffs argue that the Plan is inconsistent with certain requirements 10 under NRS §§ 293.205 and .206. (ECF No. 2 at 4.) It became clear at the Hearing that 11 Plaintiffs were more precisely contending that the Plan’s “designation” of mailing precincts 12 under NRS § 293.34315 was not timely per NRS § 293.205. Plaintiffs’ counsel appeared 13 unaware that the PI Motion also argues NRS § 293.206(1). In diligence, the Court 14 discusses both sections as briefed. 15 The first provision, NRS § 293.205, pertains to election precincts. Plaintiffs 16 particularly rely on NRS § 293.205(1), noting that it requires county clerks to establish 17 election precincts “on or before the third Wednesday in March of every even-numbered 18 year.” (Id.) NRS § 293.206 requires that “[o]n or before the last day in March of every even19 numbered year, the county clerk shall provide the Secretary of State and the Director of 20 the Legislative Counsel Bureau with a copy or electronic file of a map showing the 21 boundaries of all election precincts in the county,” NRS § 293.206(1). (See id.) In making 22 these arguments, Plaintiffs appear to recognize the obvious—that these provisions on 23 their face concern physical election precincts, not mail-in votes. (Id. (recognizing that 24 county clerks may establish “mailing precincts” with certain exceptions under NRS 25 293.343).) Plaintiffs nonetheless contend that based on NRS §§ 293.205(1) and .206(1) 26 /// [27] 15While both the PI Motion and Plaintiffs’ reply once reference NRS § 293.343, 28 neither even mentions the words “designate” or “designation.” (See generally ECF Nos. 2, 43.) 2 March 18, 2020. (Id.) 3 However, the Plan would not violate the date requirements of NRS § 293.206(1) 4 because March 24 is before the “last day in March.” Even accepting Plaintiffs’ position, in 5 briefing, that the Plan is inconsistent with NRS §§ 293.205(1) and .206(1), based on the 6 purported March 18 deadlines of these provisions and assuming such provisions apply 7 here, Plaintiffs’ argument is transparently grounded on the technicality of a difference of 8 six days. It is hard to imagine that a procedural difference of six days in implementation 9 would render the Plan inconsistent with Nevada’s election laws. 10 In any event, the Court finds that Plaintiffs’ argument does not support a conclusion 11 that the Plan is inconsistent. It is obvious that the Plan does not alter the establishment of 12 precincts nor their existence as a matter of fact. The Secretary echoes this in her 13 opposition. (See ECF No. 28 at 6 (“[T]here were no changes to precinct boundaries . . . 14 [t]he only change was to the method of voting within existing precinct boundaries.”).) On 15 its face, the Plan simply supersedes the need to appear at a physical precinct as the 16 Secretary found “necessary” due to the COVID-19 pandemic. (See ECF No. 1-1 (the 17 Secretary explaining that the Plan was enacted because in light of the uncertainties 18 surrounding the COVID-19 pandemic, “it became necessary for me to take action 19 regarding how the election will be conducted”).) 20 Moreover, the Court finds that the Secretary has authority based on the plain 21 reading of NRS §§ 293.213(4) and 293.247 to prescribe regulations, like the Plan here, to 22 allow for voting by mail. Particularly, § 293.213(4) gives the Secretary authority to approve 23 mailing precincts. As noted supra, Plaintiffs merely claim that NRS § 293.213(4) was not 24 intended to apply to the whole state. (ECF No. 2 at 4 n.5.) But § 293.213(4) does not 25 suggest such a reading because it effectively operates as an exception to the preceding 26 sections—e.g., subsections (1) and (3), which permits mailing precincts if fewer than 20 27 registered voters reside in a precinct, or fewer than 200 ballots were cast in the precinct 28 in the last general election, respectively. At minimum, the Secretary had the authority to 2 for voting by mail in all precincts pursuant to § 293.247(4). See NRS § 293.247(4) 3 (“providing that the Secretary “may provide interpretations and take other actions 4 necessary for the effective administration of the statutes and regulations governing the 5 conduct” of the state’s elections). Section 293.247(3) also requires the Secretary to 6 prescribe, among other things, “[s]uch other matters [i.e., forms, procedures, etc.,] as 7 determined necessary by the Secretary of State.” NRS § 293.247(3)(g). 8 The Court’s conclusion regarding the Secretary’s authority further applies to 9 Plaintiffs’ third claimed inconsistency. (ECF No. 2 at 4.) Plaintiffs’ third assertion of 10 inconsistency also relies on NRS §§ 293.205 and .206 and similarly contends that these 11 sections “indicate[] the [Nevada] Legislatures’ intent for such precincts for in-person 12 voting, not that the whole election be subsumed under an exception allowing mailing 13 districts in certain circumstances.” (Id.) Again, this argument in no way undermines the 14 Secretary’s implementation of all-mail voting in light of the authority the Nevada 15 Legislature has vested with the Secretary to, for example, act as she determines 16 necessary. See NRS § 293.247(3)(g), (4). Nor does Plaintiffs’ follow-on claim that the 17 noted NRS sections reflect the Nevada Legislature’s intent “to have regular in-person 18 voting and actual absentee-ballot as the controlling model” renders the Plan inconsistent. 19 (Id. at 4–5.) This latter argument is beside the point. Implementation of the Plan is a one20 off situation triggered by a pandemic. It therefore would not contravene the legislature’s 21 intent “as [to] the controlling model.” What is evident is that the Secretary’s challenged 22 action here also comports with the legislature’s intent. Plaintiffs’ third argument of 23 inconsistency therefore fails. 24 Finally, Plaintiffs contend in briefing, without citing to any particular provision, that 25 where mailing precincts are created, “county clerk[s] shall, at least 14 days before 26 establishing or designating a precinct as a mailing precinct . . . cause notice of such action 27 to be: (a) Posted [as prescribed] . . . ; and (b) Mailed to each Assemblyman, [etc. as 28 prescribed]” and argue that the Plan “supplant[s]” this requirement. (Id. at 5.) The Court 1 || nonetheless confirmed that the applicable provision is NRS § 293.213(5). Plaintiffs’ 2 || argument, as written, does not in fact contend that this provision is “inconsistent” with the 3 || legislature’s prescribed manner, but rather that the Plan displaces the requirement. 4 || Nonetheless, the Washoe Registrar has declared under penalty of perjury that she 5 || provided notice as required under NRS § 293.213(5). (ECF No. 50.)'® The argument is 6 || therefore a moot point—though standing alone it would not likely amount to a constitutional 7 || violation. 8 In sum, the Court finds that Plaintiffs’ various arguments that the Plan’s all-mail 9 || election provisions are inconsistent with Nevada’s election laws and thereby violate the 10 || U.S. Constitution all fail. The Court turns to Plaintiffs’ fifth claim. 3. Plaintiffs’ Fifth Claim 12 Plaintiffs’ fifth claim essentially extends from Plaintiffs’ second and fourth 13 || arguments. In this claim, Plaintiffs argue that the Plan violates the right to a republican 14 || form of government under the United States Constitution, U.S. Const., Article IV, § 4 15 || (Guarantee Clause). (ECF No. 2 at 18-20.) More specifically, Plaintiffs argue that the Plan 16 || violates “the very foundational rights of the [Plaintiffs] to a republican form of government 17 || and to vote in [a] manner established under a republican form of government.” (/d. at 1818 || 19.) Plaintiffs nevertheless concede that this issue may be deemed a nonjusticiable 19 || political question that this Court should not reach. (See ECF No. 2 at 19; ECF No. 43 at 20 || 8.) That alone is reason for this Court not to consider this claim. In any event, as a logical 21 || extension of the Court’s conclusions supra, the Court disagrees that the Plan is repugnant 22 || to a republican form of government. Therefore, this claim fails even accepting arguendo 23 || that it is a cognizable claim. 24 || /// 25 |} /// 26 || /// 27 ||) 16The Court inquired about NRS § 293.213(5) at the Hearing and the Washoe 28 || Registrar represented that the section was complied with. The Court then permitted the Washoe Registrar to submit a declaration attesting to her representation. [20] 2 Plaintiffs’ third claim is that the Plan violates the right to vote under the Purcell 3 principle. (ECF No. 2 at 16–17.) It is not clear that this is even a cognizable claim, though 4 Plaintiffs’ contention contains other defects that render the purported claim meritless, 5 which the Court discusses. 6 In Purcell, the Supreme Court vacated an order of the Court of Appeals for the Ninth 7 Circuit enjoining operation of Arizona voter identification procedures. 549 U.S. at 2. The 8 Supreme Court’s ultimate ruling to vacate the Ninth Circuit’s order resulted in the subject 9 Arizona election proceeding “without an injunction.” Id. at 6. 10 The ruling district court had denied the plaintiffs’ request for an injunction to enjoin 11 Arizona’s voter identification requirements. Id. at 3. In ruling, the district court did not issue 12 findings of facts or conclusions of law. Id.17 The plaintiffs appealed and the Ninth Circuit 13 set forth a briefing schedule that would have closed two weeks after the election. Id. The 14 circuit court ultimately issued a four-panel order, about a month before the election, 15 enjoining the enforcement of the Arizona requirement pending disposition after full 16 briefing. Id. The court “offered no explanation or justification” for its decision in the order 17 or upon a subsequent reconsideration. Id. 18 The Supreme Court’s decision to vacate the Ninth Circuit’s order emphasized the 19 “imminence of the election and the inadequate time to resolve the factual disputes” as well 20 as the possibility that a court’s order, or conflicting orders concerning election provisions, 21 may result in voter confusion. Id. at 4–6.18 The Court underscored that such possibility 22 /// 23 /// 24 17The Court noted that “[t]hese findings were important because resolution of legal questions in the Court of Appeals required evaluation of underlying factual issues.” Purcell, 25 549 U.S. at 3. 26 18In vacating the circuit court’s decision, the Court concluded that the Ninth Circuit failed to necessarily give deference to the district court, although recognizing that the 27 district court had not yet made factual findings. Purcell, 549 U.S. at 5 . The Court also found that the circuit court’s decision failed to show that the “ruling and findings of the District 28 Court [were] incorrect.” Id. 2 draws closer. Id. 3 This Court finds, as argued by Defendants (ECF No. 25 at 21–23, ECF No. 28 at 4 11), Plaintiffs’ reliance on Purcell is wholly inapposite to Plaintiffs’ position and ultimate 5 goal here—for the Court to issue an injunction.19 To be sure, Purcell does not appear to 6 support the Court deciding the PI Motion. Nonetheless, the Court considers and rejects 7 Plaintiffs’ specific contention that, as to courts, Purcell “applies to state and local election 8 administrators” because “election-alerting actions pose the same risk” as to both. (Id. at 9 16; see also id. at 17 .) Plaintiffs provide no support for treating courts and states the same 10 under Purcell. Clearly, courts and states serve very different functions in our system of 11 governance, including in relation to prescribing the rules that govern an election. It is 12 obvious in this regard that the states ordinarily do what the courts cannot—prescribe voting 13 regulations. The Secretary, acting on behalf of the State of Nevada, has done so here, 14 and the Court finds the contention that Purcell prohibits the state doing so meritless. 15 Accordingly, Plaintiffs’ third claim fails. 16 In sum, the Court finds that Plaintiffs have not established the merits of any of their 17 five claims raised in the Verified Complaint. 18 C. Balancing of the Equities 19 The Court further finds that a balancing of the equities favors Defendants and 20 Intervenor-Defendants. 21 “To determine which way the balance of the hardships tips, a court must identify 22 the possible harm caused by the preliminary injunction against the possibility of the harm 23 caused by not issuing it.” Univ. of Haw. Prof’l Assembly v. Cayetano, 183 F.3d 1096 , 1108 24 /// 25 19Plaintiffs also reference the recent Supreme Court decision in Republican Nat'l Comm. v. Democratic Nat'l Comm. (“RNC”), No. 19A1016, 2020 WL 1672702 (U.S. Apr. 26 6, 2020). (ECF No. 2 at 16–17.) In RNC, the Supreme Court relevantly stated: “This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election [27] rules on the eve of an election.” Id. at *1 (citing Purcell; Frank v. Walker, 574 U.S. 929 (2014); and Veasey v. Perry, 574 U. S. __ , 135 S. Ct. 9 (2014)). Thus, RNC is equally [28] unsupportive of Plaintiffs’ ultimate request for an injunction. 2 another.” Id. 3 As indicated above, even accepting Plaintiffs’ purported harm to them of being 4 disenfranchised due to vote dilution, such disenfranchisement could be, even more 5 concretely, claimed in the absence of the Plan (and additionally by confusion that may 6 result by the Court enjoining the Plan, and appeal—which would surely follow). The Court 7 therefore concludes that, at minimum, the Plan’s all-mail election implementation to 8 protect the public during a public health crisis tips the scale of equity in favor of Defendants 9 and Intervenor-Defendants (i.e., against the issuance of an injunction). 10 D. The Public Interest 11 “In exercising their sound discretion, courts of equity should pay particular regard 12 for the public consequences in employing the extraordinary remedy of injunction.” Winter, 13 555 U.S. at 24. It is clear that as triggered by the uncertainties of COVID-19, the public’s 14 interests align with the Plan’s all-mail election provisions. As provided above, an injunction 15 precluding Defendants’ use of mail ballots in the June 9, 2020 Primary would put 16 Nevadans at risk and may result in the very type of confusion that Purcell cautions against. 17 In short, the Court finds that Plaintiffs have not proven that they are entitled to have 18 this Court enjoin the Plan’s challenged provisions. 19 V. CONCLUSION 20 The Court notes that the parties made several arguments and cited to several cases 21 not discussed above. The Court has reviewed these arguments and cases and determines 22 that they do not warrant discussion as they do not affect the outcome of the issues before 23 the Court. 24 /// 25 /// 26 /// 27 /// 28 /// 1 It is therefore ordered that Plaintiffs’ motion for preliminary injunction (ECF No. 2) 2 || is denied for the reasons provided herein. 3 DATED THIS 30" day of April 2020. 5 —_ MIRANDA M. DU 6 CHIEF UNITED STATES DISTRICT JUDGE