PERKINS COIE LLP WOLF, RIFKIN, SHAPIRO, · WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP 3556 E. Russell Road, Second Floor Las Vegas, Nevada 89120 Tel: (702) 341-5200 [email protected]

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MARC E. ELIAS, ESQ. (D.C. Bar No. 442007) (pro hac vice forthcoming) HENRY J. BREWSTER, ESQ. (D.C. Bar No. 1033410) (pro hac vice forthcoming) COURTNEY A. ELGART, ESQ. (D.C. Bar No. 1645065) (pro hac vice forthcoming) PERKINS COIE LLP 700 Thirteenth St. NW, Suite 800 Washington, D.C. 20005-3960 Tel: (202) 654-6200 [email protected] [email protected] [email protected] ABHA KHANNA, ESQ. (Wash. Bar No. 42612) (pro hac vice forthcoming) JONATHAN P. HAWLEY, ESQ. (Cal. Bar. No. 319464) (pro hac vice forthcoming) PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, Washington 98101-3099 Tel: (206) 359-8000 [email protected] [email protected] BRADLEY SCHRAGER, ESQ. (SBN 10217) DANIEL BRAVO, ESQ. (SBN 13078) WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP 3556 E. Russell Road, Second Floor Las Vegas, Nevada 89120 Tel: (702) 341-5200 [email protected] [email protected] Attorneys for Proposed Intervenor-Defendants Nevada State Democratic Party, DNC Services Corporation/Democratic National Committee, DCCC, Priorities USA, and John Solomon

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

STANLEY WILLIAM PAHER, TERRESA MONROE-HAMILTON, and GARRY HAMILTON,

Plaintiffs,

vs. BARBARA CEGAVSKE, in her official capacity as Nevada Secretary of State, and DEANNA SPIKULA, in her official capacity as Registrar of Voters for Washoe County,

Case No.: 3:20-cv-00243-MMD-WGC MOTION TO INTERVENE AS DEFENDANTS

Case 3:20-cv-00243-MMD-WGC Document 27 Filed 04/27/20 Page 1 of 14

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Defendants,

and

NEVADA STATE DEMOCRATIC PARTY, DNC SERVICES CORPORATION/DEMOCRATIC NATIONAL COMMITTEE, DCCC, PRIORITIES USA, and JOHN SOLOMON,

Proposed Intervenor-Defendants.

Pursuant to Federal Rule of Civil Procedure 24, Proposed Intervenor-Defendants Nevada

State Democratic Party (“NSDP”), DNC Services Corporation/Democratic National Committee

(“DNC”), DCCC, Priorities USA, and John Solomon (collectively, “Proposed Intervenors”)

move to intervene as defendants in the above-titled action.

Plaintiffs Stanley William Paher, Terresa Monroe-Hamilton, and Garry Hamilton

challenge the election plans instituted by Defendants Barbara Cegavske, the Nevada Secretary of

State (the “Secretary”), and Deanna Spikula, the Registrar of Voters for Washoe County (the

“Washoe Registrar”), for the June 9, 2020 Nevada primary election (the “June Primary”).

Defendants’ decision to implement a nearly all-mail election for the June Primary is not just

reasonable, but constitutionally required to ensure that Nevada voters can safely exercise their

franchise in the midst of the coronavirus pandemic. Plaintiffs allege a hodgepodge of claims,

none of them viable, all in an attempt to undermine Defendants’ effort to protect Nevada voters

during an unprecedented public health crisis. In so doing, they pose a clear and direct threat to

Proposed Intervenors’ rights and legal interests.

For the reasons set forth below, Proposed Intervenors are entitled to intervene in this case

as a matter of right under Rule 24(a)(2). Such intervention is needed to ensure not only the

fairness of the June Primary, but also the substantial and distinct legal interests of Proposed

Intervenors, which will otherwise be inadequately represented in the litigation. In the alternative,

Proposed Intervenors should be granted permissive intervention pursuant to Rule 24(b). In


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accordance with Rule 24(c), a proposed Answer is attached as Exhibit 2. Also attached as

Exhibit 1 is Proposed Intervenors’ brief in opposition to Plaintiffs’ motion for a preliminary

injunction.1

BACKGROUND

In response to the unprecedented public health crisis dominating headlines and impacting

daily lives across the globe, on March 24, 2020, the Secretary announced plans to “conduct an

all-mail election” for the June Primary. Press Release, Nev. Sec’y of State, Secretary Cegavske

Announces Plan to Conduct the June 9, 2020 Primary Election by All Mail (Mar. 24, 2010),

https://www.nvsos.gov/sos/Home/Components/News/News/2823/23; see also Complaint, ECF

No. 1, ¶¶ 13–18. In the weeks that followed, county officials, including the Washoe Registrar,

released details of their respective plans implementing the all-mail election. See, e.g., Washoe

Cty. Registrar of Voters, Notice of Vote-By-Mail Election of Official Sample Ballot,

https://www.washoecounty.us/voters/vote-by-mail/Vote-by-Mail-Notice.pdf (last visited Apr.

24, 2020); Clark Cty. Election Dep’t, June 9, 2020, Primary Election Notice of All-Mail Ballot

Election (Apr. 15, 2020), https://www.clarkcountynv.gov/election/Documents/2020/Mailer-

Notice-20P-EXPANDED.pdf; see also Complaint ¶¶ 19–21.

Concerned about various statutory and constitutional infirmities that threaten to restrict

access to the franchise in the June Primary and beyond, NSDP, DNC, DCCC, and Priorities

USA, joined by four Nevada voters (collectively, the “State Court Plaintiffs”), filed a lawsuit in

Nevada state court seeking declaratory and injunctive relief (the “State Court Action”) on April

16, 2020. See Ex. 3. The complaint was followed by a motion for a preliminary injunction

shortly thereafter. See Ex. 4. Significantly, the State Court Plaintiffs “do not object to

1 While Proposed Intervenors believe, for the reasons discussed in their brief in opposition to Plaintiffs’ motion for a preliminary injunction, that Plaintiffs’ complaint should be dismissed in its entirety, they are including a proposed Answer to fully comply with the requirements of Rule 24(c). See Landry’s, Inc. v. Sandoval, No. 2:15-cv-00160-GMN-PAL, 2016 WL 1239254, at *3 (D. Nev. Mar. 28, 2016).


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Defendants’ expansion of vote by mail; indeed, the current public health crisis necessitates that

states allow voters to cast ballots without leaving their homes.” Ex. 3 ¶ 2; see also Ex. 4 at 3.

Instead, they initiated the State Court Action “to ensure that all eligible Nevada voters have a fair

opportunity to exercise their right to the franchise,” which requires both vote by mail and

meaningful opportunities for in-person voting. Ex. 3 ¶¶ 1–6.2

STANDARD OF LAW

“Rule 24 traditionally receives liberal construction in favor of applicants for

intervention.” Arkaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003); see also W. Expl. LLC v.

U.S. Dep’t of Interior, No. 3:15-cv-00491-MMD-VPC, 2016 WL 355122, at *2 (D. Nev. Jan. 28,

2016) (noting Rule 24’s liberal construction and “focus[] on practical considerations rather than

technical distinctions”).

The Ninth Circuit “require[s] applicants for intervention as of right pursuant to Rule

24(a)(2) to meet a four-part test”:

(1) the motion must be timely; (2) the applicant must claim a “significantly protectable” interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the parties to the action.

United States v. Aerojet Gen. Corp., 606 F.3d 1142, 1148 (9th Cir. 2010) (quoting California ex

rel. Lockyer v. United States, 450 F.3d 436, 440 (9th Cir. 2006)).

“Rule 24(b) permits the Court to allow anyone to intervene who submits a timely motion

and ‘has a claim or defense that shares with the main action a common question of law or fact.’”

2 The State Court Plaintiffs primarily challenge four attributes of Nevada’s election laws and procedures: the closure of all but one in-person polling location in each county for the June Primary, Ex. 3 ¶¶ 89–113; the exclusion of inactive voters from Defendants’ planned mailing of ballots for the June Primary, id. ¶¶ 114–29; Nevada’s Voter Assistance Ban, which prohibits anyone other than a voter’s family member from assisting with the return of a mail ballot, id. ¶¶ 135–61; and the Ballot Rejection Rules, Defendants’ policies for rejecting ballots due to missing or mismatched signatures on mail ballots, id. ¶¶ 162–73.


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Nevada v. United States, No. 3:18-cv-569-MMD-CBC, 2019 WL 718825, at *2 (D. Nev. Jan. 14,

2019) (quoting Fed. R. Civ. P. 24(b)(1)(B)). In addition to a common question of law or fact,

permissive intervention under Rule 24(b) also requires (1) a timely motion and (2) an

independent basis for the court’s jurisdiction. See Donnelly v. Glickman, 159 F.3d 405, 412 (9th

Cir. 1998).

ARGUMENT

I. Proposed Intervenors satisfy Rule 24(a)’s requirements for intervention as a matter of right.

Proposed Intervenors satisfy each of the four requirements of Rule 24(a).

First, the motion is timely. Plaintiffs filed their complaint on April 21, 2020; this motion

follows six days later, and in advance of the deadline provided by the Court for Defendants’

responses to Plaintiffs’ motions for a preliminary injunction and to consolidate. See ECF No. 14.

There has therefore been no delay, and no possible risk of prejudice to the other parties. See

League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997); see also

Nevada, 2019 WL 718825, at *2 (granting motion to intervene filed several weeks after action

commenced); W. Expl., 2016 WL 355122, at *2 (granting motion to intervene filed nearly two

months after action commenced).

Second and third, Proposed Intervenors have significant protectable interests in this

lawsuit that might be impaired by Plaintiffs’ causes of action. “An applicant [for intervention]

has a ‘significant protectable interest’ in an action if (1) it asserts an interest that is protected

under some law, and (2) there is a ‘relationship’ between its legally protected interest and the

plaintiff’s claims.” W. Expl., 2016 WL 355122, at *2 (quoting Lockyer, 450 F.3d at 441). In

assessing whether such an interest is sufficiently “impair[ed] or impede[d],” Fed. R. Civ. P.

24(a)(2), courts “look[] to the ‘practical consequences’ of denying intervention.” Nat. Res. Def.

Council v. Costle, 561 F.2d 904, 909 (D.C. Cir. 1977) (quoting Nuesse v. Camp, 385 F.2d 694,

702 (D.C. Cir. 1967)).

Plaintiffs’ challenge to the all-mail June Primary compromises legally protected interests


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for each of the Proposed Intervenors. If Plaintiffs succeed and Defendants’ plans to mail ballots

to registered voters are thwarted, then NSDP, DNC, DCCC, and Priorities USA—each of which

is an organization dedicated to promoting the franchise and ensuring the election of Democratic

Party candidates—will suffer direct injury because fewer Democratic voters will have an

opportunity to vote in the June Primary. See Ex. 3 ¶¶ 14–16. Without expansive options to vote

by mail, many voters will be forced to choose between risking their health to vote in person and

participating in the June primary, and the result will be far less robust voter turnout in the

primary. Courts have routinely concluded that interference with a political party’s electoral

prospects constitutes a direct injury that satisfies Article III standing, which goes beyond the

requirement needed for intervention under Rule 24(a)(2) in this case. See, e.g., Tex. Democratic

Party v. Benkiser, 459 F.3d 582, 586–87 (5th Cir. 2006) (recognizing that “harm to [] election

prospects” constitutes “a concrete and particularized injury”); Ohio Org. Collaborative v.

Husted, 189 F. Supp. 3d 708, 726 (S.D. Ohio 2016) (political party “established an injury in fact”

where “the challenged provisions will make it more difficult for its members and constituents to

vote”), rev’d on other grounds sub nom. Ohio Democratic Party v. Husted, 834 F.3d 620 (6th

Cir. 2016); N.C. State Conference of NAACP v. McCrory, 997 F. Supp. 2d 322, 342 (M.D.N.C.

2014) (political party has “direct, particularized interest in the outcome of an election”), aff’d in

part, rev’d in part on other grounds sub nom. League of Women Voters of N.C. v. North

Carolina, 769 F.3d 224 (4th Cir. 2014); see also Town of Chester v. Laroe Estates, Inc., 137 S.

Ct. 1645, 1651 (2017) (noting that an intervenor of right only needs “Article III standing in order

to pursue relief that is different from that which is sought by a party with standing”).

Moreover, the disruptive and disenfranchising effects of Plaintiffs’ action would require

each of these organizations to divert resources to address the lack of mail ballots, see Ex. 3

¶¶ 14-17—another legally protected interest that is implicated by Plaintiffs’ claims. See, e.g.,

Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007) (concluding that “new

law injures the Democratic Party by compelling the party to devote resources” it would not need

to absent law), aff’d, 553 U.S. 181 (2008); Democratic Nat’l Comm. v. Reagan, 329 F. Supp. 3d


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824, 841 (D. Ariz. 2018) (finding standing where law “require[d] Democratic organizations . . .

to retool their [get-out-the-vote] strategies and divert [] resources”), rev’d on other grounds sub

nom. Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989 (9th Cir. 2020) (en banc).

Proposed Intervenor John Solomon also has a distinct, legally protected interest in this

action. Solomon expects to receive a mail ballot under Defendants’ current plans for the all-mail

June Primary. If Plaintiffs prevail and he is not sent a mail ballot, Solomon’s expectations will be

upended and he might not be able to receive a mail ballot in time to cast it. The deprivation of

the right to vote is a significant and irreparable harm, one that is defended against by both the

U.S. and Nevada Constitutions. See U.S. Const. amends. 1, 14; Nev. Const. art. II, § 1; see also,

e.g., Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“It is beyond cavil that ‘voting is of the most

fundamental significance under our constitutional structure.’” (quoting Ill. State Bd. of Elections

v. Socialist Workers Party, 440 U.S. 173, 184 (1979))); State ex rel. McMillan v. Sadler, 25 Nev.

131, 170, 58 P. 284, 288 (1899) (“The right to vote for all officers[ in Article 2, Section 1] could

not be given in stronger or broader language.”).3

Fourth, Proposed Intervenors cannot rely on the parties in this case to adequately

represent their interests. “Courts consider three factors when assessing whether a present party

will adequately represent the interests of an applicant for intervention”:

(1) whether the interest of a present party is such that it will undoubtedly make all of a proposed intervenor’s arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether a proposed intervenor would offer any necessary elements to the proceeding that other parties would neglect.

W. Expl., 2016 WL 355122, at *3 (quoting Arakaki, 324 F.3d at 1086). “[T]he requirement of

inadequacy of representation is satisfied if the applicant shows that representation of its interests

‘may be’ inadequate,” and therefore “the burden of making this showing is minimal.” Id.

3 As one court has observed, “once the election occurs, there can be no do-over and no redress.” League of Women Voters, 769 F.3d at 247; see also Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1258 (N.D. Fla. 2016) (“This isn’t golf: there are no mulligans.”).


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(quoting Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir. 1983)); see also Trbovich

v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972).

As an overarching matter, Defendants’ inability to adequately safeguard Proposed

Intervenors’ interests is evidenced by the very existence of the State Court Action, in which all

but one of the Proposed Intervenors is a plaintiff.4 While Proposed Intervenors support the

expansion of vote by mail for the June Primary—and vigorously dispute Plaintiffs’ contentions

that mail voting is either unconstitutional or likely to result in increased fraud, see, e.g., Ex. 6

¶ 25—Proposed Intervenors have legitimate, articulated concerns that Defendants’ policies do

not go far enough in ensuring the franchise for all Nevada voters. See generally Ex. 3.

Defendants’ expansion of vote by mail is necessary given the specter of a global pandemic, but it

is not a panacea, and fully protecting Proposed Intervenors’ significant interests articulated

above requires both expansion of mail voting and meaningful opportunities for in-person voting.

Defendants’ reluctance to fully protect these interests is evidenced by the Secretary’s hostile

response to a letter from the NSDP that sought to address its ongoing concerns with the June

Primary. See April Corbin Girnus, Nevada Dems Push for Changes to Upcoming All-Mail

Primary, Nev. Current (Apr. 15, 2020), https://www.nevadacurrent.com/2020/04/15/nevada-

dems-push-for-changes-to-upcoming-all-mail-primary. The dispute between NSDP and the

Secretary ultimately led to the filing of the State Court Action, and now persuades Proposed

Intervenors that Defendants cannot be relied upon to adequately safeguard their legally protected

interests.

Phrased in the parlance of Rule 24, neither Plaintiffs nor Defendants have interests “such

that [they] will undoubtedly make all of” Proposed Intervenors’ arguments. W. Expl., 2016 WL

355122, at *3 (quoting Arakaki, 324 F.3d at 1086). While Defendants are expected to defend the

expansion of vote by mail generally, they will not join Proposed Intervenors in advocating for

4 John Solomon is not one of the State Court Plaintiffs, but he served as a declarant in support of their motion for a preliminary injunction. See Ex. 4 at 16; Ex. 5.


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expanding the all-mail election to include inactive voters or providing accompanying in-person

voting opportunities. See Ex. 3 ¶¶ 89–129. Defendants and Proposed Intervenors further part

ways on the validity of Nevada’s Voter Assistance Ban and Ballot Rejection Rules, see id.

¶¶ 135-73—the latter of which are referenced in Plaintiffs’ complaint and might therefore be at

issue in this lawsuit as well as the State Court Action. See Complaint ¶¶ 31–32. By rejecting the

NSDP’s overtures and necessitating the filing of the State Court Action, Defendants have clearly

demonstrated that they are neither “capable [nor] willing to make such” critical arguments. W.

Expl., 2016 WL 355122, at *3 (quoting Arakaki, 324 F.3d at 1086); see also, e.g., Kleissler v.

U.S. Forest Serv., 157 F.3d 964, 974 (3d Cir. 1998) (granting motion to intervene as of right

where private parties’ interests diverged from the government’s interest in representation, and

where “[t]he early presence of intervenors may serve to prevent errors from creeping into the

proceedings, clarify some issues, and perhaps contribute to an amicable settlement”); Ohio River

Valley Envtl. Coal., Inc. v. Salazar, No. 3:09-0149, 2009 WL 1734420, at *1 (S.D.W. Va. June

18, 2009) (granting motion to intervene as of right where defendant and proposed intervenor had

identical goals but the “difference in degree of interest could motivate the [intervenor] to mount

a more vigorous defense” and “[t]he possibility that this difference in vigor could unearth a

meritorious argument overlooked by the current Defendant justifies the potential burden on

having an additional party in litigation”).

Proposed Intervenors intend to forcefully promote the ability of all eligible Nevadans to

cast ballots in the June Primary, including but not limited to those who are able to vote by mail

under Defendants’ all-mail election plans, and to protect the electoral and financial interests of

organizations like the NSDP, DNC, DCCC, and Priorities USA—“necessary elements” to ensure

that Nevadans’ rights under the First and Fourteenth Amendments to the U.S. Constitution, as

well as Article 2, Section 1 of the Nevada Constitution, are not “neglect[ed].” W. Expl., 2016 WL

355122, at *3 (quoting Arakaki, 324 F.3d at 1086). Because these arguments will not be made by

the current parties to the litigation, Proposed Intervenors cannot rely on Defendants to provide

adequate representation.


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II. Alternatively, Proposed Intervenors satisfy Rule 24(b)’s requirements for permissive intervention.

Even if this Court were to find Proposed Intervenors ineligible for intervention as of

right, Proposed Intervenors easily satisfy the requirements for permissive intervention under

Rule 24(b), which provides the Court with broad discretion “to allow anyone to intervene who

submits a timely motion and ‘has a claim or defense that shares with the main action a common

question of law or fact.’” Nevada, 2019 WL 718825, at *2 (quoting Fed. R. Civ. P. 24(b)(1)(B)).5

“Because a court has discretion in deciding whether to permit intervention, it should consider

whether intervention will cause undue delay or prejudice to the original parties, whether the

applicant’s interests are adequately represented by the existing parties, and whether judicial

economy favors intervention.” Id. (citing Venegas v. Skaggs, 867 F.2d 530–31 (9th Cir. 1989)).

For the reasons discussed in Part I supra, Proposed Intervenors’ motion is timely, and

they cannot rely on Defendants to adequately protect their interests. Proposed Intervenors also

have defenses to Plaintiffs’ claims that share common questions of law and fact. For example,

the State Court Plaintiffs have emphasized that Defendants do, contrary to Plaintiffs’ arguments,

retain the power to designate all-mail elections. See Ex. 3 ¶¶ 29–31 (discussing Defendants’

power to create mailing precincts pursuant to Nevada Revised Statutes §§ 293.343–293.355).

And significantly, intervention will result in neither prejudice nor undue delay. Proposed

Intervenors have an undeniable interest in a swift resolution of both this action and the State

Court Action, to ensure that Defendants have sufficient time to allow every Nevada voter to cast

a ballot in the June Primary. Indeed, Proposed Intervenors contend that this action itself will

cause harmful delays that will stymie Defendants’ efforts to circulate mail ballots. Proposed

Intervenors therefore have a strong interest in both opposing Plaintiffs’ pending motion for a

5 Although permissive intervention also generally requires that “the court has an independent basis for jurisdiction,” that finding “is unnecessary where, as here, in a federal question case the proposed intervener raises no new claims.” Nevada, 2019 WL 718825, at *2 (quoting Donnelly, 159 F.3d at 412).


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preliminary injunction and moving to dismiss their baseless complaint as soon as possible. Given

the legal and factual shortcomings of Plaintiffs’ claims, Proposed Intervenors are confident that

their intervention in this case, and the filings that will follow, will result in expeditious resolution

of this litigation.

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CONCLUSION

For the reasons stated above, Proposed Intervenors respectfully request that the Court

grant their motion to intervene as a matter of right under Rule 24(a)(2) or, in the alternative,

permit them to intervene under Rule 24(b).6

DATED this 27th day of April, 2020

WOLF, RIFKIN, SHAPIRO,

SCHULMAN & RABKIN, LLP By: /s/ Bradley S. Schrager Bradley S. Schrager, Esq., SBN 10217

Daniel Bravo, Esq., SBN 13078 3556 E. Russell Road, Second Floor Las Vegas, Nevada 89120 Marc E. Elias, Esq.* Henry J. Brewster, Esq.* Courtney A. Elgart, Esq.* PERKINS COIE LLP 700 Thirteenth St. NW, Suite 800 Washington, D.C. 20005-3960 Abha Khanna, Esq.* Jonathan P. Hawley, Esq.* PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, Washington 98101-3099 Attorneys for Proposed Intervenor-Defendants Nevada State Democratic Party, DNC Services Corporation/Democratic National Committee, DCCC, Priorities USA, and John Solomon *Pro hac vice applications forthcoming

6 Alternatively, should the Court decline to grant Proposed Intervenors’ motion to intervene, they respectfully request permission to file the accompanying brief in opposition to Plaintiffs’ motion for a preliminary injunction (Exhibit 1) as an amicus brief. See People’s Legislature v. Miller, No. 2:12-cv-00272-MMD-VCF, 2012 WL 3536767, at *5 (D. Nev. Aug. 15, 2012).


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CERTIFICATE OF SERVICE

I hereby certify that on this 27th of April, 2020 a true and correct copy of MOTION TO

INTERVENE AS DEFENDANTS was served via the United States District Court’s CM/ECF

system on all parties or persons requiring notice.

By: /s/ Dannielle Fresquez Dannielle Fresquez, an Employee of

WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP


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Index of Exhibits

Exhibit Description No. of Pages

1 Brief in Opposition to Plaintiffs’ Motion for a Preliminary

Injunction

21

2 Proposed Answer 10

3 Complaint, Corona v. Cegavske, No. 20-OC-00064-1B (Nev.

Dist. Ct.), filed April 16, 2020.

66

4 Plaintiffs’ Emergency Motion for Preliminary Injunction and

Declaratory Relief, Corona v. Cegavske, No. 20-OC-00064-

1B (Nev. Dist. Ct.), filed April 22, 2020.

43

5 Declaration of John D. Solomon, filed in support of Plaintiffs’

Emergency Motion for Preliminary Injunction and


1B (Nev. Dist. Ct.), dated April 21, 2020.

4

6 Declaration of Dr. Daniel C. McCool, filed in support of

Plaintiffs’ Emergency Motion for Preliminary Injunction and


1B (Nev. Dist. Ct.), dated April 22, 2020.

19


Exhibit 1

Brief in Opposition to Plaintiffs’ Motion for a Preliminary Injunction

Exhibit 1

Case 3:20-cv-00243-MMD-WGC Document 27-1 Filed 04/27/20 Page 1 of 22

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MARC E. ELIAS, ESQ. (D.C. Bar No. 442007) (pro hac vice forthcoming) HENRY J. BREWSTER, ESQ. (D.C. Bar No. 1033410) (pro hac vice forthcoming) COURTNEY A. ELGART, ESQ. (D.C. Bar No. 1645065) (pro hac vice forthcoming) PERKINS COIE LLP 700 Thirteenth St. NW, Suite 800 Washington, D.C. 20005-3960 Tel: (202) 654-6200 [email protected] [email protected] [email protected] ABHA KHANNA, ESQ. (Wash. Bar No. 42612) (pro hac vice forthcoming) JONATHAN P. HAWLEY, ESQ. (Cal. Bar. No. 319464) (pro hac vice forthcoming) PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, Washington 98101-3099 Tel: (206) 359-8000 [email protected] [email protected] BRADLEY SCHRAGER, ESQ. (SBN 10217) DANIEL BRAVO, ESQ. (SBN 13078) WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP 3556 E. Russell Road, Second Floor Las Vegas, Nevada 89120 Tel: (702) 341-5200 [email protected] [email protected] Attorneys for Intervenor-Defendants Nevada State Democratic Party, DNC Services Corporation/Democratic National Committee, DCCC, Priorities USA, and John Solomon



Plaintiffs,


Defendants,

Case No.: 3:20-cv-00243-MMD-WGC BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION


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and


(Proposed) Intervenor-Defendants.

INTRODUCTION

The United States is in the throes of an unprecedented public health crisis, with a highly

infectious coronavirus spreading rapidly throughout the country. As of the date of this filing,

Nevada has 4,398 reported cases, including 203 deaths, and that number is growing by the day.

President Trump declared a national emergency on March 13, and as of the date of this filing 95

percent of the American population is subject to “stay at home” orders issued by their local

governments in a concerted effort to slow the spread of the dangerous virus and protect the

health care system and employees battling against it. Nevada’s residents have been among that

number since April 1, when the Governor ordered all Nevadans to stay home and all non-

essential business to close until at least April 30. Even if the stay at home order is modified or

lifted―on April 30 or after―life will not be returning to normal for some time. Any vaccine is

likely still over a year away, and the virus has proved to be not only highly contagious, but

stealth in its transmission, with asymptomatic people unwittingly passing it through the

population.

Against this backdrop, Defendant Barbara Cegavske, the Nevada Secretary of State (the

“Secretary”), announced a plan on March 24, “in partnership with Nevada’s 17 county election

officials,”—including Defendant Deanna Spikula, the Registrar of Voters for Washoe County

(the “Washoe Registrar”)—to proactively mail ballots to all registered voters with an “active”

registration status for the swiftly approaching June 9 primary (the “June Primary”). See

Complaint, ECF No. 1, ¶¶ 13–18.


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Plaintiffs are individual Nevada voters represented by True the Vote,1 and have filed this

lawsuit in an effort to prevent Defendants from acting to protect the electorate in the face of the

pandemic. Plaintiffs not only lack standing to invoke the federal judiciary’s powers to attempt to

block access to the franchise by millions of their fellow Nevadans, they fail to state a cognizable

federal claim. Plaintiffs’ claims are grounded in their contention that the Secretary’s decisions

violate Nevada law. But the Eleventh Amendment squarely prevents this Court from ordering the

Secretary, a state official, to obey state law. Even absent this insurmountable hurdle, Plaintiffs’

claims fail as a matter of law. Because Plaintiffs’ claims fail at the outset, Plaintiffs are unable to

establish that they are likely to succeed on the merits.

Moreover, if this Court grants Plaintiffs’ requested injunction, countless Nevadans would

suffer severe and extraordinary irreparable harm—including many members of the

organizational Intervenor-Defendants, as well as Intervenor-Defendant John Solomon himself.

Those who cannot get a ballot through the absent ballot system, whether because they do not

know how to navigate the absent ballot voting system, their ballot does not arrive in time, or

otherwise, will be required to choose between serious risk to their health or sacrificing their right

to vote. Thus, even if there were some basis for concluding that Plaintiffs had any chance of the

success on the merits (and they have none), each of the remaining factors weighs heavily against

granting Plaintiffs’ request for injunctive relief.

For all of these reasons, the Court should deny the pending motion for a preliminary

injunction.

BACKGROUND

On March 24, 2020, the Secretary, the Washoe Registrar, and the registrars for Nevada’s

16 other counties announced their intention to conduct the June Primary predominantly by mail,

1 See Suevonn Lee, A Reading Guide to True the Vote, the Controversial Voter Fraud Watchdog, ProPublica (Sept. 27, 2012), https://www.propublica.org/article/a-reading-guide-to-true-the-vote-the-controversial-voter-fraud-watchdog.


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to protect voters and elections officials in the face of the growing health crisis. In the weeks that

followed, county officials began posting notices describing their specific plans to adapt voting in

light of the pandemic. See, e.g., Complaint ¶¶ 19–21. The essential features of these plans are

that county clerks intend to: (1) mail ballots to every registered voter with active status in early

May, and (2) restrict in-person voting to one polling location per county.

On April 16, Intervenor-Defendants the Nevada State Democratic Party, Democratic

National Committee, DCCC, and Priorities USA, along with several individual voters

(collectively, the “State Court Plaintiffs”), filed a lawsuit in Nevada state court (the “State Court

Action”) challenging certain aspects of Defendants’ plans as unduly restrictive on the right to

vote as afforded Nevadans under Nevada law and the state and federal constitutions. See Motion

to Intervene as Defendants, Ex. 3 (Complaint, Corona v. Cegavkse, No. 20-OC-00064-1B (Nev.

Dist. Ct.), filed April 16, 2020). Specifically, the State Court Plaintiffs argue that those legal

authorities prohibit the Secretary and county registrars from (1) excluding registered voters with

an “inactive” status from the population of voters who will be affirmatively mailed ballots in

advance of the upcoming primary, and (2) limiting in-person voting to a single polling location

in every county, regardless of the county’s geographic or population size. The State Court

Plaintiffs also allege that the ongoing pandemic exacerbates the disenfranchising impact of two

preexisting Nevada laws—one that makes it a crime to assist a voter with returning a mail ballot,

and another that allows election officials, untrained in signature analysis, to reject mail ballots if

they determine that the signature on a ballot return envelope does not belong to the voter. The

State Court Action is ongoing, and the State Court Plaintiffs have moved for a preliminary

injunction.2

2 To be perfectly clear, the State Court Plaintiffs do not contend, nor do they believe, that Nevada’s decision to move to a primarily mail election violates state or federal law. See, e.g., Motion to Intervene as Defendants, Ex. 3 ¶ 2. To the contrary, had Defendants not voluntarily acted to do so, and instead forced all voters to vote in person despite the ongoing pandemic—precisely the relief that Plaintiffs in the instant action seek from this Court—they would have

(footnote continued)


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On April 21, Plaintiffs filed the present case challenging Defendants’ decision to mail

ballots to registered voters in Nevada. On the same day, they moved for a preliminary and

permanent injunction, seeking an order from this Court requiring Defendants to comply with

state law. See generally Complaint; Plaintiffs’ Preliminary-Injunction Motion (“Motion”), ECF

No. 2.3 The Court ordered responsive pleadings to be filed by Monday, April 27, 2020. See ECF

No. 14. Intervenor-Defendants have moved to intervene and file this opposition to the motion for

a preliminary injunction.

LEGAL STANDARD

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). The party requesting an injunction must

demonstrate (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm absent

injunctive relief, (3) that the balance of equities tips in the party’s favor, and (4) that “an

injunction is in the public interest.” Id. at 20. A court may deny preliminary injunctive relief if

defendants are likely to succeed on the merits of their defense. Perfect 10, Inc. v. Amazon.com,

Inc., 508 F.3d 1146, 1158 (9th Cir. 2007) (quoting Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal, 546 U.S. 418, 429 (2006)). The failure to state a claim for relief is further

grounds for denying a motion for preliminary injunction. See Villagrana v. Recontrust Co., N.A.,

No. 3:11-cv-00652-ECR-WGC, 2012 WL 1890236, at *7 (D. Nev. May 22, 2012) (“preliminary

injunction will not issue” where claims must be dismissed).

violated state and federal law. The State Court Plaintiffs contend that Defendants’ policies do not go far enough in ensuring the franchise for all Nevada voters—expanding vote by mail is necessary given the specter of a global pandemic, but it is not a panacea, and the law requires both availability of mail voting and meaningful opportunities for in-person voting. See generally id., Ex. 3.

3 After filing the complaint in this case, True the Vote, representing two different individual voters, filed a motion to intervene in the State Court Action, raising exactly the same arguments they have raised in this case.


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ARGUMENT

I. Plaintiffs cannot succeed on the claims alleged in their complaint.

The lynchpin of Plaintiffs’ claims is their assertion that Defendants and other state

election officials are violating Nevada’s election laws. Plaintiffs’ complaint and motion for a

preliminary injunction are replete with references to what Nevada’s election laws require, what

the Nevada Legislature did and did not intend, and how Defendants’ actions do or do not

comport with those requirements and that intent.4

Plaintiffs’ claims fail from the outset for at least three reasons. First, this Court is barred

by the Eleventh Amendment from enjoining state officials based on purported violations of state

law. Second, Plaintiffs assert nothing more than a generalizable interest in having Nevada

officials follow the law and accordingly lack Article III standing. Third, federal law does not

provide Plaintiffs a cause of action to enforce state law or otherwise address their grievances. For

all of these reasons, not only are Plaintiffs unlikely to succeed on the merits, this Court should

4 See, e.g., Complaint ¶ 12 (“Under Nevada law . . .”); id. ¶ 22 (“The Nevada Legislature has enacted detailed legislation . . .”); id. ¶ 23 (“Chapter 293 requires the Secretary . . .”); id. ¶¶ 24–29, 31–35 (summarizing Nevada election law); id. ¶ 30 (“Nevada requires . . .”); id. ¶ 44 (“The Plan violates the Voters’ right to vote by diluting their votes with illegal votes given the removal of safeguards against illegal voting established by the [Nevada] Legislature.”) id. ¶ 49 (“The Plan would overrule and replace the [Nevada] representatives’ chosen manner of election . . .”); id. ¶ 55 (“The Plan alters the nature of Nevada’s election . . .”); id. ¶ 59 (“[T]he Plan is not at all what the [Nevada] Legislature chose . . .”) id. ¶ 64 (“A republican form of government is lost if a Secretary of State and County Administrators supplant the people’s elected representative in exercising powers entrusted entirely to the [Nevada] Legislature, in this case establishing the manner of elections.”); id. at 13 (seeking to “enjoin the Secretary and County Administrators to implement the primary election in the manner the Nevada Legislature prescribed”); Motion at 2 (“[T]he Plan strips the [Nevada] Legislature’s vote-fraud-prevention safeguards . . .”); id. at 3–6 (summarizing Nevada election law); id. at 7–15 (describing vote dilution claim premised on “weakened safeguards” provided by Nevada law); id. at 15–16 (“[T]he Plan would overrule and replace the [Nevada] representatives’ chosen manner of election . . .”); id. at 16–17 (arguing that “state and local election administrators” should not be permitted to alter procedures that “the [Nevada] Legislature established”); id. at 17–18 (“[T]he Primary must be conducted in the [Nevada] Legislature’s prescribed manner.”); id. at 18–20 (“The Plan substitutes the Secretary and County Administrators for the [Nevada] Legislature . . .”); id. at 20–21 (“[The] Plan [] is not authorized by the [Nevada] Legislature” and is “in violation of controlling laws”); id. at 21–22 (“The public interest favors having elections held under controlling authorities.”).


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not even reach the merits.

Even if this Court were to evaluate the merits of Plaintiffs’ claims, they are woefully

deficient. Plaintiffs’ central premise, that Defendants are not authorized to mail ballots to all

registered voters under Nevada’s election laws, is simply incorrect. And, as both a legal and

factual matter, Plaintiffs cannot establish a likelihood of success on their claim of vote dilution

based on the specter of voter fraud. Accordingly, Plaintiffs are not likely to succeed on the merits

of their claims.

A. The Eleventh Amendment bars this Court from entering Plaintiffs’ requested relief.

Plaintiffs’ claims rely wholly and unequivocally on the assertion that Defendants are

violating Nevada state election law by proactively mailing ballots to registered voters instead of

requiring voters to request ballots through the absent voting process.5 Accordingly, Plaintiffs ask

this Court to (1) adjudicate whether Defendants—state election officials—have violated state

law, and (2) assuming that the Court interprets Nevada law in the way Plaintiffs urge, issue a

preliminary injunction requiring state officials to comply with state law. See Complaint at 12–13

(“Wherefore, Plaintiffs respectfully request this Court [to]: . . . Preliminarily and permanently

enjoin the Secretary and County Administrators to implement the primary election in the manner

the Nevada Legislature prescribed.” (emphasis added)). But as the U.S. Supreme Court

explained decades ago in Pennhurst State School & Hospital v. Halderman, “the principles of

federalism that underlie the Eleventh Amendment” prohibit a federal court from granting “relief

against state officials on the basis of state law, whether prospective or retroactive.” 465 U.S. 89,

5 Counts I and II challenge the plan to mail ballots to all voters on the premise that the right to vote enshrined in the U.S. and Nevada Constitutions guarantees them the right to have the state election laws enforced. See Complaint ¶¶ 44, 49. Count III raises a claim under the Purcell doctrine, casting Defendants’ plans to mail ballots to registered voters as a “change” in the rules governing elections from those prescribed by the Legislature. Id. ¶¶ 50–55. Counts IV and V allege that Defendants’ all-mail election infringes upon the Nevada Legislature’s authority to establish election laws. Id. ¶¶ 57, 64.


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106 (1984). Because Plaintiffs’ entire complaint rests on their misconception that a federal court

can order state officials to comply with state law, it should be dismissed for lack of jurisdiction,

and their motion for a preliminary injunction should be denied.

Pennhurst announced a bright line rule that has been applied countless times by federal

courts since. Simply put: “The Eleventh Amendment prevents a federal court from issuing an

injunction against state officials solely to require them to adhere to state law.” Thompson v.

Alabama, No. 2:16-CV-783-WKW, 2017 WL 3223915, at *8 (M.D. Ala. July 28, 2017)

(emphasis added); see also Neuwirth v. La. State Bd. of Dentistry, 845 F.2d 553, 557 (5th Cir.

1988) (The Eleventh Amendment “‘allows federal courts to hear suits against state officials if the

suit seeks to force them to conform their conduct to federal law,’ but does not apply to ‘suits

which would seek to have federal judges order state officials to conform their conduct to state

law.’” (quoting Ronald A. Rotunda et al., Constitutional Law: Substance and Procedure § 2:12

(1986)); Lelsz v. Kavanagh, 815 F.2d 1034, 1034 (5th Cir. 1987) (per curiam) (“Pennhurst

prohibits a federal court from ordering a state to follow state law.”). This is true even when the

request to order state officials to conform to state law is cloaked in a federal claim to relief. See,

e.g., Thompson, 2017 WL 3223915, at *8 (denying preliminary injunction because plaintiffs’

federal constitutional claims rested wholly on the premise that state officials were violating state

law); see also Neuwirth, 845 F.2d at 561 (Wisdom, J., dissenting) (“If not restrained in some

way, federal power under the fourteenth amendment could raise any state law wrong to the level

of a due process violation.”).

At bottom, Plaintiffs’ only grievance is that Defendants are not following state law, and

the only relief they request is an order requiring Defendants to follow Nevada law.

Consequently, the Eleventh Amendment bars their suit, rendering it not just unlikely but

impossible for them to succeed on the merits.

B. Plaintiffs lack standing to pursue their claims.

Plaintiffs lack Article III standing for at least two reasons, both of which deprive this

Court of subject matter jurisdiction.


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First, Plaintiffs have not suffered an injury-in-fact as required to establish Article III

standing. Plaintiffs claim an interest in having Nevada’s election laws enforced based on their

status as registered voters, and suggest that Defendants’ failure to enforce Nevada’s laws in the

manner Plaintiffs see fit could lead to an increase in illegal votes which would harm them as

rightful voters. See generally Complaint. The problem with this theory of injury is two-fold. For

one, this purported injury is no different than that of any other voter in Nevada (or any other

citizen who will be governed by the candidates elected through Nevada’s elections, for that

matter). The U.S. Supreme Court’s case law has “consistently held that a plaintiff raising only a

generally available grievance about government—claiming only harm to his and every citizen’s

interest in proper application of the Constitution and laws, and seeking relief that no more

directly and tangibly benefits him than it does the public at large—does not state an Article III

case or controversy.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 573-74 (1992); see also id. at 575-

76 (“[A]n injury amounting only to the alleged violation of a right to have the Government act in

accordance with law [is] not judicially cognizable . . . [and] cannot alone satisfy the requirements

of Art. III without draining those requirements of meaning.”) (internal quotation marks and

citation omitted).

Second, Plaintiffs’ alleged injury is wholly “conjectural,” and neither “actual nor

imminent.” Id. at 560 (quotation marks and citation omitted). Their claim that the switch from an

absent ballot system to a vote by mail system will lead to voter fraud is not supported by any

allegations of fact (or, in their motion for preliminary injunction, any actual evidence). Instead, it

is supported wholly by unfounded and speculative assertions. Accordingly, it does not confer

Article III standing. See Am. Civil Rights Union v. Martinez-Rivera, 166 F. Supp. 3d 779, 789

(W.D. Tex. 2015) (“[T]he risk of vote dilution[ is] speculative and, as such, [is] more akin to a

generalized grievance about the government than an injury in fact.”); cf. United States v. Florida,

No. 4:12cv285-RH/CAS, 2012 WL 13034013, at *1 (N.D. Fla. Nov. 6, 2012) (rejecting True the

Vote’s motion to intervene under Rule 24 based on the same theory of vote dilution because its

“asserted interests are the same . . . as for every other registered voter in the state”).


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Because Plaintiffs lack standing to even assert their claims, those claims are unlikely to

succeed.

C. Plaintiffs fail to allege a cognizable federal cause of action.

Even if Plaintiffs had standing or could obtain the relief they seek (and for the reasons

discussed above, they cannot), they have not cited a single federal statute, constitutional

provision, or case that provides a cognizable private right of action to enforce Nevada’s election

laws. This provides further reason to deny Plaintiffs’ motion for a preliminary injunction.

Counts I and II broadly invoke the right to vote as protected by the U.S. Constitution, but

Plaintiffs allege neither that Defendants’ policies prevent them from casting ballots nor that their

right to vote is burdened in any way by Defendants’ actions. Instead, they suggest, in wholly

conclusory fashion and without any support, that the right to vote as enshrined in the U.S.

Constitution also gives voters a private right of action in federal court to broadly enforce state

election laws. But this ignores that voting rights cases permit plaintiffs to bring suit in federal

court under two circumstances: (1) where the defendants’ actions violate a federal statute, see,

e.g., Sanchez v. Cegavske, 214 F. Supp. 3d 961, 965–66 (D. Nev. 2016), or (2) where the

defendants are applying state elections law in a manner that violates the federal constitution, see,

e.g., PEST Comm. v. Miller, 648 F. Supp. 2d 1202, 1214–15 (D. Nev. 2009). There is no

precedent for voters who simply contend—as Plaintiffs here do—that a state elections official is

acting in contravention of state law to obtain relief on that basis from a federal court. Because

the U.S. Constitution does not provide the right that Plaintiffs seek to vindicate in Counts I and

II, they fail to state a claim on which relief can be granted and thus cannot succeed on the merits

of these claims.

With Count III, Plaintiffs again attempt to create a brand new cause of action never

before recognized by a federal court, by reading a handful of sentences out of context from the

U.S. Supreme Court’s decision in Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam). Count III

asserts that Defendants’ “[p]lan alters the nature of Nevada’s election” in violation of the

“Purcell Principle.” Complaint ¶¶ 50–55; see also Motion at 16–17. Plaintiffs appear to concede


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that the U.S. Supreme Court’s opinion in Purcell generally stands for the proposition that federal

courts should refrain from altering or enjoining a state’s election rules on the eve of an election.

See 549 U.S. at 5–6; Complaint ¶¶ 51–52. But no court has done what Plaintiffs now ask this

Court to do—extend the doctrine of federal judicial restraint that Purcell announced to create a

private cause of action for voters who seek to enjoin state election officials from altering or

amending their own election rules. Accordingly, this claim cannot serve as a basis for injunctive

relief.

Plaintiffs’ reliance on the U.S. Constitution’s Elections Clause in Count IV, and its

guarantee “to every State . . . a Republican Form of Government” in Count V, is similarly, and

fatally, defective. See Complaint ¶¶ 56–66; Mot. at 17–20. Again, Plaintiffs do not and cannot

produce any authority establishing a private cause of action under these clauses. Cf. U.S. House

of Representatives v. Burwell, 130 F. Supp. 3d 53, 78 (D.D.C. 2015) (noting private citizens

generally lack power to “deputiz[e] themselves in an effort to enforce federal law”). Indeed,

courts have rejected similar efforts to build a claim in this way. See Largess v. Supreme Judicial

Court, 373 F.3d 219, 228 & n.9 (1st Cir. 2004) (per curiam) (affirming denial of injunctive relief

where “individuals . . . attempt[ed] to invoke the Guarantee Clause against state officials”).

In the absence of cognizable hooks for their ostensibly federal causes of action, Plaintiffs

has no likelihood of succeeding on their claims Accordingly, Intervenor-Defendants’ motion for

a preliminary injunction should be denied. See Villagrana, 2012 WL 1890236, at *7.

D. Plaintiffs’ claims also fail on the merits.

Even if the Court were to examine the actual merits of Plaintiffs’ claims, Plaintiffs

motion for a preliminary injunction should be denied because they have no chance of success.

This conclusion necessarily follows for at least two reasons: (1) Plaintiffs are simply wrong on

their reading of Nevada law, which undergirds the entirety of their complaint; and (2) Plaintiffs’

claims fail under the Anderson-Burdick balancing test, which applies to these types of challenges

to elections laws.


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1. Defendant’s decision to mail ballots to registered voters is contemplated by, and consistent with, Nevada law.

Defendants’ decision to mail ballots to registered voters in Nevada is explicitly

countenanced by Nevada statutes. Through the laws governing mailing precincts—specifically,

Nevada Revised Statutes (“N.R.S.”) 293.343 through 293.355—the Nevada Legislature has

given the Secretary and the county clerks authority to mail ballots to all registered voters rather

than requiring voters to request those ballots through the absent ballot process.

N.R.S. 293.213 gives the county clerk unilateral authority to designate a precinct as a

mailing precinct if one of two conditions is met: (1) if fewer than 20 registered voters reside in

that precinct, or (2) if fewer than 200 ballots were cast in the last general election. N.R.S.

293.213. Critically, however, “[a] county clerk may establish a mailing precinct or an absent

ballot mailing precinct that does not meet the [enumerated] requirements . . . if the county clerk

obtains prior approval from the Secretary of State.” NRS 293.213(4) (emphasis added). Put

differently, the Nevada Legislature has permitted the Secretary, working in concert with the

county clerks, to designate any precinct in the state a mailing precinct. Given that the Secretary

announced that she worked with the 17 county clerks to reach the decision to mail ballots to

voters, that condition has clearly been satisfied for the June Primary.

Plaintiffs all but ignore N.R.S. 293.213(4). Instead, their argument hinges on a labored

reading of a different statute, N.R.S. 293.205, which governs the physical boundaries of

precincts. See Complaint ¶¶ 25–26; Motion at 4. Under that statute, election officials are time-

limited as to when they may “establish,” “abolish, alter, consolidate,” or “define the boundaries”

of “election precincts.” NRS 293.205(1). Section 293.205 is inapplicable here because, on its

face, the statute is concerned merely with the physical boundaries of a precinct and not the

means of conducting an election within a precinct. See id.; see also N.R.S. 293.205(2) (“The

boundaries of each election precinct must follow visible ground features.”); N.R.S. 293.208(3)


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(“Election precincts must be composed only of contiguous territory.”).6 Defendants have not

created a new precinct, divided an existing precinct, abolished a precinct, altered a precinct,

consolidated two existing precincts, or in any other way defined the physical geography of

Nevada’s election precincts; all Defendants have done is designate preexisting precincts as

mailing precincts. Accordingly, Section 293.205 provides no basis for Plaintiffs’ claims.7

In short, Nevada’s laws governing mailing precincts allow the Secretary and county

clerks, working together, to designate any precinct in the state as a mailing precinct and to mail

ballots to voters within that precinct without solicitation. Defendants’ announced plan is

consistent with their exercise of that authority. Therefore, to the extent that each of Plaintiffs’

claims hinges on their assertion that Defendants are violating Nevada law, those claims fail, and

the motion for preliminary injunction should therefore be denied.

2. Plaintiffs cannot succeed under the Anderson-Burdick balancing test.

Plaintiffs’ claims rest on a second faulty premise: that mail-based voting leads to an

increase in voter fraud. According to Plaintiffs, Defendants’ plan to mail ballots to registered

voters, without first requiring those voters to fill out an absent ballot application, somehow

violates Plaintiffs’ right to vote under the U.S. Constitution. Even if Plaintiffs could overcome

the various hurdles outlined above, there is no likelihood of success on the merits of this claim

under the appropriate legal standard. Plaintiffs’ claim of vote dilution based on the potential for

voter fraud is legally and factually unfounded, and outweighed by the State’s compelling interest

in expanding access to mail voting in the midst of a pandemic.

6 Even if Section 293.205 were applicable to the manner of conducting elections within a precinct, it explicitly imports another statute, Section 293.208, which allows a new precinct to be created “at any time if it lies entirely within the boundaries of any existing precinct.” N.R.S. 293.208(3). Because each existing precinct has been converted to a mailing precinct without any further change, the now-designated mailing precincts share overlapping boundaries, and therefore lie entirely within, the existing precincts.

7 Plaintiffs also cite N.R.S. 293.206, which merely requires county clerks to submit maps of the physical boundaries of a precinct to the Secretary for approval.


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Courts apply the Anderson-Burdick balancing test when Plaintiffs raise claims that an

election law or policy violates their right to vote. Short v. Brown, 893 F.3d 671, 676–77 (9th Cir.

2018) (applying Anderson-Burdick to vote dilution challenge to vote by mail law); see also Ohio

State Conference of NAACP v. Husted, 768 F.3d 524, 538 (6th Cir. 2014), vacated as moot, 2014

WL 10384647 (Oct. 1, 2014) (applying Anderson-Burdick to equal protection challenge to

Secretary of State directive). Under Anderson-Burdick, a court “must first consider the character

and magnitude of the asserted injury to the rights . . . that the plaintiff seeks to vindicate.” Short,

893 F.3d at 676 (alteration in original) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789

(1983)). Then the court must weigh those interests against the state’s justification for the

challenged policy. Id. Those interests must be “sufficiently weighty to justify the limitation.” Id.

(quoting Norman v. Reed, 502 U.S. 279, 288–89 (1992)).

Plaintiffs cannot establish any burden on their right to vote under the U.S. Constitution.

While it is true that vote dilution is a viable basis for federal claims in certain contexts, such as

when laws are crafted that structurally devalue one community’s or group of people’s votes over

another’s, see, e.g., Reynolds v. Sims, 377 U.S. 533, 563–64 (1964), it is also true that “[t]he

Constitution is not an election fraud statute.” Minn. Voters Alliance v. Ritchie, 720 F.3d 1029,

1031 (8th Cir. 2013) (quoting Bodine v. Elkhart Cty. Election Bd., 788 F.2d 1270, 1271 (7th Cir.

1986)). There is simply no authority for transmogrifying the vote dilution line of cases into a

weapon that voters may use to enlist the federal judiciary to make it more difficult for millions of

their fellow citizens to vote, based entirely on unfounded and speculative fears about voter fraud.

Cf. Short, 893 F.3d at 677–78 (“Nor have the appellants cited any authority explaining how a law

that makes it easier to vote would violate the Constitution.”). To the contrary, courts have

routinely—and appropriately—rejected such efforts. See Minn. Voters Alliance, 720 F.3d at

1031–32 (rejecting challenge grounded in vote dilution theory to decision by election

administrators to allow same-day registrants to vote before verifying their voting eligibility to the

satisfaction of plaintiffs); Republican Party of Pa. v. Cortés, , 218 F. Supp. 3d 396, 406–07 (E.D.

Pa. 2016) (rejecting claim that rested on premise that voter fraud would dilute weight of the


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plaintiffs’ votes); see also Lee v. Va. Bd. of Elections, No. 3:15CV357-HEH, 2015 WL 5178993,

at *2 (E.D. Va. Sept. 4, 2015) (denying motion to intervene in challenge to voter ID laws where

proposed-intervenors’ interest was predicated on the “right not to have their votes diluted by the

fraudulent votes they allege will be cast if the Voter ID law is declared invalid”). Plaintiffs do

not cite a single case holding that a plaintiff can challenge an election law or practice on the basis

that the prospect of voter fraud will dilute their lawfully cast ballot. This Court should not be the

first.

Even if Plaintiffs could conceivably advance this legal theory to establish an undue

burden on the right to vote, Plaintiffs have not identified any evidence, and indeed none exists,

that mail-based voting is particularly susceptible to voter fraud or that mailing ballots to voters

will increase illegal voting. Voting by mail is ubiquitous in the United States, either through vote

by mail or absent ballot procedures. In federal elections, about 5 percent of the country votes by

mail ballot, and another 20 percent by absent ballot. EAVS Deep Dive: Early, Absentee and Mail

Voting, U.S. Election Assistance Comm’n (Oct. 17, 2017), https://www.eac.gov/documents/

2017/10/17/eavs-deep-dive-early-absentee-and-mail-voting-data-statutory-overview; see also

Wendy R. Weiser & Harold Ekeh, The False Narrative of Vote-by-Mail Fraud, Brennan Ctr. for

Just. (Apr. 10, 2020), https://www.brennancenter.org/our-work/analysis-opinion/false-narrative-

vote-mail-fraud. Five states conduct their elections predominantly through vote by mail, see

Weiser & Ekeh, supra, and even in Nevada, some citizens have voted by mail long before the

current public health crisis arose. See, e.g., 2016 Primary Election Turnout: In Person Voting,

Absent, and Mailing Precincts, Nev. Sec’y of State (last updated June 23, 2016),

https://www.nvsos.gov/sos/home/showdocument?id=4310 (showing that 2,910 people voted by

mail ballot in the 2016 June Primary).

Plaintiffs’ motion for a preliminary injunction does not cite a single study, or any

evidence for the matter, suggesting that vote by mail is more vulnerable to fraud than an absent

voting scheme. Nor do they identify even a single instance of fraud tied to vote by mail. In

reality, there is no correlation between vote by mail and voter fraud. See Weiser & Ekeh, supra


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(“Despite this dramatic increase in mail voting over time, fraud rates remain infinitesimally

small. None of the five states that hold their elections primarily by mail has had any voter fraud

scandals since making that change.”); Richard L. Hasen, Trump Is Wrong About the Dangers of

Absentee Ballots, Wash. Post (Apr. 9, 2020), https://www.washingtonpost.com/opinions/2020/

04/09/trump-is-wrong-about-dangers-absentee-ballots (citing database of voter fraud and

explaining that voter fraud is “extremely rare in the five states that rely primarily on vote-by-

mail.”); see also Motion to Intervene as Defendants, Ex. 6 ¶ 25 (database of voter fraud showed

only six cases in Nevada since the early 1980s). Because there is no relationship between voting

by mail and voter fraud, Nevada’s switch to a vote by mail model will not lead to an increase in

voter fraud. Because Plaintiffs are unable to establish a relationship between voting by mail and

voter fraud, Plaintiffs cannot prove that their right to vote has been, in any way, burdened.

On the other side of the ledger is Defendants’ compelling interest in protecting both the

fundamental right to vote and the health and safety of voters and elections officials in the middle

of an unprecedented pandemic. But because Plaintiffs have not shown that the challenged policy

“burdens their fundamental right to vote or in any way limits their range of choices in the voting

booth,” the state’s interest need not even be compelling; instead, rational basis review applies.

Cortés, 218 F. Supp. 3d at 408 (applying rational basis review where Plaintiffs’ “vote-dilution

theory is based on speculation that fraudulent voters may be casting ballots elsewhere in the”

state); see also Short, 893 F.3d at 679 (analyzing challenge to California’s implementation of

vote by mail in some counties under rational basis review). Under rational basis review, a

challenged policy must only be “rationally related to a legitimate governmental purpose.” Green

v. City of Tucson, 340 F.3d 891, 896 (9th Cir. 2003).

In light of the current public health crisis, Defendants’ decision to mail ballots to

registered voters is critically important to serving the State’s compelling interest in allowing

voters to vote safely from home. Because of the highly contagious coronavirus, voting at home

will be the best option for most Nevadans. The State has an interest in facilitating voting by mail

not only as a matter of public health, but also to ensure that Nevadans are not disenfranchised.


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Vote by mail has several key advantages over an absent ballot system. On the voter side,

it eliminates obstacles to participation in mail voting. Many Nevadans will be voting through the

mail for the first time in the June Primary,8 and will be unfamiliar with the obstacles they must

navigate to successfully vote in an absent ballot system. An absent ballot system requires a voter

to obtain, fill out, and submit an application, and do so in a timely manner that allows the voter

to receive her ballot with sufficient time to vote. N.R.S. 293.313. Defendants’ plans for vote by

mail eliminates these potentially deleterious steps. Vote by mail is also easier to administer for

election officials. In an absent ballot system, election officials must receive, process, track, and

respond to requests for absent ballots on an ad hoc basis. In a vote by mail system, election

officials can prepare, in bulk and at one time, mail ballots for every registered voter, and send

them out well in advance of the election.

Wisconsin’s disastrous April 7, 2020 primary illustrates the merits of Defendants’

decision to expand vote by mail. In Wisconsin, state election officials enforced the state’s

preexisting absent voting scheme. The coronavirus-inspired surge of interest in absent voting

crashed the system, and thousands of voters either never received their requested absent ballots

or received them too late. See Nick Corasaniti & Stephanie Saul, Inside Wisconsin’s Election

Disaster: Thousands of Missing or Nullified Ballots, Chi. Trib. (Apr. 10, 2020),

https://www.chicagotribune.com/politics/elections/ct-nw-nyt-wisconsin-election-problems-

20200410-rdea6424ynecjemkwwfyjqcyqq-story.html; Jeanine Santucci, US Postal Service

Investigating Issues with Absentee Ballots in Wisconsin That Went Undelivered, USA Today

(Apr. 10, 2020), https://www.usatoday.com/story/news/politics/elections/2020/04/10/usps-

investigating-undelivered-wisconsin-absentee-ballot-issues/5135563002. These failures occurred

8 For example, in the June 2016 primary, 90 percent of Nevada voters voted in person. See 2016 Primary Election Turnout, supra. In the 2018 General Election, 91 percent of Nevada voters voted in person. See 2018 General Election Turnout: In Person Early Voting, Absent, and Mailing Precincts, Nev. Sec’y of State (last updated Nov. 20, 2018), https://www.nvsos.gov/sos/home/showdocument?id=6050.


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at the voter, election administrator, and postal service levels. As a result, voters who could not

vote by mail either crowded into a few polling places or sacrificed altogether their right to vote.

See Jim Malewitz, Their Wisconsin Ballots Never Arrived. So They Risked a Pandemic. Or

Stayed Home., Wis. Watch (Apr. 7, 2020), https://www.wisconsinwatch.org/2020/04/ballots-

never-arrived-pandemic-or-stay-home.

Defendants’ efforts to avoid another Wisconsin more than justify their decision to mail

ballots to registered voters without enforcing an absent ballot system. Because the state interest

in expanding access to mail voting outweighs any burden Plaintiffs could conceivably assert on

their right to vote (and there is none), Plaintiffs’ right to vote claims are entirely unlikely to

succeed.

II. The balance of the harms weighs strongly against Plaintiffs’ requested injunction.

Enjoining Defendants’ plans for a primarily all-mail election would have a devastating

impact on Nevadans’ opportunities to participate meaningfully in the June Primary. Defendants’

decision to implement vote by mail is a necessary response to a public health crisis, one that

severely curtails the ability to travel and interact with others. Whether by necessity or choice,

many Nevadans will continue to exercise social distancing and remain sheltered in their homes

for the foreseeable future, thus necessitating the ability to vote by mail.9 Without the ability to

cast mail ballots, these voters—denied the opportunity to vote by mail and unable or unwilling to

risk voting in person—will be effectively disenfranchised.

“It is clear that abridgement of the right to vote constitutes an irreparable injury.”

Sanchez, 214 F. Supp. 3d at 976; see also, e.g., Obama for Am. v. Husted, 697 F.3d 423, 436 (6th

Cir. 2012) (“A restriction on the fundamental right to vote [] constitutes irreparable injury.”). If

9 It is therefore unsurprising that a host of other states have also chosen to increase their uses of vote by mail in response to the pandemic. See, e.g., Zach Montellaro & Laura Barrón-López, States Rush to Prepare for Huge Surge of Mail Voting, Politico (Apr. 25, 2020), https://www.politico.com/news/2020/04/25/states-mail-voting-surge-207596.


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this Court were to prevent Defendants from utilizing mail ballots for the June Primary, countless

eligible Nevadans will suffer disenfranchisement because they will be unable to vote in any other

way. Depriving a voter of their opportunity to cast a ballot is not only a significant harm—“[t]o

disenfranchise a single voter is a matter for grave concern,” Serv. Emps. Int’l Union, Local 1 v.

Husted, 906 F. Supp. 2d 745, 750 (S.D. Ohio 2012)—but an irreparable harm as well. See

League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) (“[O]nce

the election occurs, there can be no do-over and no redress.”); Fla. Democratic Party v. Scott,

215 F. Supp. 3d 1250, 1258 (N.D. Fla. 2016) (“This isn’t golf: there are no mulligans.”).

The only harm identified by Plaintiffs, by contrast, is the specter of voter fraud. But as set

forth above, supra at I.D.2., Plaintiffs are litigating against a mere apparition of alleged fraud

that vanishes under the light of even limited scrutiny. As one court has perceptively noted, “a

preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement,

which undermine rather than enhance confidence in elections.” One Wis. Inst., Inc. v. Thomsen,

198 F. Supp. 3d 896, 903 (W.D. Wis. 2016). Enjoining Defendants’ plans for vote by mail will

not prevent any harms to Plaintiffs—their supposed harms are, ultimately, imaginary—but will

indisputably disenfranchise Nevada voters who are unable, due to the pandemic and myriad other

issues, to cast a ballot in the June Primary.

III. The public interest weighs heavily against the requested injunction.

An injunction precluding Defendants’ use of mail ballots in the June Primary, and

therefore disenfranchising countless Nevada voters, will not serve the public interest. “By

definition, ‘[t]he public interest . . . favors permitting as many qualified voters to vote as

possible.’” League of Women Voters, 769 F.3d at 247 (alterations in original) (quoting Husted,

697 F.3d at 437); see also, e.g., Wash. Ass’n of Churches v. Reed, 492 F. Supp. 2d 1264, 1271

(W.D. Wash. 2006). This includes not only Intervenor-Defendant John Solomon, but all eligible

Nevadans who would risk disenfranchisement if Plaintiffs receive their requested injunctive

relief. See League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752

F.3d 755, 766 (9th Cir. 2014) (“The public interest inquiry primarily addresses impact on non-


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parties rather than parties.” (quoting Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974

(9th Cir. 2002))). By contrast, the public interest would most assuredly be ill-served if voters’

constitutional rights were violated to safeguard against nonexistence instances voter fraud. See,

e.g., Common Cause/Ga. v. Billups, 439 F. Supp. 2d 1294, 1359–60 (N.D. Ga. 2006).10

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10 This is especially true given that Nevada law already provides numerous safeguards to preserve the integrity of elections. It is, for example, already a felony in Nevada to “fraudulently [] request an absent ballot in the name of another person,” N.R.S. 293.313(4); threaten, intimidate, coerce, or exercise undue influence on any voter, N.R.S. 293.710(1)(a)–(c); impede or prevent a voter from voting, N.R.S. 293.710(1)(d); “vote[] or attempt[] to vote using the name of another person,” N.R.S. 293.775(2); or “attempt to vote more than once at the same election,” N.R.S. 293.780(1).


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CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction should be

denied.




Daniel Bravo, Esq., SBN 13078 3556 E. Russell Road, Second Floor Las Vegas, Nevada 89120 Marc E. Elias, Esq.* Henry J. Brewster, Esq.* Courtney A. Elgart, Esq.* PERKINS COIE LLP 700 Thirteenth St. NW, Suite 800 Washington, D.C. 20005-3960 Abha Khanna, Esq.* Jonathan P. Hawley, Esq.* PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, Washington 98101-3099 Attorneys for Proposed Intervenor–Defendants Nevada State Democratic Party, DNC Services Corporation/Democratic National Committee, DCCC, Priorities USA, and John Solomon *Pro hac vice applications forthcoming


Exhibit 2

Proposed Answer

Exhibit 2


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[PROPOSED] ANSWER TO VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

MARC E. ELIAS, ESQ. (D.C. Bar No. 442007) (pro hac vice forthcoming) HENRY J. BREWSTER, ESQ. (D.C. Bar No. 1033410) (pro hac vice forthcoming) COURTNEY A. ELGART, ESQ. (D.C. Bar No. 1645065) (pro hac vice forthcoming) PERKINS COIE LLP 700 Thirteenth St. NW, Suite 800 Washington, D.C. 20005-3960 Tel: (202) 654-6200 [email protected] [email protected] [email protected] ABHA KHANNA, ESQ. (Wash. Bar No. 42612) (pro hac vice forthcoming) JONATHAN P. HAWLEY, ESQ. (Cal. Bar. No. 319464) (pro hac vice forthcoming) PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, Washington 98101-3099 Tel: (206) 359-8000 [email protected] [email protected] BRADLEY SCHRAGER, ESQ. (SBN 10217) DANIEL BRAVO, ESQ. (SBN 13078) WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP 3556 E. Russell Road, Second Floor Las Vegas, Nevada 89120 Tel: (702) 341-5200 [email protected] [email protected] Attorneys for Proposed Intervenor–Defendants Nevada State Democratic Party, DNC Services Corporation/Democratic National Committee, DCCC, Priorities USA, and John Solomon



Plaintiffs,


Defendants,

Case No.: 3:20-cv-00243-MMD-WGC [PROPOSED] ANSWER TO VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


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2[PROPOSED] ANSWER TO VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

and


(Proposed) Intervenor-Defendants.

Proposed Intervenor–Defendants Nevada State Democratic Party, DNC Services

Corporation/Democratic National Committee, DCCC, Priorities USA, and John Solomon

(“Proposed Intervenors”), by and through their attorneys, submit the following Answer to

Plaintiffs’ Verified Complaint for Declaratory and Injunctive Relief (“Complaint”). Proposed

Intervenors respond to the allegations in the Complaint as follows:

1. Proposed Intervenors admit that the Nevada Secretary of State Barbara Cegavske

(the “Secretary”) intends to conduct the June 9, 2020, Nevada state and federal primary election

(the “June Primary”) under the “all-mail election” plan (the “Plan”) on the Secretary’s website,

and the Secretary’s website is the best source of the full content and context of the Plan. To the

extent Paragraph 1 does not contain the full content and context of the Secretary’s Plan,

Proposed Intervenors deny the allegations.

2. Paragraph 2 contains mere characterizations, legal contentions, and conclusions to

which no response is required. To the extent a response is required, Proposed Intervenors deny

the allegations.



the allegations.

JURISDICTION AND VENUE




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the allegations.

5. Proposed Intervenors deny that the Court has subject matter jurisdiction to hear

and resolve this present controversy.

6. Proposed Intervenors deny that venue is proper.

PARTIES

7. Proposed Intervenors are without sufficient information or knowledge with which

to form a belief as to the truth or falsity of the allegations contained in Paragraph 7.





10. Proposed Intervenors admit the allegations contained in Paragraph 10. To the

extent Paragraph 10 does not contain the full list of the Secretary’s responsibilities, Proposed

Intervenors deny the allegations.


extent Paragraph 10 does not contain the full list of the Deanna Spikula’s, Registrar of Voters in

Washoe County, Nevada (the “Washoe Registrar”), responsibilities, Proposed Intervenors deny

the allegations.

FACTUAL ALLEGATIONS

12. Proposed Intervenors admit the allegations contained in Paragraph 12.


extent Paragraph 13 does not contain the full content and context of the Secretary’s Plan,


14. Paragraph 14 contains mere characterizations, legal contentions, and conclusions

to which no response is required. To the extent Paragraph 14 does not contain the full content

and context of the Secretary’s Plan, Proposed Intervenors deny the allegations.



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to which no response is required. The Washoe Registrar’s April 10, 2020 Notice (“April 10,

2020 Notice”) is the best source of the full content and context of the April 10, 2020 Notice. To

the extent Paragraph 19 does not contain the full content and context of the April 10, 2020

Notice, Proposed Intervenors deny the allegations.



and context of the Elk County clerk’s office Plan, Proposed Intervenors deny the allegations.


to which no response is required. The Clark County clerk’s April 2, 2020 Notice (“April 2, 2020

Notice”) is the best source of the full content and context of the April 2, 2020 Notice. To the

extent Paragraph 21 does not contain the full content and context of the April 2, 2020 Notice,



to which no response is required. To the extent a response is required, Proposed Intervenors deny

the allegations.


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the allegations.



the allegations.



the allegations.



the allegations.



the allegations.



the allegations.



the allegations.



the allegations.



the allegations.


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the allegations.



the allegations.



the allegations.



the allegations.

COUNT I

36. Proposed Intervenors incorporate by reference all of its allegations in the

preceding and ensuing paragraphs as if fully set forth herein.



the allegations.



the allegations.



the allegations.



the allegations.


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the allegations.



the allegations.



the allegations.



the allegations.

COUNT II





the allegations.



the allegations.



the allegations.



the allegations.


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COUNT III





the allegations.



the allegations.



the allegations.



the allegations.



the allegations.

COUNT IV





the allegations.

58. Proposed Intervenors admit that candidates for the office of U.S. Representative

are on the ballot for the June Primary. Paragraph 58 also contains mere characterizations, legal

contentions, and conclusions to which no response is required. To the extent a response is


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required, Proposed Intervenors deny the allegations.

59. Paragraph 59 also contains mere characterizations, legal contentions, and

conclusions to which no response is required. To the extent a response is required, Proposed








COUNT V





the allegations.



the allegations.



the allegations.



the allegations.

AFFIRMATIVE DEFENSES

Proposed Intervenors set forth their affirmative defenses without assuming the burden of


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proving any fact, issue, or element of a cause of action where such burden properly belongs to

Plaintiffs. Moreover, nothing stated here is intended or shall be construed as an admission that

any particular issue or subject matter is relevant to the allegations in the complaint. Proposed

Intervenors reserves the right to amend or supplement its affirmative defenses as additional facts

concerning defenses become known.

As separate and distinct affirmative defenses, Proposed Intervenors alleges as follows:

1. This Court lacks jurisdiction to issue the requested relief under the Eleventh

Amendment to the U.S. Constitution.

2. This Court lacks jurisdiction because Plaintiffs do not have Article III standing.

Plaintiffs lack Article III standing because they have not alleged an injury in fact and their

claimed injury is not redressable by this Court.

3. Plaintiffs fail to state a claim on which relief can be granted.

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PRAYER FOR RELIEF

WHEREFORE, Proposed Intervenors respectfully requests that this Court:

A. Deny that Plaintiffs are entitled to any relief;

B. Dismiss the complaint in its entirety, with prejudice; and

C. Grant such other and further relief as the Court may deem just and proper.




Daniel Bravo, Esq., SBN 13078 3556 E. Russell Road, Second Floor Las Vegas, Nevada 89120 Marc E. Elias, Esq.* Henry J. Brewster, Esq.* Courtney A. Elgart, Esq.* PERKINS COIE LLP 700 Thirteenth St. NW, Suite 800 Washington, D.C. 20005-3960 Abha Khanna, Esq.* Jonathan P. Hawley, Esq.* PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, Washington 98101-3099 Attorneys for Proposed Intervenor–Defendants _____________ *Pro hac vice applications forthcoming


Exhibit 3

Complaint, Corona v. Cegavske, No. 20-OC-00064-1B (Nev. Dist. Ct.), filed

April 16, 2020.

Exhibit 3



































































Exhibit 4

Plaintiffs’ Emergency Motion for Preliminary Injunction and Declaratory

Relief, Corona v. Cegavske, No. 20-OC-00064-1B (Nev. Dist. Ct.), filed

April 22, 2020.

Exhibit 4


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PLAINTIFFS’ EMERGENCY MOTION FOR PRELIMINARY INJUNCTION AND DECLARATORY RELIEF

MARC E. ELIAS, ESQ. (D.C. Bar No. 442007) (pro hac vice forthcoming) HENRY J. BREWSTER, ESQ. (D.C. Bar No. 1033410) (pro hac vice forthcoming) COURTNEY A. ELGART, ESQ. (D.C. Bar No. 1645065) (pro hac vice forthcoming) PERKINS COIE LLP 700 Thirteenth St. NW, Suite 600 Washington, D.C. 20005-3960 Tel: (202) 654-6200 [email protected] [email protected] [email protected] ABHA KHANNA, ESQ. (Wash. Bar No. 42612) (pro hac vice forthcoming) JONATHAN P. HAWLEY, ESQ. (Cal. Bar. No. 319464) (pro hac vice forthcoming) PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, Washington 98101-3099 Tel: (206) 359-8000 [email protected] [email protected] BRADLEY SCHRAGER, ESQ. (SBN 10217) DANIEL BRAVO, ESQ. (SBN 13078) WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP 3556 E. Russell Road, Second Floor Las Vegas, Nevada 89120 Tel: (702) 341-5200 [email protected] [email protected] Attorneys for Plaintiffs Daniel Corona, Darin Mains, Brian Melendez, Teresa Melendez, Nevada State Democratic Party, DNC Services Corporation/Democratic National Committee, DCCC, and Priorities USA

FIRST JUDICIAL DISTRICT COURT IN AND FOR CARSON CITY, STATE OF NEVADA

DANIEL CORONA, DARIN MAINS, BRIAN MELENDEZ, TERESA MELENDEZ, NEVADA STATE DEMOCRATIC PARTY, DNC SERVICES CORPORATION/DEMOCRATIC NATIONAL COMMITTEE, DCCC, and PRIORITIES USA,

Plaintiffs,

vs. BARBARA CEGAVSKE, in her official capacity as Nevada Secretary of State, JOSEPH P. GLORIA, in his official capacity as Registrar

Case No.: 20-OC-00064-1B Dept. No.: I PLAINTIFFS’ EMERGENCY MOTION FOR PRELIMINARY INJUNCTION AND DECLARATORY RELIEF, ON ORDER SHORTENING TIME


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iiPLAINTIFFS’ EMERGENCY MOTION FOR PRELIMINARY INJUNCTION AND DECLARATORY RELIEF

of Voters for Clark County, Nevada, DEANNA SPIKULA, in her official capacity as Registrar of Voters for Washoe County, Nevada, KRISTINE JAKEMAN, in her official capacity as the Elko County Clerk, and AARON FORD, in his official capacity as the Attorney General of the State of Nevada,

Defendants,

Plaintiffs DANIEL CORONA, DARIN MAINS, BRIAN MELENDEZ, TERESA

MELENDEZ, THE NEVADA STATE DEMOCRATIC PARTY, DNC SERVICES

CORPORATION/DEMOCRATIC NATIONAL COMMITTEE, DCCC, and PRIORITIES USA,

by and through their attorneys, here submit their emergency motion for preliminary injunction

and declaratory relief, and submit concurrently their request for briefing and hearing on an order

shortening time, pursuant to FJDCR 9 and DCR 17. This motion is based upon all papers and

exhibits herein and on file in this action, the declarations made herewith, and any oral argument

the Court sees fit to allow at hearing on this matter.


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iiiPLAINTIFFS’ EMERGENCY MOTION FOR PRELIMINARY INJUNCTION AND DECLARATORY RELIEF

TABLE OF CONTENTS

INTRODUCTION ............................................................................................................................ 1�

BACKGROUND .............................................................................................................................. 3�

STANDARD OF LAW ..................................................................................................................... 5�

ARGUMENT .................................................................................................................................... 5�

I.� Plaintiffs are likely to succeed on their claim that the broad elimination of in-person voting violates the Nevada and U.S. Constitutions. ................................. 5�

A.� The drastic reduction of in-person voting locations violates the right of suffrage under the Nevada Constitution. .......................................... 5�

B.� The drastic reduction of in-person voting locations unconstitutionally burdens the right to equal protection under the Nevada and U.S. Constitutions. .................................................................. 10�

II.� Plaintiffs are likely to succeed on their claims that Defendants are required to mail ballots to all registered voters. .................................................................... 12�

A.� Nevada law requires Defendants to mail ballots to all registered voters. .......................................................................................................... 12�

B.� The exclusion of inactive voters violates of the right of suffrage under the Nevada Constitution. ................................................................... 13�

C.� The disparate treatment of similarly situated, qualified electors violates the right to equal protection under the Nevada and U.S. Constitutions. .............................................................................................. 15�

III.� Plaintiffs are likely to succeed in challenging the Voter Assistance Ban. .............. 16�

A.� The Ban is superseded by the Voters’ Bill of Rights. ................................. 16�

B.� The Ban violates the right of suffrage under the Nevada Constitution. ................................................................................................ 18�

C.� The Ban violates due process. ..................................................................... 19�

D.� The Ban violates the right to take concerted action guaranteed by Article 1, Section 10 of the Nevada Constitution. ...................................... 21�

IV.� Plaintiffs are likely to succeed on the merits of their challenges to the Ballot Rejection Rules. ........................................................................................... 21�

A.� The Ballot Rejection Rules ......................................................................... 22�


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ivPLAINTIFFS’ EMERGENCY MOTION FOR PRELIMINARY INJUNCTION AND DECLARATORY RELIEF

B.� The Ballot Rejection Rules will arbitrarily disenfranchise Nevadans who have properly cast ballots. .................................................. 22�

C.� The Ballot Rejection Rules violate of the right of suffrage under the Nevada Constitution. ............................................................................. 29�

D.� The Ballot Rejection Rules violate due process. ........................................ 30�

V.� Plaintiffs are likely to succeed on their claim that Nevada Administrative Code § 293.217(1) violates N.R.S. 293.317. .......................................................... 32�

VI.� Absent a preliminary injunction, Plaintiffs will suffer irreparable injury. ............. 32�

VII.� The balance of harms favors issuing a preliminary injunction. .............................. 33�

VIII.� The issuance of a preliminary injunction is in the public interest. ......................... 34�

CONCLUSION ............................................................................................................................... 35�


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1PLAINTIFFS’ EMERGENCY MOTION FOR PRELIMINARY INJUNCTION AND DECLARATORY RELIEF

INTRODUCTION

The United States is in the throes of an unprecedented public health crisis, with a highly

infections coronavirus spreading rapidly throughout the country. As of the date of this filing,

Nevada has 3,937 reported cases of the novel coronavirus, including 163 deaths, and that number

is growing by the day. The Governor has issued a stay at home order requiring all Nevadans to

stay in their residences and closing all non-essential business until at least April 30, 2020, though

these restrictions (or some version of them) are highly likely to be in place for far longer.

As the Nevada Supreme Court explained more than a century ago, “[t]he right of voting,

and, of course, of having the vote counted, is one of most transcendent importance,—the highest

under our form of government.” Buckner v. Lynip, 22 Nev. 426, 438, 41 P. 762, 764 (1895). That

right is not any less important in the wake of the current pandemic. As in other states with

impending elections, this unprecedented and sudden crisis has required Nevada to reevaluate the

manner by which the State’s upcoming election will be conducted. Toward that end, Secretary of

State Barbara Cegavske (the “Secretary”) has announced her intention to hold an “all-mail

election” for the June 9 primary (the “June Primary”).

Plaintiffs agree that it is necessary for Nevada to dramatically expand mail voting in light

of the pandemic, but Nevada law—as well as both the state and federal constitutions—require

that certain safeguards be put in place to ensure that the right to vote remains accessible to all

Nevadans. Here, the Secretary’s designation of the June Primary as an all-mail election has both

introduced and exacerbated severe burdens on Nevadans’ fundamental right to vote, in five

different respects.

First, the Secretary has directed county clerks and registrars to drastically limit

availability of in-person voting opportunities, requiring only one in-person polling location per

county, regardless of county population, demographics, or geographic size. This broad, one-size-

fits-all approach is contrary to the Nevada and U.S. Constitutions, and ignores the reality that

Wisconsin confronted when it took similar steps in its primary two weeks ago—that expansion

of vote by mail cannot and will not eliminate the need for in-person voting for thousands of


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voters, who will have to risk their health and safety to vote. In Nevada, where 87 percent of the

state’s registered voters will be required to share just two polling locations, the result will be

broad disenfranchisement and a far more elevated risk to the voters who do turn out to vote.

Second, while the Secretary has publicly assured voters that they will be mailed ballots

unsolicited, Defendants have repeatedly confirmed that they intend to send ballots only to voters

classified as “active.” But Nevada law requires that, in precincts designated as mailing precincts,

Defendants must send ballots to all registered voters—active and inactive alike—regardless of

whether the voter requests one. History proves that “inactive” voters—voters who failed to return

a postcard to the county registrar after a piece of their mail was auto-forwarded from their

registration address—can and do participate in elections. And the Secretary may not, consistent

with Nevada law, exclude this sizeable subset of voters from the state’s vote by mail response to

the pandemic.

Third, the shift to an all-mail election exacerbates the already formidable constitutional

burdens imposed by Nevada’s Voter Assistance Ban (or the “Ban”), which criminalizes efforts to

assist voters in returning both absent ballots and mailing ballots (collectively “mail ballots”).

While constitutionally suspect under any circumstance, the burdens that the Ban will impose on

voters in the present pandemic cannot possibly be outweighed by the State’s meager

justifications for it. This is true not only for the large number of Nevada voters who do not

generally have access to reliable mail service, but for countless others, as the pandemic continues

to tax a struggling U.S. Postal Service and limits voters’ ability to interact with family members.

The Ban cannot be constitutionally applied in this context.

Fourth, the shift to an all-mail election also exacerbates the serious threat of

disenfranchisement posed by Nevada’s Ballot Rejection Rules, whereby election officials are

given broad discretion to reject mail ballots that either lack a signature on the return envelope, or

where they “question” the authenticity of the signature. As thousands more Nevadans vote by

mail than ever before, the Ballot Rejection Rules will disenfranchise large swaths of eligible

voters based on little more than a technical error or the arbitrary and untrained discretion of local


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election officials.

Fifth, the Secretary’s regulations fail to comply with the Nevada Legislature’s 2019

amendment to the ballot return laws, which allows all mail ballots postmarkedʊnot just

receivedʊby election day to be counted. As Nevada prepares for the all-mail June Primary, it is

critical that the Secretary comply with this statute to ensure that properly cast ballots are counted.

Plaintiffs sought assurances from the Secretary that the safeguards necessary to protect

the right to vote would be put in place for the June Primary, but the Secretary concluded she

could not or would not implement them. Thus, Plaintiffs now seek urgent relief from this Court,

to protect Nevada’s voters, and avoid expansive—and avoidable—disenfranchisement. Plaintiffs

request a preliminary injunction (1) requiring Defendants to expand the number of polling

locations in the June Primary to reflect the population and geographic size of each county;

(2) requiring Defendants to mail ballots to all registered voters; (3) enjoining enforcement of the

Voter Assistance Ban; (4) enjoining enforcement of the Ballot Rejection Rules; and (5) enjoining

enforcement of Administrative Code § 293.217(1).

BACKGROUND

On March 24, 2020, citing the “many uncertainties surrounding the COVID-19

pandemic,” the Secretary announced plans to “conduct an all-mail election” for the June

Primary. Ex. 12. The announcement stated that “at least one in-person polling location will be

available in each county,” indicating that virtually all other in-person polling locations—

typically available in every precinct—will be closed during the early voting period and on

election day. Id. Citing the limited availability of in-person polling locations, the Secretary

encouraged Nevadans “to register to vote now and not rely on the same-day registration

process.” Id. She assured voters that “[n]o action or steps . . . will be required by individual

voters in order to receive a ballot by mail,” stating that “[a]ll active registered voters in Nevada

will be mailed” a ballot. Id. (emphasis added). Over the last week, Nevada counties have begun

circulating information regarding how they intend to implement the Secretary’s direction.

Clark County. On April 13, Clark County announced that voters will receive a mail-in


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ballot on or before May 18, and may personally return them through the U.S. Postal Service or

by dropping them off in person at designated locations around the county. Ex. 13. Clark County

voters who vote in person (on election day or during the two-week early voting period) will all

have to vote at a single voting center located in North Las Vegas. Id.

Washoe County. According to the Washoe County Registrar’s website, voters will

receive a mail-in ballot that they can personally return by mail or drop off at the Registrar’s

Office in Reno. Ex. 14. The Registrar’s Office will also serve as the only in-person voting

location for Washoe County during early voting and on election day. Id.

Elko County. The Elko County Clerk’s Office has stated it will mail ballots to “[a]ll

active registered voters . . . during the first part of May 2020.” Ex. 15. While Elko County

initially planned on seven geographically diverse polling locations, see Ex. 16, it now intends to

maintain only one—the County Library during early voting and the County Clerk’s Office on

election day—which will be open for “mail-in ballot deliveries, replacement ballot requests

or same-day registration ONLY.” Ex. 17.

On April 10, Plaintiff Nevada State Democratic Party (the “Party”) sent a letter outlining

its concerns to the Secretary and every county clerk or registrar of voters in the state. See Ex. 19.

The letter stated the same positions that provide the basis for Plaintiffs’ complaint and this

motion for a preliminary injunction, and expressed the Party’s hope to “work collaboratively”

with the Secretary to address its concerns. Id. The Secretary and the county clerks never formally

responded to the letter, but, through the media, the Secretary rejected the Party’s requests. See

Ex. 20, Attach. A.

As a result, Plaintiffs—including the Party, DNC Services Corporation/Democratic

National Committee, DCCC, and Priorities USA (collectively, the “Organizational Plaintiffs”),

as well as Nevada voters Daniel Corona, Darin Mains, Brian Melendez, and Teresa Melendez

(collectively, the “Voter Plaintiffs”)—now bring this motion for a preliminary injunction to

ensure that the June Primary be conducted consistent with the requirements of state and federal

law.


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STANDARD OF LAW

Nevada Revised Statutes (“N.R.S.”) 33.010 “authorizes an injunction when it appears

from the complaint that the plaintiff is entitled to the relief requested and at least part of the relief

consists of restraining the challenged act.” Univ. & Cmty. Coll. Sys. v. Nevadans for Sound

Gov’t, 120 Nev. 712, 721, 100 P.3d 179, 187 (2004) (per curiam). Plaintiffs must show “(1) a

likelihood of success on the merits; and (2) a reasonable probability that the non-moving party’s

conduct, if allowed to continue, will cause irreparable harm for which compensatory damage is

an inadequate remedy.” Id. (quoting S.O.C., Inc. v. Mirage Casino-Hotel, 117 Nev. 403, 408, 23

P.3d 243, 246 (2001)). “In considering preliminary injunctions, courts also weigh the potential

hardships to the relative parties and others, and the public interest.” Id. (citing Clark Cty. Sch.

Dist. v. Buchanan, 112 Nev. 1146, 1150, 924 P.2d 716, 719 (1996)).

ARGUMENT

I. Plaintiffs are likely to succeed on their claim that the broad elimination of in-person voting violates the Nevada and U.S. Constitutions.

Plaintiffs support Defendants’ decision to expand access to vote by mail to Nevada

voters. This decision is not only the right one, but constitutionally required in the face of the

present pandemic. But expanding access to vote by mail does not eliminate the need to provide

in-person voting for thousands of Nevada voters, many of whom will be unable to cast a mail

ballot. Defendants’ elimination of all but one in-person polling location per county, regardless of

county population or size, will impose severe burdens on thousands of Nevada voters, who will

have to either bear the significant burdens associated with attempting to vote in person at a

single, overcrowded polling location in the middle of a dangerous pandemic, or forego their

fundamental right to vote altogether. The broad elimination of in-person voting thus violates

fundamental rights under both the Nevada and U.S. Constitutions.

A. The drastic reduction of in-person voting locations violates the right of suffrage under the Nevada Constitution.

Defendants’ plan to eliminate all but one polling location in each county, regardless of


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population or geographic size, violates the right of suffrage enshrined in the Nevada Constitution

because it will, in practice, disenfranchise many voters for whom in-person voting is the only

viable option, to the particular disadvantage of voters in large and highly-populated counties.

The Nevada Constitution provides broad protection of the right to vote. See Nev. Const.

art. 2, § 1 (“All [qualified voters] shall be entitled to vote for all officers that now or hereafter

may be elected by the people, and upon all questions submitted to the electors at such election.”);

cf. State ex rel. McMillan v. Sadler, 25 Nev. 131, 170, 58 P. 284, 288 (1899) (“The right to vote

for all officers, from governor to and including all assemblymen and state senators [in Article 2,

Section 1] could not be given in stronger or broader language.”). Pursuant to this right, Nevada

election laws must “be reasonable, uniform, and impartial.” State ex rel. Boyle v. State Bd. of

Exam’rs, 21 Nev. 67, 71, 24 P. 614, 616 (1890); State v. Findley, 20 Nev. 198, 202, 19 P. 241,

243 (1888).

As the Nevada Supreme Court explained more than a century ago, “[t]he right of voting,

and, of course, of having the vote counted, is one of most transcendent importance,—the highest

under our form of government.” Buckner, 22 Nev. at 438. Accordingly, restrictions on the right

to vote, or the right to have one’s vote counted, must be strictly scrutinized, and they cannot

stand if they result in any qualified voter’s disenfranchisement. See id. (“That one entitled to vote

shall not be deprived of his privilege by action of the authorities is a fundamental principle.”

(quoting Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the

Legislative Power of the States of the American Union 680 (2d ed. 1871)); Davies v. McKeeby, 5

Nev. 369, 371 (1870) (“The form of the law by which an individual is deprived of a

constitutional right is immaterial. The test of its constitutionality is, whether it operates to

deprive any person of a right guaranteed or given to him by the Constitution. If it does, it is a

nullity—whatever may be its form.” (emphasis added)); accord Simmons v. McDaniel, 680 P.2d

977, 980 (N.M. 1984) (“[W]e are [] committed to examine ‘most carefully, and rather

unsympathetically’ any challenge to a voter’s right to participate in an election, and will not deny

that right ‘absent bad faith, fraud or reasonable opportunity for fraud.’” (quoting Valdez v.


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Herrera, 145 P.2d 864, 869 (N.M. 1944))); see generally Joshua A. Douglas, The Right to Vote

Under State Constitutions, 67 Vand. L. Rev. 89, 110–29 (2014) (explaining states with an

enumerated right to vote should and do apply closer scrutiny to claims arising under their own

constitutions than under the federal constitution, which lacks an enumerated right to vote).

The broad and undifferentiated elimination of in-person voting is unconstitutional for a

very simple reason: it will effectively disenfranchise qualified voters for whom in-person voting

is the only viable option. Some Nevadans, for instance, are ineligible to vote by mail under

current Nevada law, including all “same day registrants,” which for the June Primary means

anyone who registers to vote between May 22 and June 9. Others who are eligible to vote by

mail will not receive their ballots through no fault of their own. See, e.g., Ex. 1 ¶¶ 13–14; Ex. 2

¶¶ 7–9; Ex. 3 ¶¶ 6, 9–10. As the postal system attempts to deliver an unprecedented number of

ballots from county elections officials to voters, and then back again—an already struggling

system will be under increasing pressure, causing delays that will result in some number of

ballots that are not received by voters in time. See, e.g., Ex. 20, Attachs. B–C.

The novel coronavirus outbreak has also exacerbated factors that will make it difficult for

some mailed ballots to reach their intended recipients. Rates of unemployment have skyrocketed,

including in Nevada. See, e.g., Ex. 20, Attach. D; id., Attach. E (Nevada has experienced second

highest increase in unemployment in the country). Combined with Nevada’s traditionally high

rate of migration, this rising unemployment will lead to increased transience and dislocation,

making it exponentially harder for many to receive ballots mailed to their addresses on file. This

is especially true of younger voters with less permanent residences, including students like

Plaintiff Darin Mains who have been forced to leave their on-campus housing. See Ex. ¶¶ 7–8.

Among Nevada’s significant Native and rural populations, many voters do not receive

personal mail delivery services. Ex. 10 ¶¶ 13–15. Instead, they must travel to post offices miles

away from where they live to pick up and drop off mail, which is especially difficult for those

without access to cars or valid drivers’ licenses. Id. ¶¶ 13–15, 19. Many are unable to visit post

offices with regularity. It is particularly difficult for rural voters to pick up ballots at a post office


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a few weeks before an election and then drop them off shortly thereafter to meet the appropriate

deadlines. Id. Voting in person, if available and accessible, will mean just one trip outside their

homes during the pandemic as opposed to two or more trips to vote by mail.

Those voters who must vote in person will face numerous unnecessary obstacles as a

result of the elimination of all but one polling location per county. For some, the commute alone

will be daunting, if not insurmountable. Ex. 11 ¶¶ 11, 19. Clark County, for instance, spans

nearly 8,000 square miles, such that a resident of Laughlin would have to drive more than 100

miles each way to reach the polling place in North Las Vegas. Compl. ¶ 99; see also Ex. 11 ¶¶

11–12; Ex. 20, Attach. F. Once there, Clark County voters will be sharing the single polling

place with a multitude of other voters. Clark County is home to more than 1.1 million registered

voters, Ex. 20, Attach. G, and in the past two elections, more than 90 percent of voters who voted

in Clark County did so in person, either during early voting or on election day. See, e.g., id.,

Attach. H.

As the nation witnessed during the Wisconsin primary earlier this month, the result of

switching quickly to a vote by mail system, while simultaneously closing all but a handful of

polling locations, are predictably devastating: lines stretch around the block and last for hours;

numerous people pack into small spaces without the ability to properly socially distance; and poll

workers are exposed to too many other people. See Compl. ¶¶ 51–56; Ex. 20, Attach. I (“In

Milwaukee—where the number of polling stations was reduced from 180 to only five—voters

tried to exercise proper social distancing as they waited, in some cases, for more than two

hours.”); Ex. 20, Attach. J (“So voters faced a grim choice—go to a small number of crowded

polling places and risk infection or give up their right to vote. Thousands went to the polls in

scenes that horrified public health experts around the nation.”). Many voters were unable to

overcome these obstacles to cast a ballot. See, e.g., Ex. 20, Attach. K (describing story of a voter

who, because of poor health, was not able to wait in line and was disenfranchised as a result); id.,

Attach. L (interviewing voters who did not vote in the Wisconsin primary because they were not

able to vote by mail).


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Defendants’ decision to allocate polling locations based on county lines, with one polling

location per county, will not have a “uniform” impact on voters; instead, the burden created by

this policy, and its disenfranchising impact, will fall most heavily on voters from highly

populated and geographically large counties. See Boyle, 21 Nev. at 71 (right of suffrage requires

that election laws “be reasonable, uniform, and impartial”). The concentration of registered

voters varies significantly across counties.

County Registered Voters

Carson City 37,033

Churchill County 15,546

Clark County 1,326,277

Douglas County 41,047

Elko County 28,524

Esmeralda County 569

Eureka County 1,089

Humboldt County 9,817

Lander County 3,164

Lincoln County 2,982

Lyon County 40,211

Mineral County 2,949

Nye County 34,033

Pershing County 2,940

Storey County 3,486

Washoe County 314,362

White Pine County 5,442

Ex. 20, Attach. M. Thus, Clark County’s 1,326,277 voters will be served by only one location,

while Esmeralda County’s single polling location will service only 569 registered voters. Indeed,

Clark and Washoe Counties alone account for more than 87 percent of registered voters in

Nevada, all of whom will be forced to share just two polling locations.


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The geographic spread of counties is similarly disparate: While Plaintiff Daniel Corona,

for instance, must travel over 100 miles one way from his home in West Wendover to Elko to

vote in person, Ex. 1 ¶¶ 10–11, a voter in Carson City will have to travel no more than 20 miles.

Given these significant disparities, county lines are not a reasonable or impartial basis by which

to allocate polling locations.

While voting by mail will be the best option for most Nevada voters in June, Defendants

cannot effectively deny voters the opportunity to vote in person, safely at a reasonably accessible

location. As a direct result of Defendants’ actions, voters from Nevada’s most populous and

geographically expansive counties who must vote in person will have to either overcome the

severe burdens imposed by traveling to and packing into their county’s single polling location or

forego their right to vote altogether. Because the drastic reduction of in-person voting will

“deprive” thousands of voters the right to vote “provided . . . by the Constitution,” “it is a

nullity” under Article 2, Section 1 of the Nevada Constitution. Davies, 5 Nev. at 371–72.

B. The drastic reduction of in-person voting locations unconstitutionally burdens the right to equal protection under the Nevada and U.S. Constitutions.

In addition to violating the express right of suffrage under the Nevada Constitution,

Defendants’ closure of all but one polling location per county also violates both the state and

federal constitutions’ equal protection guarantees. See U.S. Const. amend. XIV (“No state

shall . . . deny to any person within its jurisdiction the equal protection of the laws.”); Nev.

Const. art. IV, § 21 (“[A]ll laws shall be general and of uniform operation throughout the

State.”). Nevada courts employ the Anderson-Burdick framework to analyze claims that election

laws create barriers to voting that violate equal protection. See Nevada Judges Ass’n v. Lau, 112

Nev. 51, 54, 910 P.2d 898, 900 (1996); see also Armijo v. State, 111 Nev. 1303, 1304, 904 P.2d

1028, 1029 (1995) (per curiam) (Nevada courts “look to federal precedent for guidance” for

equal protection claims); Obama for Am. v. Husted (OFA), 697 F.3d 423, 430 (6th Cir. 2012)

(“[W]hen a state regulation . . . treat[s] voters differently in a way that burdens the fundamental

right to vote, the Anderson-Burdick standard applies.”). Thus, a court considers “(1) the nature of


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the asserted injury to the protected rights; (2) the interests put forward by the state as justification

for that injury; and (3) the necessity for imposing the burden on the petitioners’ rights rather than

some less restrictive alternative.” Lau, 112 Nev. at 54–55, 910 P.2d at 900. The scrutiny applied

depends on the “character and magnitude of the asserted injury to” First and Fourteenth

Amendment rights. Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).

The severe burdens imposed on voters as a result of Defendants’ decision to close all but

one polling location per county cannot be justified by the state’s interests under the

circumstances. As described above, Defendants’ actions will severely burden those voters who

must vote in person for the June Primary, by increasing their exposure to other voters in

overcrowded polling locations, requiring them to travel long distances to reach their polling

locations, or both. Cf. Democratic Nat’l Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL

1638374, at *13 (W.D. Wis. Apr. 2, 2020) (holding decision of going forward with recent

primary such that voters had to choose to “literally risk[] their health and lives in order to cast a

vote” constituted a “severe burden[]” on right to vote), judgment stayed on other grounds,

Republican Nat’l Comm. v. Democratic Nat’l Comm., No. 19A1016, 2020 WL 1672702, at *1

(U.S. Apr. 6, 2020). While some voters will have the option to cast a ballot close to home and in

sparsely-populated centers, others will have to travel substantially farther and stand in long lines

in large crowds in the hopes of exercising their right to vote. See supra at I.A.

Defendants can advance no state interest to justify these severe burdens. Maintaining the

health and safety of the electorate militates in favor of more polling locations in highly populated

counties and cannot justify Defendants’ decision to open only one, no matter the county’s size or

population. Larger counties require additional in-person voting sites to enable voters to vote

efficiently while maintaining recommended social distancing. The same holds true for the safety

of poll workers; operating more polling locations in places like Clark and Washoe Counties will

decrease the number of voters to whom poll workers are ultimately exposed.

Under the Anderson-Burdick balancing test, the magnitude of the injury on those voters

who must vote in person, and even more so on those who must travel long distances and wait


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alongside large crowds to do so, outweighs any purported state interest in closing polling

locations. See OFA, 697 F.3d at 434 (holding state could not justify electoral burdens “placed on

some but not all Ohio voters”). As a result, Defendants’ policy violates Plaintiffs’ rights to equal

protection in the exercise of the franchise under the Nevada and U.S. Constitutions.

II. Plaintiffs are likely to succeed on their claims that Defendants are required to mail ballots to all registered voters.

Defendants plan to mail ballots only to “‘active’ registered voters,” not all registered

voters. See Exs. 12, 15. Critically, “inactive” voters are still duly registered voters who canʊand

regularly doʊvote in Nevada elections. A voter becomes labeled “inactive” simply by failing to

return a postcard to the registrar within 30 days of receipt after a piece of their mail was auto-

forwarded from their registration address. N.R.S. 293.530(c), (g). Only when an “inactive” voter

fails to vote in the second general election after not returning the card is she purged from the

voter rolls. N.R.S. 293.530(1)(c)(4).

Defendants’ decision to mail ballots only to active voters squarely contradicts Nevada

law governing all-mail elections. It also violates the requirement under the Nevada Constitution

that election laws be “reasonable, uniform, and impartial,” Boyle, 21 Nev. at 71, and places an

undue burden on the right to vote on equal terms under the Nevada and U.S. Constitutions.

A. Nevada law requires Defendants to mail ballots to all registered voters.

The decision to mail ballots to only a subset of qualified voters exceeds Defendants’

statutory authority under Nevada law. Defendants’ authority to hold an all-mail election arises

from the state’s laws governing mailing precincts. Mailing precincts are, unsurprisingly,

precincts that vote predominantly by mail. See N.R.S. 293.343–293.355. While Nevada law

contemplates that only smaller precincts with few voters will be deemed mailing precincts, see

N.R.S. 293.213(1), (3), county clerks are permitted to otherwise establish mailing precincts with

the prior approval of the Secretary, N.R.S. 293.213(4).

The Secretary and the county clerks have invoked this authority to set mailing precincts.

See Ex. 12 (“We are working with our 17 county election officials to implement the changes


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necessary to successfully administer this election.”); see also Exs. 13–15, 17. Having done so,

they must abide by N.R.S. 293.345, which unequivocally requires that a ballot be mailed to all

registered voters—not just those classified as “active.” See N.R.S. 293.345 (“Before 5 p.m. on

the last business day preceding the first day of the period for early voting for any primary

election or general election, the county clerk shall cause to be mailed to each registered voter in

each mailing precinct and in each absent ballot mailing precinct an official mailing ballot . . .”

(emphasis added)).

Nevada law makes clear that inactive voters are registered voters, see N.R.S. 293.530;

Nev. Admin. Code § 293.454(3)(a) (“A person whose registration is classified as ‘active,’ ‘active

pending’ or ‘inactive’ is eligible to vote.” (emphasis added)), and Defendants must treat them as

such. Cf. State v. Salge, 1 Nev. 455, 458 (1865) (“All persons who were qualified voters under

the Constitution would certainly continue to be so until they became disqualified by a failure to

comply with the requirements of the registry law.”). In the context of mailing precincts, this

means that Defendants are required to mail ballots to registered voters with “inactive” status.

B. The exclusion of inactive voters violates of the right of suffrage under the Nevada Constitution.

Because Defendants’ decision not to send mail ballots to inactive voters expressly

violates the governing statute, the Court need not consider Plaintiffs’ arguments as to its

constitutionality. See White v. Beacon Journal Publ’g Co., No. 5:09 CV 2193, 2010 WL

1948290, at *8 n.16 (N.D. Ohio May 13, 2010); cf. Barnett v. State, 96 Nev. 753, 754, 616 P.2d

1107, 1108 (1980). But the right of suffrage under the Nevada Constitution provides an

independent ground to enjoin Defendants’ selective application of the all-mail June Primary to

active voters only. Buckner, 22 Nev. at 438 (“That one entitled to vote shall not be deprived of

his privilege by action of the authorities is a fundamental principle.” (quoting Cooley, supra, at

680)). As discussed above, this Court must closely scrutinize Defendants’ exclusionary policy

because it erects a barrier to voting for qualified voters. See supra at I.A.

Excluding inactive voters from the universe of voters to whom ballots will automatically


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be sent will almost certainly mean that many will not be able to vote at all. Most voters do not

know that they have been labeled “inactive.” See Ex. 8; Ex. 9. Inactive voters are likely to expect

to receive a ballot in the mail, unaware that they must take steps to proactively request one, only

realizing too late that it will not be arriving. Such voters will have no option but to vote in

person, which for many will mean foregoing the right to vote altogether, particularly in light of

Defendants’ decision to severely limit access to in-person voting opportunities. See supra at I.A.

Make no mistake: inactive voters vote. In Clark County alone, more than 43,000 voters

classified as inactive showed up to the polls and cast ballots in the 2016 and 2018 primary and

general elections.

Inactive�Voters�Who�Voted�in�Clark�County�Election Number

2016 Primary 1,3732016 General 24,4362018 Primary 2,8932018 General 14,440Total 43,142

Ex. 19, Attach. D. And the Secretary’s decision has the potential to impact substantial numbers

of voters. Indeed, according to the Secretary’s own data, there were 250,195 inactive voters as of

March 2020. See Ex. 20, Attach. NError! Hyperlink reference not valid..

Defendants’ exclusionary policy cannot withstand constitutional scrutiny for at least three

reasons. First, by treating the two categories of qualified voters differently, the policy, on its

face, violates the constitutional principle that election laws must be “reasonable, uniform, and

impartial.” Findley, 20 Nev. at 202; see also Boyle, 21 Nev. at 71. Second, by refusing to treat

inactive voters as registered voters even though they meet the qualifications for voting and have

complied with the registration laws, Defendants have impermissibly erected an additional

requirement to vote not found in the Nevada Constitution or state laws. Defendants may not

lawfully set the standards for testing an elector’s qualification to vote, see Boyle, 21 Nev. at 69,

or impose additional qualifications on voters, see Davies, 5 Nev. at 373–74; Clayton v. Harris, 7

Nev. 64, 67 (1871). Third, Defendants’ actions, which have the effect of making it more difficult


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to vote, are not “calculated to facilitate and secure,” but instead “subvert or impede, the exercise

of the right to vote.” Boyle, 21 Nev. at 71. For all of these reasons, Plaintiffs are also highly

likely to succeed on their claims that Defendants’ actions are unconstitutional.

C. The disparate treatment of similarly situated, qualified electors violates the right to equal protection under the Nevada and U.S. Constitutions.

Defendants’ decision to send ballots only to active voters, and not to inactive voters, also

violates the equal protection guarantees of the Nevada and U.S. Constitutions. See U.S. Const.

amend. XIV; Nev. Const. art. IV, § 21; see also supra at I.B. (Anderson-Burdick applies to equal

protection claims regarding right to vote).

“Having once granted the right to vote on equal terms, the State may not, by later

arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore,

531 U.S. 98, 104–05 (2000); see also Black v. McGuffage, 209 F. Supp. 2d 889, 899 (N.D. Ill.

2002) (where voters in “different counties have significantly different probabilities of having

their votes counted, solely because of the nature of the system,” the “system does not afford the

‘equal dignity owed to each voter’” (quoting Bush, 531 U.S. at 104)).1 Defendants’ decision to

send ballots only to active voters makes an arbitrary distinction among Nevada’s registered

voters that offends these constitutional principles of equal protection. See Soltysik v. Padilla, 910

F.3d 438, 446 (9th Cir. 2018) (finding burden that “falls entirely” on one category of candidates

“‘serious enough’ to warrant more exacting review” (quoting Dudum v. Arntz, 640 F.3d 1098,

1114 n.27 (9th Cir. 2011))). The discriminatory character of Defendants’ actions, coupled with

the high likelihood that they will disenfranchise many inactive voters, warrants heightened

scrutiny under Anderson-Burdick. See Jacobson v. Lee, 411 F. Supp. 3d 1249, 1282 (N.D. Fla.

2019) (finding Florida statute that “is not a neutral, nondiscriminatory restriction on Plaintiffs’

1 Nevada has specifically adopted this fundamental principle as part of the state’s Voters’ Bill of Rights. See N.R.S. 293.2546 (providing voters should “have nondiscriminatory equal access to the elections system,” and “each voter has the right . . . [t]o receive and cast a ballot”).


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voting rights” triggers heightened scrutiny), appeal docketed, No. 19-14621 (11th Cir. Nov. 20,

2019).

But Defendants cannot justify their arbitrary distinction among voters under any standard

of review. Not only are the added costs or administrative burdens associated with mailing ballots

to inactive voters marginal in the context of an all-mail election, they cannot justify the State’s

disparate treatment. See Ohio State Conference of N.A.A.C.P. v. Husted, 768 F.3d 524, 548 (6th

Cir. 2014) (affirming court’s finding administrative costs did not justify burdening right to vote),

vacated on other grounds, No. 14-3877, 2014 WL 10384647 (6th Cir. Oct. 1, 2014). Indeed,

Defendants can identify no state interest in burdening one group of voters where Nevada law

expressly requires that all voters receive a mailed ballot. See supra at II.A.

Thus, from any angle, Defendants’ discriminatory policy fails to pass constitutional

muster and should be enjoined.

III. Plaintiffs are likely to succeed in challenging the Voter Assistance Ban.

The upcoming all-mail election throws into sharp relief the burdens imposed by the Voter

Assistance Ban, which makes it a felony—punishable by a prison term of up to four years and a

fine of $5,000—for anyone other than a voter’s family members to help return a voted mail

ballot to election officials. See N.R.S. 293.330(4) (absent ballots); N.R.S. 293.353(4) (mailing

ballots); see also N.R.S. 193.130(2)(e). The Ban thus severely limits the ability of voters to

request, and effectively prohibits organizations from providing, assistance in delivering a voter’s

completed voted ballot. This poses a significant hurdle to vote by mail for countless voters,

because Nevada law otherwise requires mail ballots to be returned by mail or hand delivery to

the county clerk. See N.R.S. 293.317, 293.353(1)–(2)(a). While the Ban fails review under any

circumstance, the hardships it imposes in the context of the unprecedented and fast-approaching

state-wide all-mail election warrant immediate injunctive relief.

A. The Ban is superseded by the Voters’ Bill of Rights.

The Nevada Voters’ Bill of Rights guarantees to every qualified voter 11 enumerated

rights. See N.R.S. 293.2546. The Legislature first enacted the Voters’ Bill of Rights in 2003 and


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last amended it in 2019, see 2019 Nev. Laws ch. 619, § 24, and in 2017 and 2019, voted to

enshrine these rights in the Nevada Constitution, subject to approval by the people in the

November 2020 election, see Ex. 20, Attach. O. The Voter Assistance Ban, which was enacted

for absent ballots in 1993 and applied to mailing ballots in 2007, see 1993 Nev. Laws ch. 523,

§ 52; 2007 Nev. Laws ch. 314, § 6, cannot be reconciled with at least one of the rights

guaranteed by the Voters’ Bill of Rights—specifically, the right “[t]o request assistance in

voting, if necessary.” N.R.S. 293.2546(6).

Not every Nevadan has access to mail at their residence. Many Native voters living on

reservations have to travel far distances to get to the post office. See Ex. 10 ¶¶ 13–15. Similarly,

in West Wendover, where Plaintiff Daniel Corona serves as mayor, U.S. Postal Service home

delivery is not available to the town’s 4000-plus residents. See Ex. 1 ¶ 14. In these communities,

voters with mobility issues, or who lack reliable access to private transportation, all require

assistance in dropping off ballots to vote. Ex. 10 ¶¶ 21–24. If those voters do not live with or

close to family members, they will effectively be prevented from voting by mail.

The current public health crisis has only made matters worse. To give just one example,

the novel coronavirus outbreak has dramatically impacted Nevada seniors who live in assisted

living facilities. See, e.g., Ex. 20, Attach. P. As these facilities take the precautions necessary to

protect their residents, it will become more difficult for family members even to visit, let alone

provide assistance returning mail ballots.2 Many other Nevadans have decided or are required to

shelter at home, away from relatives outside their households, to protect their health and the

2 The Ban as applied to absent ballots includes an exception for “[a]ny registered voter who is unable to go to the polls . . . [b]ecause of an illness or disability resulting in confinement in a hospital, sanatorium, dwelling or nursing home.” N.R.S. 293.316(1); see also N.R.S. 293.330(4) (listing exception). This exception, however, is at best ambiguous, at one point allowing an ill or disabled voter to designate another person “to obtain, deliver and return the ballot,” N.R.S. 293.316(3)(b) (emphasis added), but in the next subsection mandating that “the voter,” rather than the designee, “must . . . [r]eturn it to the office of the county clerk,” N.R.S. 293.316(4) (emphasis added); see also N.R.S. 293.3165 (second exception to Ban similarly allows designees to mark and sign, but not return, ballots).


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health of their loved ones. See, e.g., Ex. 3 ¶ 4.

The transition to an all-mail election further exacerbates the hardships imposed by the

Ban. Not only will many Nevada voters be required to use mail ballots for the first time, but due

to the pandemic, the risks of simply leaving home to return a ballot might prove insurmountable.

In short, the pandemic will require more voters than ever to seek assistance—which, due to the

Ban, will be harder than ever to receive. The Ban is problematic under the best of circumstances;

unless it is enjoined for the upcoming primary, it is virtually certain to disenfranchise entirely

lawful voters.

Ensuring that a mail ballot is delivered to election officials is a necessary prerequisite to

having that ballot counted. Cf. OCA-Greater Hous. v. Texas, 867 F.3d 604, 614–15 (5th Cir.

2017) (holding assistance in voting in Voting Rights Act context includes all steps necessary to

voting). The Voter Assistance Ban, a decades-old law that unreasonably prevents voters from

requesting assistance in a vital aspect of the voting process, is in direct conflict with the Voters’

Bill of Rights. As the Nevada Supreme Court has made clear, “when statutes are in conflict, the

one more recent in time controls over the provisions of an earlier enactment.” Laird v. State of

Nev. Pub. Emps. Ret. Bd., 98 Nev. 42, 45, 639 P.2d 1171, 1173 (1982). Therefore, the Voters’

Bill of Rights controls.

B. The Ban violates the right of suffrage under the Nevada Constitution.

As described above, the Nevada Constitution specifically guarantees the right to vote. See

supra at I.A.; Nev. Const. art. 2, § 1. Laws that “impede[] the exercise of” that right offend this

constitutional provision. Boyle, 21 Nev. at 71; see also Simmons, 680 P.2d at 980 (examining

“‘most carefully, and rather unsympathetically’ any challenge to a voter’s right to participate in

an election” (quoting Valdez, 145 P.2d at 869)). The Ban will effectively disenfranchise any

voters who require assistance returning their ballots but lack access to family members who can

provide it. The number of Nevadans for whom this is true has only increased since the pandemic

began. Absent relief from this Court, the Ban will significantly impede the exercise of franchise,

in violation of Article 2, Section 1.


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C. The Ban violates due process.

The Voter Assistance Ban also violates the due process clauses of the Nevada and U.S.

Constitutions. Each provides that no person shall be deprived of “life, liberty, or property,

without due process of law.” U.S. Const. amend. XIV, § 1; Nev. Const. art. 1, § 8. Because

“[t]he language in Article 1, Section 8(5) of the Nevada Constitution mirrors the due process

clause[]” of the U.S. Constitution, Nevada courts “look to federal precedent for guidance.”

Hernandez v. Bennett-Haron, 128 Nev. 580, 587, 287 P.3d 305, 310 (2012) (alteration in

original) (quoting Rodriguez v. Eighth Judicial Dist. Court ex rel. County of Clark, 120 Nev.

798, 808 n.22, 102 P.3d 41, 48 n.22 (2004)); see also City of Reno v. County of Washoe, 94 Nev.

327, 330, 580 P.2d 460, 462 (1978). A claim that an election law poses an undue burden on the

right to vote in violation of due process is analyzed under Anderson-Burdick. See Lau, 112 Nev.

at 54, 910 P.2d at 900; see also supra at I.B.

For those affected by the Ban, the burden it imposes is severe. If voters lack the ability to

return their ballots, their ballot will not be counted; thus, the Ban completely disenfranchises any

voters who cannot secure the assistance needed to deliver ballots. Disenfranchisement is

indisputably a severe burden on the right to vote. See, e.g., Serv. Emps. Int’l Union, Local 1 v.

Husted, 906 F. Supp. 2d 745, 750 (S.D. Ohio 2012) (“To disenfranchise a single voter is a matter

for grave concern.”). It is thus not surprising that, earlier this year, the U.S. Court of Appeals for

the Ninth Circuit, in the similar context of the federal Voting Rights Act, concluded that a ballot

collection and delivery ban posed an undue hardship on voters—even before the rise of the

current health crisis. See Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 1034 (9th Cir. 2020)

(en banc).

Nor is the Ban fairly calculated to serve a government interest that outweighs its

consequent burdens on voters’ rights. The needs to ensure the integrity of mail voting and

prevent undue influence on voters are already amply addressed by other measures. See McIntyre

v. Ohio Elections Comm’n, 514 U.S. 334, 345 (1995) (under Anderson-Burdick, courts

“evaluate[] the extent to which the State’s interests necessitated the contested restrictions”). For


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instance, it is already a felony in Nevada to “fraudulently [] request an absent ballot in the name

of another person,” N.R.S. 293.313(4); threaten, intimidate, coerce, or exercise undue influence

on any voter, N.R.S. 293.710(1)(a)–(c); impede or prevent a voter from voting, N.R.S.

293.710(1)(d); “vote[] or attempt[] to vote using the name of another person,” N.R.S.

293.775(2); or “attempt to vote more than once at the same election,” N.R.S. 293.780(1).

Layered over this, the burdens imposed by the Ban—an overbroad, superfluous

prohibition that prevents countless lawful Nevada voters from safely exercising their franchise in

the middle of an unprecedented pandemic—cannot be justified by a generalized interest in

preserving the integrity of elections, especially where it is not apparent that the Ban actually

serves that interest. See Ex. 10 ¶ 25; cf. Hobbs, 948 F.3d at 1035–37 (“Ballot-collection-related

fraud was already criminalized under Arizona law when [the challenged law] was enacted. . . .

[The challenged law] does not forbid fraudulent third-party ballot collection. It forbids non-

fraudulent third-party ballot collection.”); Weinschenk v. State, 203 S.W.3d 201, 217–19 (Mo.

2006) (striking down voter ID requirement where “the type of fraud that has been shown to

exist . . . is not addressed by the [] Requirement”); Simmons, 680 P.2d at 980 (refusing to deny “a

voter’s right to participate in an election . . . ‘absent bad faith, fraud or reasonable opportunity

for fraud’” (quoting Valdez, 145 P.2d at 869)). As one court noted, “a preoccupation with mostly

phantom election fraud leads to real incidents of disenfranchisement, which undermine rather

than enhance confidence in elections.” One Wis. Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 903

(W.D. Wis. 2016).

Simply put, the Voter Assistance Ban erects severe burdens for voters who need

assistance and lack family members to provide it, and is highly likely to lead to

disenfranchisement as a result. The State’s need to enforce the Ban is minimal given that is has

“less restrictive alternative[s]” for achieving the interests the Ban ostensibly promotes. Lau, 112

Nev. at 55, 910 P.2d at 900. Plaintiffs are highly likely to succeed on this claim.


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D. The Ban violates the right to take concerted action guaranteed by Article 1, Section 10 of the Nevada Constitution.

Finally, the Voter Assistance Ban violates Article 1, Section 10 of the Nevada

Constitution, which provides that “[t]he people shall have the right freely to assemble together to

consult for the common good, to instruct their representatives and to petition the Legislature for

redress of Grievances.”

The Organizational Plaintiffs formed when individuals assembled to advance common

political beliefs. Helping Nevadans to vote—to exercise that most “precious” and “fundamental”

of rights, Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966)—is an essential

component of their mission to promote the democratic process. See Ex. 5 ¶¶ 7–8; Ex. 6 ¶¶ 5, 8.

Their right to do so through collective action, both amongst their members and with voters they

assist, is at the heart of the freedom of assembly that is enshrined in the Nevada Constitution.

The Voter Assistance Ban violates this guarantee on its face because it prohibits group action to

promote democratic values. Specifically, it prevents individuals and organizations from working

together with voters to ensure that voters can participate in the core mechanism through which

Nevada citizens affect political change: voting. Accordingly, Plaintiffs are highly likely to

succeed on this claim.

IV. Plaintiffs are likely to succeed on the merits of their challenges to the Ballot Rejection Rules.

As tens of thousands of Nevadans transition to vote by mail for the first time in the June

Primary, they will find themselves disenfranchised, not because they were deterred from voting

by the hurdles just described, but because of already highly problematic provisions of Nevada

law that require elections officials to reject mail-in ballots when the return envelope is not

signed, or when election officials—untrained in the dubious art of signature matching—conclude

that the voter’s signature on the ballot return envelope does not sufficiently resemble a signature

that the voter provided to election officials at some point in the past (together, the Ballot

Rejection Rules, codified at N.R.S. 293.325 and 293.333). The Ballot Rejection Rules have


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operated and will continue to operate to unjustifiably and arbitrarily disenfranchise countless

qualified voters, like declarant John Porter, whose properly cast ballot was rejected in the 2016

primary. Ex. 7 ¶¶ 3–5. For the reasons that follow, the Ballot Rejection Rules violate the Nevada

and U.S. Constitutions and should be enjoined.

A. The Ballot Rejection Rules

When voting by mail, a voter is required to place the ballot in a return envelope and sign

the envelope. N.R.S. 293.330(1), 293.353(1). This requirement engenders three opportunities for

election officials to reject mail ballots cast by entirely lawful voters. First, if the return envelope

is not signed at all, and the voter does not cure the missing signature by the means required by

the county clerk and within seven days of the election, the ballot is rejected. N.R.S.

293.325(4)(c), 293.333(2). Second, “[i]f at least two employees in the office of the county clerk

believe there is a reasonable question of fact as to whether the signature on the [mail] ballot

matches the signature of the voter,” using samples of past signatures in the elections officials’

possession, it is flagged a mismatch. N.R.S. 293.325(1)(b). The ballot will be rejected unless the

county clerk concludes, applying their own standard-less discretion, that the ballot should be

counted. N.R.S. 293.325(2). Third, every mail ballot is reviewed again by the election board, this

time to determine if the signature on the return envelope specifically matches the signature on

the voter’s registration card. N.R.S. 293.333(1)(b). This second review provides yet another

opportunity for election officials to reject a ballot cast by a qualified voter based on the highly

questionable process of signature matching. At each stage, the people identifying signature

mismatches are elections officials who are doing so without the benefit of uniform, statewide

standards, training, or an adequate sample size to make any kind of accurate assessment of the

signatures presented to them.

B. The Ballot Rejection Rules will arbitrarily disenfranchise Nevadans who have properly cast ballots.

Courts have repeatedly found that signature matching is fraught with serious reliability

issues even for highly trained experts with substantial resources and multiple samples of


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contemporaneous signatures by the subject whose signature is being matched. Democratic Exec.

Comm. v. Lee, 915 F.3d 1312, 1320 (11th Cir. 2019) (“[E]ven if election officials uniformly and

expertly judged signatures, rightful ballots still would be rejected just because of the inherent

nature of signatures.”); Saucedo v. Gardner, 335 F. Supp. 3d 202, 206 (D.N.H. 2018) (“As will

become evident, this signature-matching process is fundamentally flawed.”); Martin v. Kemp,

341 F. Supp. 3d 1326 (N.D. Ga. 2018) (invalidating signature match scheme because it violated

due process guarantees); Fla. Democratic Party v. Detzner (FDP), No. 4:16-cv-607-MW/CAS,

2016 WL 6090943, at *7 (N.D. Fla. Oct. 16, 2016) (state “has categorically disenfranchised

thousands of voters arguably for no reason other than they have poor handwriting or their

handwriting has changed over time”); LULAC v. Pate, No. CVCV056403, 2019 WL 6358335

(Iowa Dist. Ct. Sept. 30, 2019) (rejecting signature match scheme as violation of due process and

equal protection). The Ballot Rejection Rules virtually guarantee that the June Primary will be

plagued with extensive false “mis-matches,” severely burdening voters in a manner that cannot

be justified by the state’s interest in the same. See FDP, 2016 WL 6090943, at *6 (“If

disenfranchising thousands of eligible voters does not amount to a severe burden on the right to

vote, then this Court is at a loss as to what does.”).

As Dr. Linton Mohammed, a U.S.-certified and internationally recognized forensic

document examiner with decades of experience researching and conducting signature matching,

explains in his attached declaration, experts in handwriting have long observed that an

individual’s signature varies substantially for many well-documented and entirely innocuous

reasons, including, for example, age, illness, injury, medication, eyesight, pen type, ink, writing

surface or position, paper quality, or psychological factors.3 Ex. 11 ¶¶ 22, 34, 35, 37; see also

Lee, 915 F.3d at 1320; Saucedo, 335 F. Supp. 3d at 205. Voters who are elderly, disabled, suffer

from poor health, are young, or are non-native English speakers are more likely to have greater

3 Dr. Mohammed’s expert opinion on signature matching has been credited by many courts. See, e.g., Lee, 915 F.3d at 1320; Saucedo, 335 F. Supp. 3d at 212–13.


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signature variability. Ex. 11 ¶¶ 22, 24, 26, 35–36; see also Saucedo, 335 F. Supp. 3d at 205–06.

For this reason, even experts with years of experience evaluating handwriting, and signatures in

particular, often struggle to make accurate matchesʊparticularly where they only have one or

two samples, or where the sample or samples they are matching against are not contemporaneous

or made under similar circumstances to the signature that they are attempting to verify. Ex. 11

¶¶ 24, 33–34, 42–43; Saucedo, 335 F. Supp. 3d at 206. Laypersons are much more likely to make

an error in comparing signatures, and those errors skew substantially towards flagging false

positives; in other words, laypersons are much more likely to wrongly conclude that an authentic

signature is not genuine. Ex. 11 ¶ 25, 27–30; Saucedo, 335 F. Supp. 3d at 217 (“[T]he task of

handwriting analysis by laypersons . . . is fraught with error.”).

There are three principal problems with Nevada’s Ballot Rejection Rules that are highly

likely to lead to disenfranchisement of lawful registered voters: (1) the statute’s use of an

ambiguous and overly inclusive standard for signature matching, (2) the lack of adequate

safeguards to ensure that ballots cast and signed by qualified voters are not discarded, and (3) the

lack of an adequate opportunity for voters to cure problems with their signatures. Each of these

problems independently undermines the Ballot Rejection Rules and is a basis for striking them

down; together, they compel the result.

1. The Signature Matching Standard

When signature matching occurs, election officials are essentially acting in an

adjudicatory role to determine if the mail ballot they are inspecting will be counted. Put

differently, election officials are granting or denying a voter’s ability to exercise a fundamental

right. Whenever a government actor makes such a determination, it is critically important that the

decision-making process be governed by adequate standards to avoid the arbitrary exercise of

discretion. Bush 531 U.S. 110; Lee, 915 F.3d at 1320; Saucedo, 335 F. Supp. 3d at 206; FDP,


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2016 WL 6090943, at *7; LULAC, 2019 WL 6358335, at *17.4 Nevada’s signature match

standards fall well short of this minimum requirement.

For signature matching that occurs in the county clerk’s office, two employees must find

only that there is a “reasonable question of fact” as to whether the signatures match. N.R.S.

293.325(1)(b). The problem with this standard is two-fold. First, the standard is sufficiently

vague that it invites different election officials to provide their own meaning and provides no

functional guidelines to channel their discretion. Ex. 11 ¶¶ 14–15, 18–19, 34, 42; Lee, 915 F.3d

at 1320; Saucedo, 335 F. Supp. 3d at 206; FDP, 2016 WL 6090943, at *7; LULAC, 2019 WL

6358335, at *17. Second, it sets too low a bar. A “reasonable question of fact” appears to invite

election officials to reject a ballot on something less than a preponderance of the evidence, let

alone clear and convincing evidence or the beyond a reasonable doubt standard employed in

some states. See Fla. Stat. § 101.68(c)(1)(b) (“[A]ny canvassing board finding that an elector’s

signatures do not match must be by majority vote and beyond a reasonable doubt.”).

For signature matching that occurs at the election board, election officials must compare

the signature on the envelope to a single reference signature from the voter’s registration card

and decide if the “voter is entitled to cast a ballot.” N.R.S. 293.333(1)(b), (c). This standard is no

standard at all. It likewise invites every election board, and each member thereof, to apply their

own standard, “virtually guaranteeing a crazy quilt of enforcement of the requirement from

county to county.” Lee, 915 F.3d at 1320; see also FDP, 2016 WL 6090943, at *7 (“The result is

4 This principle holds true outside of the election context as well, where courts have struck down laws that allow government officials to deny fundamental rights without sufficient standards to guide their discretion. See, e.g., Eddmonds v. Illinois, 469 U.S. 894, 897–98 (1984) (explaining postconviction review of death sentences must have adequate standards to avoid “arbitrary and capricious” action); Giaccio v. Pennsylvania, 382 U.S. 399, 402 (1966) (invalidating law that allowed juries to impose cost of prosecution on a criminal defendant under the due process clause “because of vagueness and the absence of any standards sufficient to enable defendants to protect themselves against arbitrary and discriminatory impositions of costs”); Niemotko v. Maryland, 340 U.S. 268, 271 (1951) (holding laws that govern ability to exercise First Amendment rights must be “narrowly drawn” with “reasonable and definite standards”).


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a crazy quilt of conflicting and diverging procedures. And this Court is deeply troubled by that

complete lack of uniformity.”).

2. Inadequate Safeguards

Nevada’s signature matching scheme lacks numerous features critical to safeguard

against the rejection of ballots cast and signed by qualified voters. See Lee, 915 F.3d at 1315;

Saucedo, 335 F. Supp. 3d at 206. Specifically:

x The signature matching rules do not require experts to conduct signature matching, Ex. 11 ¶¶ 17, 21, 22, 26–29, 35, 38–40;

x The rules do not require that the officials conducting signature matching be screened for their ability to accurately match signatures, id. ¶ 40;

x The rules do not require that officials conducting signature matching undergo training, and, in practice, it appears they are provided with little to no training, Ex. 19, Attach. C; Ex. 11 ¶¶ 19, 25, 33–34, 36;

x The rules do not require that officials conducting signature matching be provided with adequate equipment such as magnification and lighting equipment, Ex. 11 ¶¶ 19, 33, 41, 46–47;

x The rules do not require that officials conducting signature matching spend the minimum required time, approximately two hours, to accurately authenticate a signature, id. ¶¶ 24, 33; and

x The rules do not require the use of adequate reference signatures for determining if the wet-ink signature on the return envelope is genuine (i.e., they do not require matching be done with multiple contemporaneous signature samples as a reference, which is standard practice in the field), and they do allow the use of digital signatures, a poor basis to compare a wet-ink signature against, Ex. 19, Attach. D; Ex. 11 ¶¶ 24, 34, 41–45, 47.

These features and failures betray a fundamentally flawed signature matching scheme that

creates an unacceptable risk, nay certainty, that properly cast ballots will be rejected by election

officials. Lee, 915 F.3d at 1315 (“Florida’s lack of . . . formal training requirements for those

who assess the signatures as mismatched can also contribute to false positives for signature

mismatches.”); Saucedo, 335 F. Supp. 3d at 210 (“[Election officials] receive no training in

handwriting analysis, and they are not screened for conditions, such as poor eyesight, that may

impede their ability to discern subtle variations in signatures. The assumption seems to be that

the substantive task of signature comparison is one of common sense.”); see also Saucedo, 335

F. Supp. 3d at 217–18 (noting lack of training, lack of screening, lack of equipment, and


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insufficient time to compare signatures); FDP, 2016 WL 6090943, at *8 (“Rather, thousands of

mismatched-signature voters, arguably through no fault of their own, will have their ballots

declared ‘illegal’ by canvassing boards—whose members, I might add, lack any formal

handwriting-comparison training or education.”); LULAC, 2019 WL 6358335, at *17 (noting

lack of expertise, training, and sufficient reference signatures).

3. The Cure Process

Despite the high rate of error inherent in signature matching, particularly by non-experts,

Nevada law provides an inadequate mechanism by which voters whose ballots are flagged for

rejection may “cure” the purported issue. See N.R.S. 293.325(4).

If a ballot is rejected by the county clerk’s office, the statute provides for cure

mechanisms on its face; but this opportunity is illusory because of the time limits imposed by the

statute.5 The entire process must be completed within seven days of the election. N.R.S.

293.325(c), 293.333(2). That is not enough time to notify voters and give them a meaningful

opportunity to cure a technical defect or correct a falsely flagged signature—particularly under

the current circumstances. It is hardly even enough time to notify voters that there is an issue

with their ballots in the first place.

There are three steps between when a voter drops her ballot in the mail and when she

receives notice that there was an issue with her ballot; each step spans several days. First, voters

are permitted to place their ballot in the mail up until election day. N.R.S. 293.317. The statute

anticipates that it may take a ballot three days to reach elections officials, N.R.S. 293.317(2), a

time frame that reflects normal postal service and does not account for the impact of the

pandemic.6 Thus, even under ordinary circumstances, ballots may not be received by election

5 If a voter forgets to sign the return envelope, the county clerk is required to contact the voter to cure the signature. N.R.S. 293.325(c). Similarly, if the county clerk’s office flags a potential signature mismatch at the first stage of review, the county clerk must contact the voter to confirm the signature. N.R.S. 293.325(1)(a).

6 The U.S. Postal Service states that first class mail takes up to 3 days to be delivered. Ex. (footnote continued)


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officials until several days into the cure period. Second, there is no deadline prescribed by the

statute or implementing regulations for when county officials are required to notify voters. In

general, but particularly in the June Primary where election officials will be processing

exponentially more mail ballots than they have in the past, it could take election officials days to

receive, sort, and review mail ballots and then create and process notices to voters. Third,

election officials intend to notify voters of the need to cure their ballots by mail. Ex. 19, Attach.

A. Those voters will not even be able to begin the cure process until they receive that notice—

which may take three (or more) days, assuming that they are sheltering at the residence to which

it is mailed and check their mail daily. Thus, many voters will not even receive notice that there

is an issue with their ballot until after the cure period has expired, rendering the cure provisions

in the statute “illusory.” Lee, 915 F.3d at 1324.

Then there are the actual steps voters must take to cure an issue with their ballots. Each

county has broad discretion to design their own rules. In Clark County, voters have three options

for curing an issue with their ballots: (1) they can mail back the notice with a copy of their

Nevada ID or driver’s license, (2) they can email back the notice with a copy of their Nevada ID

or driver’s license, or (3) they can go in person to the election department. Ex. 19, Attach. A.7

Each of these methods is problematic, particularly in the current pandemic. The first option,

mailing a notice back to the election department, is all but guaranteed to take longer than the

time permitted to cure a signature issue. And both the first and second method require both a

Nevada ID or driver’s license and access to a scanner and printer. Voters without one of these

identifications or without access to a scanner will be left only with the option of curing their

20, Attach Q. But mail service may take even longer in rural areas. In 2012, the U.S. Postal Service closed the Elko County mail processing plant, meaning that mail from that county is now processed in Salt Lake City, Utah—227 miles away. See Ex. 20, Attach. R. Nevada now has only two mail processing plants in the state, one in Reno and one in Las Vegas. Id.

7 Plaintiff Nevada State Democratic Party, through counsel, also sent a public records request to Registrar Spikula. requesting more information on the standards adopted by Washoe county.. Ex. 19 ¶ 2.


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signature in person. But many voters who have decided to vote by mail have done so because

going in person is not practicable, either because of work or family obligations, or, in the case of

the current public health crisis, to avoid exposure to the novel coronavirus. Requiring them to go

in person to present an ID negates the benefits of voting by mail, and will be too high a cost for

many voters. Martin, 341 F. Supp. 3d at 1339.

And for voters whose ballots are rejected by the election board, the statute simply affords

no cure process at all. See N.R.S. 293.333, 293.335.

C. The Ballot Rejection Rules violate of the right of suffrage under the Nevada Constitution.

The Ballot Rejection Rules violate Article 2, Section 1 of the Nevada Constitution by

denying to qualified voters their right to have their vote counted. See Buckner, 22 Nev. at 438

(“The right of voting, and, of course, of having the vote counted, is one of most transcendent

importance,—the highest under our form of government.” (emphasis added)). Unless enjoined,

they will result in the disenfranchisement of qualified voters who have cast a ballot because of

either (1) a technical error that could, with an adequate cure period, be corrected or (2) the

untrained judgment of election officials. Because voters who are entitled to vote will have their

votes rejected, the Ballot Rejection Rules violate the Nevada Constitution. See id. (“That one

entitled to vote shall not be deprived of his privilege by action of the authorities is a fundamental

principle.” (quoting Cooley, supra, at 680)); Davies, 5 Nev. at 371 (“The form of the law by

which an individual is deprived of a constitutional right is immaterial. The test of its

constitutionality is, whether it operates to deprive any person of a right guaranteed or given to

him by the Constitution.”).

The Ballot Rejection Rules also violate the principle that election laws be “reasonable,

uniform, and impartial.” Boyle, 21 Nev. at 71; see also Findley, 20 Nev. at 202. By failing to

proscribe sufficient standards for signature matching, the statute invites different counties, and

different personnel within those counties, to apply their own standards. And because the statute

and implementing regulations allow untrained laypersons to conduct signature matching—


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without screening, without proper equipment or time, and without adequate reference signatures

with which to conduct the matching—some voters will have their ballots properly counted, while

others will have their ballots thrown out.

D. The Ballot Rejection Rules violate due process.

“There is more to the right to vote than the right to mark a piece of paper and drop it in a

box or the right to pull a lever in a voting booth. The right to vote includes the right to have the

ballot counted.” Reynolds v. Sims, 377 U.S. 533, 555 n.29 (1964) (quoting South v. Peters, 339

U.S. 276, 279 (1950) (Douglas, J., dissenting)); see also Lee, 915 F.3d at 1315 (“‘Voting is the

beating heart of democracy.’ . . . But, of course, voting alone is not enough to keep democracy’s

heart beating. Legitimately cast votes must then be counted.” (quoting League of Women Voters

of Fla. v. Detzner, 314 F. Supp. 3d 1205, 1215 (N.D. Fla. 2018)). Because the Ballot Rejection

Rules deny Nevadans the right to have their votes counted, they violate the due process clauses

of Nevada and U.S. Constitutions.

The Ballot Rejection Rules violate these constitutional safeguards by arbitrarily

disenfranchising lawful, qualified voters. See LULAC, 2019 WL 6358335, at *16 (“There are

potentially myriad different, arbitrary classifications of voters including, but not limited to,

which of the 99 counties a voter lives in; the training of a county auditor or staff; the availability,

type, age and quality of any signatures ‘on record’ for a voter.”). When a ballot is rejected

because of the flawed use of signature matching, or because a voter was not provided an

adequate opportunity to cure, the result is outright disenfranchisement, a severe burden on the

right to vote. See FDP, 2016 WL 6090943, at *6 (“If disenfranchising thousands of eligible

voters does not amount to a severe burden on the right to vote, then this Court is at a loss as to

what does.”); Saucedo, 335 F. Supp. 3d at 218 (“It cannot be emphasized enough that the

consequence of [the election official’s] decision—disenfranchisement—is irremediable.”). Given

this burden, courts across the country have struck down signature matching laws. See, e.g., Lee,

915 F.3d at 1319–20, 1324 (affirming preliminary injunction against signature match law

pursuant to Anderson-Burdick claim); Saucedo, 335 F. Supp. 3d at 222 (granting summary


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judgment for plaintiffs that signature match law violated procedural due process); Martin, 341 F.

Supp. 3d at 1339–40 (enjoining signature match law pursuant to a due process claim); FDP,

2016 WL 6090943, at *8 (enjoining signature match law pursuant to Anderson-Burdick claim);

LULAC, 2019 WL 6358335, at *17 (enjoining signature match law pursuant to equal protection

and due process claims).

The severe burden on the right to vote is not justified by the State’s interest in imposing a

signature matching regime. Lee, 915 F.3d at 1322 (rejecting fraud prevention and efficient

administration of elections as an adequate justification for signature match law); Saucedo, 335 F.

Supp. 3d at 220 (rejecting fraud prevention as an adequate justification for signature match law);

FDP, 2016 WL 6090943, at *7 (same); LULAC, 2019 WL 6358335, at *16 (same). As discussed

supra at III.C., state officials have myriad other tools for preserving the integrity of Nevada’s

elections. The disenfranchisement of qualified voters is certainly not justified by the State’s

interest in imposing this signature matching regime. Having chosen to implement signature

matching, a highly suspect method for verifying identity in the best of circumstances, Nevada is

required to articulate a sufficiently specific and rigorous standard to ensure that properly cast

ballots are not rejected, and Defendants are required to adopt adequate safeguards and a cure

process to ensure that qualified voters have their ballots counted.

While ballot rejection rules based on signature requirements and signature matching

disenfranchise voters in every election, they threaten to be particularly harmful in the upcoming

June Primary. Typically, about 90 percent of Nevadans vote in person and only 10 percent by

mail. See, e.g., Ex. 20, Attachs. S–V. In the June Primary, tens of thousands of Nevadans will be

shifted from voting in person, where there are no signature requirements for voters to comply

with or for election officials to enforce, to vote by mail. Voters will face the added prerequisite

to voting imposed by the signature requirement on the front end, and an onerous cure process on

the back end if their ballot is rejected because the return envelope lacks a signature or is

improperly flagged as having the wrong signature. Election officials will be faced with an

unprecedented volume of mail ballots to inspect, process, follow up with voters on, and count, all


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in the midst of a pandemic which threatens to slow mail service, and all within the same seven

days in which ballots must be processed during a normal election. Put simply, the Ballot

Rejection Rules are incompatible with honoring each Nevadan’s right to vote and have that vote

counted in the normal course, and are especially so in the upcoming election.

V. Plaintiffs are likely to succeed on their claim that Nevada Administrative Code § 293.217(1) violates N.R.S. 293.317.

In 2019, the Nevada Legislature amended the ballot return laws to allow a mail ballot that

is postmarked by election day to be counted. See N.R.S. 293.317(1)(b). Before that change in the

law, a ballot had to be received by election day to be counted. See 2019 Nev. Laws ch. 619, § 45.

Nevada Administrative Code § 293.317 continues to reflect the old rules. See Nev. Admin. Code

§ 293.317(1) (“To be counted, an absent ballot must be received by the office of the county clerk

by 7 p.m. on the day of the election.”). Because Nevada Administrative Code § 293.317(1)

conflicts with the statute it is intended to implement, it is invalid. See Roberts v. State, 104 Nev.

33, 37, 752 P.2d 221, 223 (1988) (“Administrative regulations cannot contradict or conflict with

the statute they are intended to implement.”).

VI. Absent a preliminary injunction, Plaintiffs will suffer irreparable injury.

“A preliminary injunction is proper where the moving party can demonstrate . . . that,

absent a preliminary injunction, it will suffer irreparable harm for which compensatory damages

would not suffice.” Excellence Cmty. Mgmt., LLC v. Gilmore, 131 Nev. 347, 350–51, 351 P.3d

720, 722 (2015).

As courts routinely recognize, “abridgement of the right to vote constitutes an irreparable

injury.” Sanchez v. Cegavske, 214 F. Supp. 3d 961, 976 (D. Nev. 2016); see also OFA, 697 F.3d

at 436 (“A restriction on the fundamental right to vote [] constitutes irreparable injury.”);

Cardona v. Oakland Unified Sch. Dist., 785 F. Supp. 837, 840 (N.D. Cal. 1992) (“Abridgement

or dilution of a right so fundamental as the right to vote constitutes irreparable injury.”).

Moreover, “[a]s a constitutional violation may be difficult or impossible to remedy through

money damages, such a violation may, by itself, be sufficient to constitute irreparable harm.”


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City of Sparks v. Sparks Mun. Court, 129 Nev. 348, 357, 302 P.3d 1118, 1124 (2013).

Absent an injunction, the Voter Plaintiffs in this case—as well as other Nevadans who

are disenfranchised as a result of Defendants’ actions as challenged in this suit—will suffer

constitutional violations that will result in irreparable, non-compensable injuries. If Nevada

voters do not have access to reasonable in-person voting facilities, do not receive a mail ballot

because of the arbitrary distinction between active and inactive voters, cannot return a mail ballot

because of the unnecessary restrictions imposed by the Voter Assistance Ban, or have a ballot

improperly rejected due to an erroneous signature mismatch, their ability to vote will be severely

curtailed. Such a deprivation is undoubtedly irreparable; “once the election occurs, there can be

no do-over and no redress.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224,

247 (4th Cir. 2014); see also Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1258 (N.D.

Fla. 2016) (“This isn’t golf: there are no mulligans.”).8

VII. The balance of harms favors issuing a preliminary injunction.

The balance of harms also strongly favors issuance of a preliminary injunction. Absent

such relief, Plaintiffs will suffer serious injury to their most fundamental rights under both the

Nevada and U.S. Constitutions, hardships that clearly “outweigh any hardships to [Defendants]

caused by implementing the injunction.” Indep. Asphalt Consultants, Inc. v. Studebaker, No.

53908, 2010 WL 4278416, at *2 (Nev. Oct. 25, 2010); see also, e.g., Taylor v. Las Vegas Metro.

Police Dep’t, No. 2:19-CV-995 JCM (NJK), 2019 WL 5839255, at *10 (D. Nev. Nov. 7, 2019)

(“The fact that plaintiffs have raised serious First Amendment questions compels a finding

8 The Organizational Plaintiffs will be irreparably harmed in ways even beyond abridgement of their right of assembly. The disenfranchising effects of the challenged policies threaten the associational rights of the Organizational Plaintiffs and, ultimately, electoral harm for the Democratic Party, against the interests and objectives of the Organizational Plaintiffs. See Ex. 4 ¶ 5; Ex. 5 ¶¶ 9–11; Ex. 6 ¶¶ 4–5. They will also need to divert precious resources to remedying the effects of Defendants’ unlawful policies. See Ex. 4 ¶ 10; Ex. 5 ¶¶ 5–6, 12–14; Ex. 6 ¶¶ 9–10. And finally, not only will the Organizational Plaintiffs themselves be harmed, but their members will be harmed individually, resulting in an associational injury as well. See Ex. 6 ¶ 4.


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that . . . the balance of hardships tips sharply in plaintiffs’ favor.” (alteration in original) (quoting

Am. Beverage Ass’n v. City and County of San Francisco, 916 F.3d 749, 758 (9th Cir. 2019))).

Defendants cannot point to any substantial harm that they will experience as a result of a

preliminary injunction, let alone harms that outweigh the deprivation of Plaintiffs’ rights.

Defendants will not experience any harm from enjoinment of the Voter Assistance Ban and

Ballot Rejection Rules for the same reason that the State has no legitimate reason for the laws in

the first place—the laws are not effectively designed to ensure the integrity of elections, and a

litany of other statutes already address this issue. See supra at III.C. And although the State

might incur additional costs maintaining additional polling locations and printing and mailing

ballots to all registered voters, “[i]t is difficult . . . to balance a financial and logistical hardship

with a burden on constitutional rights.” Sanchez, 214 F. Supp. 3d at 976.

VIII. The issuance of a preliminary injunction is in the public interest.

“By definition, ‘[t]he public interest . . . favors permitting as many qualified voters to

vote as possible.’” League of Women Voters, 769 F.3d at 247 (quoting OFA, 697 F.3d at 437).

Enjoining the policies and laws challenged by Plaintiffs will protect not only their constitutional

rights, but all Nevadans who would otherwise risk disenfranchisement. See League of Wilderness

Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014)

(“The public interest inquiry primarily addresses impact on non-parties rather than parties.”

(quoting Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002))). A

preliminary injunction would not prevent Defendants and the State from timely conducting the

June Primary; it would instead ensure, in light of the current pandemic, that their policies are

consistent with state statute and the Nevada and U.S. Constitutions. Cf. Sanchez, 214 F. Supp. 3d

at 976–77 (granting preliminary injunction to vindicate voting rights where “there is no

indication it would interfere with the state’s ability to move forward with the November election

as scheduled”). A preliminary injunction will allow all Nevada voters to exercise their franchise

and constitutional rights—and therefore serve the public interest.


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CONCLUSION

Plaintiffs respectfully submit that the Court should grant Plaintiffs’ motion for a

preliminary injunction to prevent the violation of Plaintiffs’ constitutional rights and ensure that

voters have every opportunity to fully engage in the democratic process and exercise their

fundamental right to vote. Accordingly, Plaintiffs respectfully request a preliminary injunction

from this Court (1) requiring Defendants to expand the number of polling locations in the June

Primary to reflect the population and geographic size of each county; (2) requiring Defendants to

mail ballots to all registered voters, active and inactive alike, in the June Primary; (3) enjoining

enforcement of the Voter Assistance Ban; (4) enjoining enforcement of Nevada’s Ballot

Rejection Rules; and (5) enjoining enforcement of Nevada Administrative Code § 293.217(1).

Dated: April 22, 2020

PERKINS COIE LLP

By: Marc E. Elias* Henry J. Brewster* Courtney A. Elgart* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 600 Washington, D.C. 20005-3960 Abha Khanna* Jonathan P. Hawley* PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, Washington 98101-3099 Bradley S. Schrager Daniel Bravo WOLF RIFKIN SHAPIRO SCHULMAN & RABKIN, LLP 3556 East Russell Road, Second Floor Las Vegas, Nevada 89120

Attorneys for Plaintiffs Daniel Corona, Darin Mains, Brian Melendez, Teresa Melendez, Nevada State Democratic Party, DNC Services Corporation/Democratic National Committee, DCCC, and Priorities USA

*Pro hac vice application forthcoming



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INDEX OF EXHIBITS

Exhibit No. Description No. of Pages

1 Declaration of Daniel J. Corona dated April 21, 2020.

4

2 Declaration of Darin Mains dated April 22, 2020.

3

3 Declaration of Teresa Melendez dated April 21, 2020.

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4 Declaration of Reyna Walters-Morgan dated April 22, 2020.

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5 Declaration of Alexander Edelman dated April 21, 2020.

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6 Declaration of Alana Mounce, Executive Director of Nevada State Democratic Party dated April 21, 2020.

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7 Declaration of John Porter dated April 21, 2020.

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8 Declaration of Tammi Tiger dated April 22, 2020.

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9 Declaration of John D. Solomon dated April 21, 2020.

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10 Declaration of Dr. Daniel C. McCool dated April 22, 2020.

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11 Declaration of Dr. Linton A. Mohammed dated April 22, 2020.

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12 Press Release: Secretary Cegavske Announces Plan to Conduct the June 9, 2020 Primary Election by All Mail.

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13 June 9, 2020, Primary Election Notice of All-Mail Ballot Election (Clark County).

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14 Notice of Vote-by-Mail Election and Official Sample Ballot (Washoe County).

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15 Notice of Primary Election (Elko County). 2

16 2020 Election Dates (Elko County). 2


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Exhibit No. Description No. of Pages

17 Voter and Sample Ballot Information (Elko County).

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18 Letter from Marc Erik Elias & Bradley S. Schrager to Hon. Barbara Cegavske, Secretary of State dated April 10, 2020.

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19 Declaration of Daniel Bravo dated April 22, 2020.

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20 Declaration of Bradley S. Schrager dated April 22, 2020.

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Exhibit 5

Declaration of John D. Solomon, filed in support of Plaintiffs’ Emergency Motion

for Preliminary Injunction and Declaratory Relief, Corona v. Cegavske, No. 20-OC-00064-1B (Nev. Dist. Ct.),

dated April 21, 2020.

Exhibit 5




3 of 3


Exhibit 6

Declaration of Dr. Daniel C. McCool, filed in support of Plaintiffs’ Emergency Motion for Preliminary Injunction and

Declaratory Relief, Corona v. Cegavske, No. 20-OC-00064-1B (Nev. Dist. Ct.),

dated April 22, 2020.

Exhibit 6


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FIRST JUDICIAL DISTRICT COURT IN AND FOR CARSON CITY, STATE OF NEVADA

DANIEL CORONA, DARIN MAINS, BRIAN MELENDEZ, TERESA MELENDEZ, NEVADA STATE DEMOCRATIC PARTY, DNC SERVICES CORPORATION/DEMOCRATIC NATIONAL COMMITTEE, DCCC, AND PRIORITIES USA,

Plaintiffs,

vs.

BARBARA CEGAVSKE, in her official capacity as Nevada Secretary of State, JOSEPH P. GLORIA, in his official capacity as Registrar of Voters for Clark County, Nevada, DEANNA SPIKULA, in her official capacity as Registrar of Voters for Washoe County, Nevada, KRISTINE JAKEMAN, in her official capacity as the Elko County Clerk, and AARON FORD, in his official capacity as the Attorney General of the State of Nevada,

Defendants,

Case No.: 20-OC-00064-1B

Dept. No.: I

DECLARATION OF DR. DANIEL C. MCCOOL

DECLARATION OF DR. DANIEL C. MCCOOL

I, DR. DANIEL C. MCCOOL do hereby declare and say:

I. Introduction

1. The plaintiffs in this case have asked to answer the following research questions: 1.

Does the closing of polling places except one in each county create a disproportionate and undue

burden on some groups of voters in Nevada? 2. Does the voter assistance ban in Nevada create a

disproportionate and undue burden on some voters?

2. In this report I utilize a well-recognized methodology known as “Qualitative

Methods,” which is widely recognized in the social sciences (Denzin and Lincoln, 2000, 2011;

Consortium on Qualitative Research. n. d.). This is the same methodology I have used in nearly all


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my academic work, as well as all of my previous expert witness reports. For this short report I

relied primarily on the political science literature focusing on voting behavior and the design of

electoral systems. The widespread use and acceptance of Qualitative Methods, along with its

applicability to large-scale analytical problems, is why I have consistently relied on it for both my

academic work and my expert witness reports.

II. Qualifications

3. I am Professor Emeritus of Political Science at the University of Utah. I received a

B.A. in Sociology from Purdue University, and a Ph.D. in Political Science from the University of

Arizona. I have a doctoral minor in Latin American History. For over thirty-five years I have

conducted research on voting rights. In 2007 I co-authored Native Vote: American Indians, The

Voting Rights Act, and the Right to Vote (Cambridge University Press). In 2012 I edited a book

titled The Most Fundamental Right: Contrasting Perspectives on the Voting Rights Act (Indiana

University Press). I also have several peer-reviewed publications that focus on public policy

methodology and theory. I utilized “qualitative methods” for nearly all of the ten books, 25

articles, and 19 book chapters that I have published. From 1998 to 2007 I directed the American

West Center, which conducted research on behalf of rural people in Utah and the West.

4. I have served as an expert witness in 12 voting rights cases. These cases are listed

at the end of this report as Appendix A. Two of these cases were filed in state courts, and the

others involved claims under Section 2 or Section 203 of the Voting Rights Act. I applied the

same methodology, described above, in all of these cases. My reports have never been rejected by

a court. My vita is attached. I have been hired by the plaintiffs for this case and I am compensated

at the rate of $250/hour. The conclusions I present in this report are mine alone, are not related to

or endorsed by the University where I have an appointment, and were reached through an

independent process of research and inquiry.


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III. Research on “Voter Costs” and “Voter Tradition”

5. Before I examine the specifics of the proposed reduction in polling places and the

impact of the voter assistance ban, it is useful to understand the prevailing themes in the political

science literature that are relevant to the two research questions posed in this report. A large body

of research has found that many variables affect voter behavior and voter turnout, but the two most

important and relevant trends in the literature concern “voter costs” and “voter tradition.”

6. The concept of “voter costs” is well-defined in the political science literature (for

an excellent review of this literature, see: Berinsky. 2005). As Brady and McNulty note “…costs

do matter to voter turnout” (2011: 115). Rosenstone and Hansen put it in blunt terms:

“Participation in politics… has a price, a price that is some combination of money, time, skill,

knowledge, and self-confidence” (1993:12-14). These voter costs have a direct impact on voter

behavior and turnout. Even the weather can affect the costs of voting (Hansford and Gomez.

2010). The key point is that certain attributes of an electoral system can increase, or decrease,

those costs. Any attribute of an electoral system that increases voter costs tends to decrease voter

participation and turnout. Thus, if the goal is to increase participation, inclusivity, and turnout,

then voter costs should be minimized.

7. A second theme in the literature concerns voter tradition. Voters are creatures of

habit, and when their expected and accustomed vote tradition is disrupted, it tends to decrease

turnout. As one study put it, “Voting may be habit-forming” (Gerber, Green, and Shachar. 2003).

For example, Brady and McNulty found that the outcome of elections could be changed by the

“extensive manipulation of polling place locations” (2011: 115). Changes to polling locations,

new limits on “convenience voting,” and changes in voter criteria (such as a new ID requirement),

can reduce turnout. Furthermore, these reductions do not occur equally across all demographic

subsets of voters; some groups of voters are more affected than others. Thus, perturbations in


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Page 4 of 18

voting procedure tend to have a negative impact on turnout that is unevenly distributed across

voting populations.

IV. Does the closing of polling places except one in each county create a disproportionate and undue burden on some groups of voters in Nevada?

8. In response to the unprecedented challenges caused by the COVID-19 pandemic,

The Nevada Secretary of State announced on March 24, 2020, that the June 9th primary would be

conducted as an all-mail election, with only one in-person polling place in each county (Cegavske.

2020). The political science literature supports the assumption that this dramatic change may

decrease turnout in specific groups of voters unless efforts are made to lower voter costs for those

voters.

A. Closing Polling Places

9. Research on the impact of closing traditional polling places uniformly indicates that

such closures decrease turnout. McNulty, Dowling, and Ariotti found that “polling consolidation

decreases voter turnout substantially… suggesting that even habitual voters can be dissuaded from

going to the polls (2017: 435):” Brady and McNulty reached a similar conclusion: “Changes in

polling places and increased distances to polling places change turnout behavior due to increased

inconvenience (2011: 12).” Haspel and Knotts also found that “small differences in distance from

the polls can have a significant impact on voter turnout. We also find that moving a polling place

can affect the decision to vote” (2005: 560). Similarly, Stein and Vonnahme found that “voting

places that are more accessible and open… significantly enhance voter performance and

evaluation” (2012: 692).

10. Closing or consolidating polling places can dramatically increase voter costs

(Yoder. 2018). A recent U.S. House Subcommittee report found that “Polling place closures can

lead to long lines and extreme wait times and can require voters to drive for miles to reach a


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polling place” (U. S. House. 2020). One of the biggest negative factors with the closure of polls is

the increased distance that many voters must travel to a new polling location; greater travel

distance lowers turnout. Gimpel and Schuknecht concluded that: “Even after controlling for

variables that account for the motivation, information and resource levels of local precinct

populations, we find that accessibility does make a significant difference to turnout.” (Gimpel and

Schuknecht. 2003: 471).

B. Impact on Native American Voters

i. Distance to In-person Voting for Native Americans

11. Many Native American voters will face a significantly longer drive to a polling

location if there is only one location in each county. If the only polling location is in the county

seat, the distances that must be traveled by some tribal members is extreme if they want to vote in-

person. Nixon, on the Pyramid Lake Reservation, is a 96-mile drive round-trip to Reno where

Washoe County plans to locate its only polling place. Shurz, on the Walker River Reservation, is a

68-mile drive round-trip to Hawthorne, the Mineral County seat. The Moapa Reservation is in

Clark County; it is a 96-mile drive round-trip to North Las Vegas where the county plans to locate

its single polling place. Residents of the Duck Valley Reservation will have to drive 200 miles

round-trip to vote at the polling place in Elko.

12. An additional issue is the confusion that will be caused if a single polling place is

located in the county seat and traditional polling locations are closed. That means that residents of

the Pyramid Lake and Walker River Reservations will have to go to three separate counties to vote

in-person. This confusion is exacerbated by the fact that, on two reservations, the state had only

recently agreed to add satellite polling locations for early voting and Election Day voting. These

additional sites were the result of a lawsuit filed by tribal members (Sanchez v. Cegavske. 2016;


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Solis. 2018; Richardson. 2016). If the Secretary of State’s March 24 directive is implemented,

these tribes will lose their newly-won satellite polling locations.

ii. Problems with Mail Service on Indian Reservations

13. Native voters may opt to vote by mail, but that option is only helpful if there is

either reliable home mail delivery or a nearby post office. On many Indian reservations, that is not

the case. For the Pyramid Lake Reservation, which is 742 square miles and spread over three

counties, there is one post office in Nixon. For the Walker River Reservation, which is 507 square

miles and also spread over three counties, there is one post office in Shurz. The Duke Valley

Reservation is 450 square miles, in two states, with one post office in Owyhee.

14. The problem of long distances to either post offices or polling places is exacerbated

by poor reservation roads, the lack of street addresses for some homes on the reservation, and the

common practice of many people sharing one PO box. Native people are also less likely to own a

car or afford the gas money to drive long distances to either a polling place or a post office (see

demographic data, below). All of these factors increase voter costs and create an undue burden on

Native Americans

15. In sum, the proposed plan to close all but one polling location in each county will

dramatically increase voter costs and greatly affect voter tradition—actions that result in

significant reductions in turnout, especially for specific populations.

iii. Demographic Factors

16. The voter costs of eliminating all but one poll in each county are compounded by

socio-economic factors that have a major impact on turnout, especially in Hispanic and Native

American communities with lower income levels. It is well established in political science that

socio-economic well-being correlates positively with political participation: “The SES [socio-

economic status] model does an excellent job predicting political participation” (Brady, Verba and


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Schlozman. 1995: 272). This is especially true for voting (Wolfinger and Rosenstone. 1980;

Brady and McNulty. 2011; Leighley and Nagler. 2014). This fact has particular relevance to

minorities that tend to have lower income than their white counterparts: “In general, minority

participation can be suppressed by socioeconomic factors such as less education and lower

income” (Lien. 2000). Another political scientist framed the SES/participation link as “the issue of

our time” (Williams. 2004). Thus, unequal resources—money, education, internet connection,

knowledge of the system, civic skills, and the time and means to access polling sites and

mailboxes—result in unequal opportunities to elect the candidate of one’s choice. Nearly 13

percent of Nevadans live in poverty, so the number of voters affected by these systemic biases in

the electoral process is significant (U. S. Census, Quick Facts. 2020).

17. These studies that link income and political participation are important because

Native people have significantly lower incomes. The chart below shows the relationship between

race/ethnicity and poverty in Nevada, and clearly demonstrates the stark poverty level of Native

Americans compared to other racial and ethnic groups.

Chart showing how households in Nevada from different racial and ethnic groups based on data measurements.Source: Solis. 2019. Data from the 2017 American Community Survey


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Of all the people living in poverty in Nevada, nearly a quarter are Native American, even though

they are only 1.7 percent of the population (Talk Poverty. 2020; U. S. Census, Quick Facts. 2020).

18. Poverty and unemployment are particularly severe on Nevada’s Indian reservations.

The website for the Pyramid Lake Paiute Tribe indicates the Tribe has an unemployment rate of 44

percent (Pyramid Lake Paiute Tribe. n.d.). An article on the fifteen tribes in the U. S. with the

worst unemployment rates includes the Walker River Paiutes, with unemployment at 83 percent

(Schilling. 2013). In Nixon (96.4 percent Native American, on the Pyramid Lake Reservation),

half the residents are not in the workforce; the median household income is $26,607, compared to

the state average of $57,598. In Shurz (83.4 percent Native American, on the Walker River

Reservation), the unemployment rate is 24.9 percent; just down the road in Hawthorne,

unemployment is 6.7 percent (U. S. Census, American Community Survey, 2010-2014: DP030).

19. In sum, long distances to a single in-person polling place in each county, poor

reservation transportation systems, unreliable and slow mail delivery in remote areas of Indian

reservations, and socio-economic factors combine to create a serious disadvantage for Native

Americans. Closing polling places except for one in each county will exacerbate these negative

factors and create a significant additional burden for Native American voters.

V. Does the voter assistance ban in Nevada create a disproportionate and undue burden on some voters?

20. Nevada law bans any individual other than a family member from assisting a voter

with returning a mail-in ballot (Nev. Rev. Stat.). Thus, it is a felony to help someone deliver their

ballot, even if they have requested this service. This results in significant increases in voter costs,

but cannot be justified by any reasonable criteria of public good.


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A. Increased Voter Cost

21. A voter assistance ban makes it illegal for a voter to have someone assist them with

their ballot by delivering that ballot to a mailbox or polling location. In states that allow ballot

collection, an individual voter may, at their discretion, opt to have someone collect their ballot and

deliver it to a mailbox or polling place. Thus, it is a voluntary act on the part of the voter as to

whether they want to accept the services of a ballot collector. If a voter chooses to have their ballot

collected by another person, they do not have to travel to a mailbox or polling site; this eliminates

travel costs, and during a pandemic, protects them from potential exposure to COVID-19.

22. A voter assistance ban effectively moves the polling place from someone’s front

porch to a point that may be quite distant and inaccessible to some people. If there is only polling

location for each county, the distance to in-person polling sites will be greatly increased for many

voters. Also, one polling place in each county will concentrate the entire in-person voting

population of that county into one location, potentially increasing the risk of infection. Voter

assistance bans significantly increase voter costs by exposing voters to potential COVID-19

infection and requiring voters to travel to a mailbox or a polling location.

23. Ballot collection in other states has often been utilized in low-income Hispanic

neighborhoods where people lack the time and financial resources to take time off work and travel

to a polling place or post office (Hendley. 2014; Nevarez. 2016; Democratic National Committee

v. Hobbs. 2020; Daley. 2020). For example, Hispanic groups in Arizona used ballot collection

extensively as a “means of outreach” before it was outlawed (Columbus and Copper. 2016).

Ballot collection has also taken place on Indian reservations to help voters overcome long

distances, poor roads, and limited ability to travel (Western Native Voice v. Stapleton. 2020;

Michels. 2020a, 2020b). Because ballot collection has often been popular in Hispanic

neighborhoods and Indian reservations, there have been charges of discrimination when voter


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assistance bans are proposed or implemented (Re. 2020; Los Angeles Times. 2018; Arizona

Independent News Network. 2014; Democratic National Committee v. Hobbs. 2020: 102).1

24. It is important to note that voter assistance bans prohibit legitimate voter assistance,

not just those that involve fraud, deception, intimidation, or bribery, all of which are prohibited by

other laws. The Nevada voter assistance ban prohibits assistance even when the voter desires

assistance and the collector acts in good faith and follows all voting laws to the letter. The 9th

Circuit made this point in a case on ballot collection in Arizona; the law didn’t just “forbid

fraudulent third-party ballot collection. It forbids non-fraudulent third-party ballot collection

(Democratic National Committee v. Hobbs. 2020: 91).

B. No Justification

25. The usual rationale provided for banning voter assistance is to prevent voter fraud

(Chaffetz. 2020; Blood and Ohlemacher. 2018; Morefield. 2018; The Federalist. 2018). However,

there is virtually no evidence that voter fraud is a problem in Nevada. The most complete

compendium of actual convictions for voter fraud is compiled by the conservative think tank, The

Heritage Foundation. Their total count of “proven instances of voter fraud” is 1,277, out of a data

bank that covers local, state, and federal elections beginning in the early 1980s (i.e. hundreds of

millions of votes). For Nevada, there are six cases; two involved voter registration, one involved

petition signatures, and three convictions were for illegal voting. None of these convictions

involved ballot collection. (Heritage Foundation. 2020). 2 In short, voter assistance bans take away

1 In the Arizona case of Democratic National Committee v Hobbs, the 9th Circuit concluded that the state’s criminalization of ballot collection would not have been enacted “without the motivating factor of racial discrimination” (2020: 102). 2 This absence of voter fraud is not limited to Nevada. For complete nation-wide analyses see: Chapter 2 of The Voting Wars, by Richard Hasen (2012); chapter 6 of Stealing Democracy, by Spencer Overton (2006); and The Myth of Voter Fraud, by Lorraine Minnite (2010). Also see: Urbina (26 Oct. 2010) and Levitt (2007). Even the U. S. Justice Department under President George W. Bush could not find evidence of significant voter fraud; see: Lipton and Urbina (12


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an important freedom exercised by millions of voters in other states—to assist a fellow voter in a

legal manner with their approval—for a rationale that cannot be substantiated.

VI. Conclusion

26. In the 2018 elections, turnout in Nevada was 48 percent; only eleven states had a

lower turnout rate (U. S. Election Assistance Commission. 2018: 6). If fully implemented, the

Secretary of State’s response to the COVID-19 pandemic has the potential to dramatically

decrease this already low turnout rate, especially for low-income people, minorities, and Native

people living on remote reservations. The political science literature makes it clear that such

changes have a negative impact on turnout because they create additional burdens for voters, and

those burdens are not distributed equally across the electorate. But with COVID-19, the calculus

of “voter costs” now has to include the threat of serious illness and possibly death. In sum, if the

state’s proposal is implemented, the lack of reasonable options for voting in-person in some

situations and the option to have someone assist a voter through ballot collection, there is a high

probability it will depress turnout. This will effectively deprive some groups of people, especially

Native Americans, of access to the ballot box.

27. The evidence that I have compiled for this report leads me to conclude that some

groups of voters, especially Native American voters, will be disadvantaged by the proposal to

close all polling places except one in each county, and the voter assistance ban; as a result, they

will face increased difficulty in accessing polling locations and voting by mail. If a voter cannot

take his/her ballot to a distant mailbox or polling location, and others are prohibited from assisting

April 2007).; Levitt (2007). One legal scholar calculated that the likelihood of voter fraud was more than 12 times less likely than being struck by lightning (Sobel 2014: 7). For a list of studies confirming the absence of widespread voter fraud, see: https://www.brennancenter.org/our-work/research-reports/debunking-voter-fraud-myth. The only significant instance of verifiable voter fraud involved a Republican candidate for the 9th Congressional District in North Carolina; see: Blinder. 2019: North Carolina v. Dowless. 2019.


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them by collecting and delivering that ballot, they effectively cannot vote; a ballot that is not

delivered is a vote that is denied.


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Berinsky, Adam. “The Perverse Consequences of Electoral Reform in the United States.” American Politics Research 33: 471-491.

Blinder, Alan. 2019. “Election Fraud in North Carolina Leads to New Charges for Republican Operative.” The New York Times. July 30.

Blood, Michael, and Stephen Ohlemacher. 2018. “Democratic Sweep in California Raises GOP Suspicion.” AP News. Nov. 30.

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Brady, Henry, John McNulty. 2011. “Turning Out to Vote: The Costs of Finding and Getting to the Polling Place.” American Political science Review 105 (1): 115-134.

Cegavske, Barbara. 2020. “Secretary Cegavske Announces Plan to Conduct the June 9, 2020 Primary Election by All Mail.” Press Release, March. 24.

Chaffetz, Jason. 2020. “Ballot Harvesting—California’s Model to Steal 2020.” Fox News. Sept. 15.

Columbus, Courtney, and Anna Copper. 2016. “Ballot Harvesting Law Could Impact Latinos and Seniors in General Election.” Cronkite News. May 10.

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Daley, David. 2020. “Coronavirus Could Normalize Voting by Mail. That Will Create Other Problems.” The Washington Post. Mar. 12.

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The Federalist. 2018. “How Ballot-Harvesting Became the New Way to Steal an Election.”Dec. 14. https://thefederalist.com/2018/12/14/ballot-harvesting-became-new-way-steal-election/


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Gerber, Alan, Donald Green, and Ron Sachar. 2003. “Voting May Be Habit-Forming: Evidence from a Randomized Field Experiment.” American Journal of Political Science. 47 (Issue 3): 540-550.

Gimpel, J. G., and J. E. Schuknecht. 2003. “Political Participation and the Accessibility of the Ballot Box.” Political Geography 22: 471-488.

Hansford, Thomas, and Brad Gomez. 2010. “Estimating the Electoral Effects of Voter Turnout.” American Political Science Review 104: 268-288.

Hasen, Richard (2012). The Voting Wars: From Florida 2000 to the Next Election Meltdown.Yale University Press.

Haspel, Moshe, and Gibbs Knotts. 2005. “Location, Location, Location: Precinct Placement and the Costs of Voting.” Journal of Politics 67: 560-573.

Hendley, Matthew. 2014. “Viral Video of ‘Ballot Stuffing’ in Phoenix Shows a Perfectly Legal Practice.” Phoenix New Times. Oct. 23.

Leighley, Jan, and Jonathan Nagler. 2014. Who Votes Now?: Demographics, Issues, Inequality, and Turnout in the United States. Princeton University Press.

Levitt, Justin. 2007. “The Truth About Voter Fraud.’ Brennan Center for Justice. https://www.brennancenter.org/sites/default/files/2019-08/Report_Truth-About-Voter-Fraud.pdf

Lien, Pe-te. 2000. “Who Votes in Multiracial America? An Analysis of Voting Registration and Turnout by Race and Ethnicity.” In: Black and Multiracial Politics in America, ed. by Yvette Alexander and Lawrence Hanks. NYU Press.

Lipton, Eric, and Ian Urbina (12 April 2007). “In 5-Year Effort, Scant Evidence of Voter Fraud.” The New York Times.

Los Angeles Times Editorial Staff. 2018. “Editorial: No, Republicans Didn’t Lose California Because of Ballot Harvesting. But the Practice is Concerning.” Los Angeles Times. Dec. 7.

McCool, Daniel. 2007. Native Vote: American Indians, The Voting Rights Act, and the Right to Vote. Cambridge University Press.

McCool, Daniel. The Most Fundamental Right: Contrasting Perspectives on the Voting Rights Act. 2012. Indiana University Press.

McNulty, John, Conor Dowling, and Margaret Ariotti. 2009. “Driving Saints to Sin: How Increasing the Difficulty of Voting Dissuades Even the Most Motivated Voters.” PoliticalAnalysis. 17 (Autumn): 435-455.

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Michels, Holly. 2020a. “Lawsuit: Ballot Collection Law Harms Native Voters.” HelenaIndependent Record. Mar. 12.

Michels, Holly. 2020b. “Clerk and recorder: Ballot Submission Act 'Voter Suppression'.” HelenaIndependent Record. Feb. 28.

Morefield, Scott. 2018. “‘Ballot Harvesting,’ California Dems’ Latest Election Stealing Tool.” Townhall. Dec. 3. https://townhall.com/columnists/scottmorefield/2018/12/03/ballot-harvesting-california-dems-latest-election-stealing-tool-n2536860

Nevada Revised Statutes. Sec. 293.330, Sec. 295.353.

Nevarez, Griselda. 2016. “Latino Activists Mobilize After Arizona Law Banning Ballot Collection.” NBC News. June 23.

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Sobel, Richard (2014). “The High Cost of ‘Free’ Photo Voter Identification Cards.” Charles Hamilton Hughes Institute for Race and Justice, Harvard University. June.

Solis, Jennifer. 2018. “Tribes Get Their Own Polling Places, Some for the First Time.” The Nevada Current, Oct. 31.

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Stewart, Charles. 2010. 2011. “Adding Up the Costs and Benefits of Voting by Mail.” ElectionLaw Journal 10 (#3): 297-301.

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APPENDIX A:LIST OF CASES FOR WHICH I SUBMITTED EXPORT REPORTS

> U. S. v. South Dakota. 615 NW 2d 590 Dist. Ct. SD (2000) > U.S. v. Blaine County. 157 F. Supp. 2d 1145 Dist. Ct. MT (2001) > Bone Shirt v. Hazeltine. 336 F.Supp.2d 976 Dist. Ct. SD (2004) > Cottier v. City of Martin. No. CIV. 2002-5021 Dist. Ct. SD (2005) > Koyukak v. Treadwell. Case No. 3:13-cv-00137-JWS Dist. Ct. AK (2014) > Navajo Nation v. San Juan County, Utah. Case No. 2:12-cv-00039-RJS-DPB. Dist. Ct.

UT (2016) > Brakebill v. Jaeger. Civ. 1: 16-CV-08 Dist. Ct. ND (2016) > Sanchez et. al. v. Cegavske. Case No. 3:16-cv-00523-MMD-WGC Dist. Ct. NV (2016) > Navajo Nation Human Rights Commission v. San Juan County, Utah. Case No. 2:16- cv00154-JNP-BCW Dist. Ct. UT (2017)> Voto Latino v. Hobbs. CV-05685-PHX-DWL. Dist. Ct. AZ (2019) > DSCC v. Simon. 2nd Jud. Dist. Minn. (Jan. 2020). > Western Native Voice v. Stapleton. Mont. 13th Jud. Dist. (March, 2020)

