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holding that ballot-access deadline was not narrowly tailored in context of the COVID-19 pandemic and Nevada's stay-at-home order and rejecting argument that extending time to collect signatures would prevent defendants from "not hav[ing] enough time to properly do their job .... There does appear to be enough time to do everything [d]efendants would normally do on an expedited timeline"
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Case No. 3:20-cv-00271-MMD-WGC
2020-05-29
FAIR MAPS NEVADA, et al., Plaintiffs, v. Barbara CEGAVSKE, in her official capacity as Nevada Secretary of State, et al., Defendants.
Adam Hosmer-Henner, Lucas Marshall Foletta, McDonald Carano Wilson, Reno, NV, for Plaintiffs. Gregory Louis Zunino, Craig A. Newby, Nevada State Attorney General's Office, Carson City, NV, for Defendant Barbara Cegavske. Mary-Anne M. Miller, Clark County District Attorney, Las Vegas, NV, for Defendant Registrar of Voters, Joseph P. Gloria. Herbert B. Kaplan, Wade Carner, Washoe County District Attorney's Office, Reno, NV, for Defendant Deanne Spikula. Craig R. Anderson, Brian R. Hardy, Marquis Aurbach Coffing, Las Vegas, NV, for Defendants Kristina Jakeman, Sadie Sullivan, Lacey Donaldson, Vanessa Stevens, Nichole Baldwin, Sandra Merlino, Tammi Rae Spero, Kathy Lewis, Linda Rothery, Lacinda Elgan, Lisa Lloyd, Lisa Hoehne, Christopher Nepper, Nikki A. Bryan. Jason D. Woodbury, Carson City District Attorney's Office, Benjamin R. Johnson, State of Nevada - Office of the Attorney General, Jeng Daw Yu, Carson City, NV, for Defendant Aubrey Rowlatt.
Adam Hosmer-Henner, Lucas Marshall Foletta, McDonald Carano Wilson, Reno, NV, for Plaintiffs.
Gregory Louis Zunino, Craig A. Newby, Nevada State Attorney General's Office, Carson City, NV, for Defendant Barbara Cegavske.
Mary-Anne M. Miller, Clark County District Attorney, Las Vegas, NV, for Defendant Registrar of Voters, Joseph P. Gloria.
Herbert B. Kaplan, Wade Carner, Washoe County District Attorney's Office, Reno, NV, for Defendant Deanne Spikula.
Craig R. Anderson, Brian R. Hardy, Marquis Aurbach Coffing, Las Vegas, NV, for Defendants Kristina Jakeman, Sadie Sullivan, Lacey Donaldson, Vanessa Stevens, Nichole Baldwin, Sandra Merlino, Tammi Rae Spero, Kathy Lewis, Linda Rothery, Lacinda Elgan, Lisa Lloyd, Lisa Hoehne, Christopher Nepper, Nikki A. Bryan.
Jason D. Woodbury, Carson City District Attorney's Office, Benjamin R. Johnson, State of Nevada - Office of the Attorney General, Jeng Daw Yu, Carson City, NV, for Defendant Aubrey Rowlatt.
ORDER
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE I. SUMMARY
The Court issues this order during the pandemic caused by the novel coronavirus SARS-CoV-2 that emerged at the end of 2019 ("COVID-19"). COVID-19 is central to Plaintiffs' challenge to a decision made by Defendant Barbara Cegavske, Nevada's Secretary of State ("the Secretary"). More specifically, Plaintiffs seek to place an initiative on the November 2020 ballot that would amend Nevada's State Constitution to create an independent redistricting commission in an effort to combat partisan gerrymandering. (ECF No. 1 at 1-4.) In light of COVID-19 and related stay-at-home orders, Plaintiffs asked the Secretary for an extension of the statutory deadline to submit the required signatures in support of their initiative, and a waiver of certain in-person requirements regarding the collection of signatures, but she refused, explaining she had no authority under the applicable statutes to grant their request. (Id. at 14.) This lawsuit followed.
The other Defendants are county elections officials across Nevada: Aubrey Rowlatt and Joseph P Gloria; and Kristina Jakeman, Sadie Sullivan, Lacey Donaldson, Vanessa Stevens, Nichole Baldwin, Sandra Merlino, Tammi Rae Spero, Kathy Lewis, Linda Rothery, Lacinda Elgan, Lisa C. Lloyd, Lisa Hoehne, Christopher Nepper, and Nikki Bryan (collectively, "Rural County Defendants"). (ECF No. 1 at 4-6.)
Plaintiffs are Fair Maps Nevada, a Nevada political action committee ("Fair Maps"), Sondra Cosgrove, Douglas Goodman, and Robert MacDonald. (ECF No. 1 at 2.)
Before the Court is Plaintiffs' motion for a preliminary injunction, asking the Court to compel the Secretary to extend the deadline and waive the in-person requirements ("PI Motion"). (ECF No. 2.) The Court held a telephonic hearing on the PI Motion on May 21, 2020 (the "Hearing"). (ECF No. 38.) Nevada's Governor's emergency restrictive orders effectively barred Plaintiffs from circulating their initiative petition for signature for a period of about six weeks. Such circumstances compel a finding that Plaintiffs have shown they are likely to prevail on the merits of their as applied challenge as to the statutory provision setting the deadline, but not the in-person requirements—and as further explained below—the Court will grant the PI Motion in part, and deny it in part.
The Secretary filed a response. (ECF No. 24.) So did Rural County Defendants. (ECF No. 19.) Defendants Rowlatt and Gloria joined the Rural County Defendants' response. (ECF Nos. 27, 28.) Intervenor-Defendants Nevada Resort Association PAC and Leonard Jackson also filed a response. (ECF No. 15-3.) Plaintiffs filed a reply. (ECF No. 35.)
II. BACKGROUND
The following facts are taken from the Complaint and exhibits attached thereto as well as the briefing and evidence submitted concerning the PI Motion. The Court begins by briefly outlining the state constitutional and statutory scheme that governs Plaintiffs' attempt to get its initiative petition to amend Nevada's constitution on the November 2020 ballot.
A. Nevada's Ballot Initiative Scheme
The people of Nevada reserved their right to amend Nevada's constitution through initiative petitions when they enacted it. See Nev. Const. art. XIX, § 2(1). But a certain percentage of Nevada voters must support a proposed constitutional amendment in a ballot initiative for it to appear on the general election ballot for approval by a majority of Nevada's citizens. See Nev. Const. art. XIX, § 2. More specifically:
"An initiative petition shall be in the form required by section 3 of this article and shall be proposed by a number of registered voters equal to 10 percent or more of the number of voters who voted at the last preceding general election in not less than 75 percent of the counties in the state, but the total number of registered voters signing the initiative petition shall be equal to 10 percent or more of the voters who voted in the entire state at the last preceding general election."
Id. § 2(2). As mentioned, Fair Maps seeks to propose a constitutional amendment through a ballot initiative. (ECF No. 1.) That means that Fair Maps must collect 97,598 signatures to get its proposed initiative on the November 2020 ballot. (ECF No. 2 at 4.)
Proponents of a petition that garners the required minimum number of signatures must send a copy of their petition to the Secretary "not less than 90 days before any regular general election at which the question of approval or disapproval of such amendment may be voted upon by the voters of the entire state[ ]"—i.e. , to get the petition on the ballot in the fall. Nev. Const. art. XIX, § 2(4). The proponents must also stop circulating the petition at that time, or earlier if required by statute. See id.
The Nevada Legislature has enacted such a statute, which requires proponents of an initiative proposing a constitutional amendment submit documents to all of Nevada's county clerks by the fifteenth day after the primary election before they may be submitted to the Secretary (the "Deadline"). See NRS § 295.056(3). Proponents must specifically submit to each county clerk, on the same day, the "document or documents which were circulated for signature within the clerk's county." NRS § 295.056(1), (5). The petition may consist of more than one document. See NRS § 295.0575. These documents are intended to allow each county clerk to verify that the proponents of the petition collected a sufficient number of signatures in their county, and that they actually collected the number of signatures they claimed to acquired. See NRS § 295.056(3). This year, the Deadline is June 24, 2020. (ECF No. 2 at 4.)
As particularly pertinent here, each petition document submitted to each county clerk for verification must include "an affidavit executed by the circulator thereof," stating, in pertinent part: "(1) "[t]hat the circulator personally circulated the document [...; and] (5) "[t]hat all the signatures were affixed in the circulator's presence." NRS § 295.0575(1), (5).
The Court collectively refers to these requirements as the "In-Person Requirements" in this order.
Once the county clerks have received the required documents from the initiative petition's proponents, they have four business days to transmit the total number of signatures gathered to the Secretary, and then another nine business days to verify the signatures collected—and another twelve business days to count signatures if it appears the total number of signatures collected is between 90% and 100% of the total amount required. See NRS § 295.056(3) ; NRS § 293.1276(1) (providing the deadline for provision of count to Secretary); NRS § 293.1277(1) (providing deadline for verification); NRS § 293.1279(3) (providing deadline for conducting further count verification). (See also ECF No. 24 at 19-20.)
An initiative petition is deemed filed "as of the date on which the Secretary of State receives certificates from the county clerks showing the petition to be signed by the requisite number of voters of the State." NRS § 293.1279(6). Assuming proponents of the initiative petition have gathered enough signatures, the Secretary must then have the full text of the proposed constitutional amendment, along with any explanatory text that will appear on the ballot, published in newspapers of general circulation in each county in advance of the general election, at least three times. See Nev. Const. art. XIX, § 2(4). A majority of Nevada's voters must then vote in favor of the proposed constitutional amendment in two successive general elections—and the Secretary must ensure the text of the amendment is exactly the same in both elections for it to become part of Nevada's constitution. See id. After the second successful vote, the proposed constitutional amendment "shall, unless precluded by subsection 5 or 6, become a part of this constitution upon completion of the canvass of votes by the supreme court." Id.
B. The Stay-at-Home Orders
Nevada Governor Steve Sisolak took escalating and then de-escalating action in response to the spread of COVID-19 in Nevada. On March 12, 2020, he declared a state of emergency. (ECF No. 1-12.) On March 20, 2020, he ordered the closure of all non-essential businesses in the state. (ECF No. 1-13 at 2-3.) On March 30, 2020, he issued the "Stay at Home Order," ordering all citizens to stay in their homes until he lifted the order, and forbidding group gatherings outside the home. (See generally id. ) On May 7, 2020, though effective May 9, 2020, Governor Steve Sisolak lifted the Stay at Home order, though he strongly encouraged Nevada citizens to stay at home, limited gatherings to ten people or less, and imposed public health restrictions. See Nevada Governor Steve Sisolak, Declaration of Emergency Directive 018 , at § 7 (last visited May 28, 2020). Thus, Nevadans were required to stay at home from March 30 through May 9, or approximately six weeks. Moreover, none of the orders include a carve-out for activities protected by the First Amendment, such as collecting signatures to support a ballot initiative. (See, e.g. , ECF No. 1-13 at 3-4.)
Available at http://gov.nv.gov/News/Emergency Orders/2020/2020-05-07 - COVID-19 Declaration of Emergency Directive 018 - Phase One Reopening (Attachments)/.
C. Plaintiffs' Proposed Ballot Initiative
Fair Maps filed Initiative Petition C-02-2019 on November 4, 2019. (ECF No. 2 at 3.) "If enacted, the Initiative will amend the Nevada State Constitution to provide for an independent redistricting commission to map electoral districts for the Nevada Senate, Assembly and U.S. House of Representatives." (Id. ) Intervenor-Defendants brought a lawsuit challenging the legal sufficiency of the description of the initiative's effect in late November 2019. (Id. ) Fair Maps changed the description in response to that lawsuit, and filed Amended Initiative Petition C-02-2019 (the "Initiative") on January 7, 2020. (Id. at 3-4.) Fair Maps and Intervenor-Defendants continue to litigate the Initiative at the Nevada Supreme Court. (Id. at 4.) Meanwhile, Fair Maps began collecting signatures in support of the Initiative. (Id. ) Plaintiffs collected approximately 10,000 signatures between the middle of January and early March 2020. (ECF No. 35-2 at 5.) Fair Maps began consulting with political professionals experienced with signature gathering, and intended to hire a professional signature-gathering consultant in early April. (Id. ) Meanwhile, in early 2020, COVID-19 began to spread across the United States, prompting escalating response measures from municipal, state, and the federal government, including the Stay at Home order and related orders discussed above. (ECF No. 2 at 4-6.) Governor Sisolak's order closing non-essential businesses closed many of the places groups like Fair Maps would traditionally collect signatures, and imposed social distancing restrictions that make it very difficult to collect signatures in person. (Id. at 6-7.) It also prompted Fair Maps to stop collecting signatures. (ECF No. 35-2 at 5.)
Only Rev. Jackson did (ECF No. 35 at 15), but the Court will refer to him and Intervenor-Defendants interchangeably throughout this order for simplicity.
Plaintiffs filed this evidence for the first time with their reply. However, the Court will consider it because it responds to Defendants' arguments raised in opposition to the PI Motion, and Defendants (and Intervenor-Defendants) had a chance to address it at the Hearing. Nobody disputes the factual accuracy of this information.
This leads to the core of Plaintiffs' argument—that COVID-19 and these responsive restrictions have made collecting signatures in-person prohibitive and even dangerous—so the Secretary should extend the Deadline and waive the In-Person Requirements. (ECF No. 2 at 7-8.) Plaintiffs submitted affidavits from five people associated with Fair Maps to substantiate this argument. (ECF Nos. 2-1, 2-2, 2-3, 2-4, 2-5.) Laura Hale also submitted a supplemental declaration with Plaintiffs' reply. (ECF No. 35-2.) As noted above, Plaintiffs asked the Secretary to extend the Deadline by at least six weeks and waive the In-Person Requirements by letter on April 20, 2020. (ECF No. 2 at 10.)
D. The Secretary's Response and Her Authority
The Secretary responded with a letter on the same day denying Fair Maps' requests ("Denial Decision"). (ECF No. 1-26.) She wrote, "[b]ecause we are unaware of any authority by which the Secretary of State can modify the requirements of NRS 295.056, 295.0575, 293.12758, whether during a pandemic, natural disaster, or otherwise, we are unable to grant your request." (Id. at 2.)
Plaintiffs argue that she could have answered differently in pointing out that she decided to conduct the June 9, 2020 primary election entirely by mail. (ECF No. 2 at 8-9.) Plaintiffs also note the Secretary has suspended all in-person transactions in her office in response to COVID-19 concerns. (Id. at 9.) They further argue that she could have answered differently in light of fact that election officials and courts in other states have decided to extend, or ordered the extension of, deadlines similar to the Deadline at issue here. (Id. at 9-10; see also ECF No. 35-1 (consisting of the Governor of Colorado's executive order extending certain similar deadlines in light of COVID-19).)
In addition, Plaintiffs argue the Secretary could have exercised some discretion to grant their request in highlighting that the Court recognized the Secretary has some discretionary authority over elections in another recent decision, Paher v. Cegavske , Case No. 3:20-cv-00243-MMD-WGC, 457 F. Supp. 3d 919, 930–34 – ––––, (D. Nev. Apr. 30, 2020). (ECF No. 2 at 3.) To inform the Court's legal discussion farther below, the Court will describe the Secretary's discretionary authority as it did in Paher. In Paher , the Court explained that the Nevada Legislature has authorized the Secretary to enact voting regulations under NRS § 293.124. See Paher , 457 F. Supp. 3d at 930–31, . The section provides:
1. The Secretary of State shall serve as the Chief Officer of Elections for this State. As Chief Officer, the Secretary of State is responsible for the execution and enforcement of the provisions of title 24 of NRS and all other provisions of state and federal law relating to elections in this State.
2. The Secretary of State shall adopt such regulations as are necessary to carry out the provisions of [the election laws under Title 24—NRS Chapters 293–306].
NRS § 293.124(1)-(2). Further, NRS § 293.247 pronounces:
1. The Secretary of State shall adopt regulations, not inconsistent with the election laws of this State, for the conduct of primary, general, special and district elections in all cities and counties. Permanent regulations of the Secretary of State that regulate the conduct of a primary, general, special or district election and are effective on or before the last business day of February immediately preceding a primary, general, special or district election govern the conduct of that election.
...
3. The regulations must prescribe: [inter alia ]
(j) Such other matters as determined necessary by the Secretary.
4. The Secretary of State may provide interpretations and take other actions necessary for the effective administration of the statutes and regulations governing the conduct of primary, general, special and district elections in this State.
(Emphasis added.) See also Paher , 457 F. Supp. 3d at 930–31, .
III. LEGAL STANDARD
Federal Rule of Civil Procedure 65 governs preliminary injunctions. " ‘An injunction is a matter of equitable discretion’ and is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’ " Earth Island Inst. v. Carlton , 626 F.3d 462, 469 (9th Cir. 2010) (quoting Winter v. Nat. Res. Def. Council , 555 U.S. 7, 22, 32, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ). This relief is "never awarded as of right." Alliance for the Wild Rockies v. Cottrell ("Alliance "), 632 F.3d 1127, 1131 (9th Cir. 2011) (citation omitted). To qualify for a preliminary injunction, a plaintiff must satisfy four requirements: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm; (3) that the balance of equities favors the plaintiff; and (4) that the injunction is in the public interest. See Winter , 555 U.S. at 20, 129 S.Ct. 365. A plaintiff may also satisfy the first and third prongs by showing serious questions going to the merits of the case and that a balancing of hardships tips sharply in plaintiff's favor. See Alliance , 632 F.3d at 1135 (holding that the Ninth Circuit's "sliding scale" approach continues to be valid following the Winter decision).
On the merits-success prong, "the burdens at the preliminary injunction stage track the burdens at trial." Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal , 546 U.S. 418, 429, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006).
IV. DISCUSSION
Plaintiffs bring "six claims relating to the constitutionality of the Secretary's failure to extend the deadline for submitting the Initiative for verification no later than June 24, 2020 and six claims relating to the Secretary's interpretation that NRS § 295.0575 will not accommodate the use of electronic means to circulate and sign the Initiative." (ECF No. 2 at 12.) Plaintiffs generally allege the Secretary's Denial Decision violates their rights under the First and Fourteenth Amendments to the U.S. Constitution, and "various provisions of the Nevada Constitution, including Article 9, Section 1 (right to speech), Article 19, Section 2(1) (right to circulate an initiative petition), and Article 2, Section 1 (right to vote)." (Id. at 13.) Defendants and Intervenor-Defendants raise threshold issues that the Court will address before turning to the merits.
A. Standing
Intervenor-Defendants argue that Plaintiffs lack standing to assert their claims. (ECF No. 15-3 at 3-6.) The Secretary also alluded to a standing challenge in arguing that there are "unanswered questions in this case about causation[,]" and then clarified she also challenged Plaintiffs' standing at the Hearing. (ECF No. 24 at 23.) As further explained below, the Court finds Plaintiffs have standing.
" Article III of the Constitution limits federal-court jurisdiction to ‘Cases’ and ‘Controversies.’ " Massachusetts v. EPA , 549 U.S. 497, 516, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). "To satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc. , 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990).
Intervenor-Defendants more specifically argue that Plaintiffs cannot establish causation because Plaintiffs have not presented evidence showing they attempted to circulate their Initiative petition, but were "stymied in doing so because of the COVID-19 outbreak." (ECF No. 15-3 at 4.) In response, Plaintiffs point to the declaration of Laura Hale attached to their reply brief, where she states that Plaintiffs were collecting signatures until early March. (ECF No. 35 at 17.) Plaintiffs argue this is sufficient evidence to reject Intervenor-Defendants' standing argument. (Id. ) The Court agrees with Plaintiffs.
Plaintiffs have presented evidence showing they were collecting signatures until COVID-19 and the Stay at Home Order made it impossible to collect signatures in person. (ECF No. 35-2.) Moreover, the Court is persuaded by Plaintiffs' argument that, given the circumstances, Plaintiffs will not be able to get their initiative on the ballot unless the Secretary gives them an extension of the Deadline or waives the In-Person Requirements. (ECF No. 35 at 17.)
And that overlaps with Intervenor-Defendants' other main argument, which is that Plaintiffs have not shown their alleged harm is redressable because they have not shown what efforts they have taken to qualify their petition, or explained how electronic signatures would work. (ECF No. 15-3 at 6.) Plaintiffs respond that they have presented evidence showing they collected about 10,000 signatures in two months (so support for the Initiative is substantial), are willing to work with the Secretary to develop an electronic means of circulating their petition, and that people are willing to support the Initiative. (ECF No. 35 at 19.) Said otherwise, Plaintiffs argue the Secretary could redress their alleged injury. If the Secretary were willing to extend the Deadline or waive the In-Person Requirements—or the Court were to order her to—logically, Plaintiffs would have a much better chance of meeting the signature threshold to get their Initiative on the ballot in November. Thus, Plaintiffs' alleged harm—not getting their Initiative on the ballot—is redressable by the Secretary.
Intervenor-Defendants also specifically challenge the standing of the individual plaintiffs. (ECF No. 15-3 at 5; see also ECF No. 35 at 16-19 (responding to Intervenor-Defendants' standing arguments directed at Plaintiffs other than Fair Maps).) However, for the reasons explained above, the Court finds that, at a minimum, Fair Maps has standing to bring this case. The Court therefore declines to dismiss this case for lack of standing. See Dep't of Commerce v. U.S. House of Representatives , 525 U.S. 316, 330, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999) (stating a case is justiciable so long as one plaintiff has standing).
B. Subject-Matter Jurisdiction
Both the Secretary and the Rural County Defendants argue the Court should dismiss this case for lack of subject-matter jurisdiction. (ECF Nos. 19 at 6-7, 24 at 14-15.) Defendants in gist contend that Plaintiffs' claims are, in substance, state-law claims because the right to amend the Nevada Constitution comes from that constitution, and the requirements Plaintiffs challenge here are all enshrined in Nevada law. (Id. ) Defendants therefore argue this case should be in front of a Nevada court.
While Defendants may well be correct that, so characterized, a state court may be better situated to consider the relief Plaintiffs request, the Court cannot ignore Plaintiffs' Complaint, which repeatedly invokes federal-question jurisdiction. (ECF No. 1 at 6 (alleging federal-question jurisdiction), 15-16 (alleging violation of the First and Fourteenth Amendments of the U.S. Constitution), 17-18 (alleging infringement of due process rights under the U.S. Constitution via 42 U.S.C. § 1983 ), 18-19 (alleging an undue burden on the Plaintiffs' right to vote under the First and Fourteenth Amendments); see also id. at 21, 22-23, 24-26, 27-28.) Indeed, Defendants' subject-matter jurisdiction argument ignores a significant portion of Plaintiffs' Complaint seeking relief under the U.S. Constitution—including the prayer for relief, which specifically requests a declaration that the statutes providing the Deadline and the In-Person Requirements are unconstitutional as applied here. (ECF No. 1 at 29.) Defendants do not get to choose what this case is about. Plaintiffs do. See, e.g., Hawaii ex rel. Louie v. HSBC Bank Nevada, N.A. , 761 F.3d 1027, 1040 (9th Cir. 2014) (mentioning "the general rule that the plaintiff is the master of a complaint for jurisdictional purposes.").
Moreover, Defendants' subject-matter jurisdiction argument ignores the applicable test. (ECF Nos. 19 at 6-7, 24 at 14-15.) "[A] federal court may dismiss a federal question claim for lack of subject matter jurisdiction only if: (1) ‘the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction’; or (2) ‘such a claim is wholly insubstantial and frivolous.’ " Leeson v. Transamerica Disability Income Plan , 671 F.3d 969, 975 (9th Cir. 2012).
The Court cannot say Plaintiffs' claims under the U.S. Constitution are frivolous or made solely for the purpose of obtaining jurisdiction. See Fight for Nevada v. Cegavaske , Case No. 2:20-cv-00837-RFB-EJY, 460 F.Supp.3d 1049, 1053–54, (D. Nev. May 15, 2020) (applying the same test and rejecting a very similar jurisdictional argument in a case where proponents of a campaign to recall Nevada's Governor challenged the Secretary's decision not to grant them a deadline extension to collect signatures in light of COVID-19). As further discussed below, the Court finds them meritorious in part. In addition, all parties rely on other federal court cases dealing with similar issues, and several, if not all, of those courts found as-applied constitutional challenges to state elections statutes similar to those Plaintiffs make here nonfrivolous. See id. ; see also Thompson v. DeWine , Case No. 2:20-CV-2129, 461 F.Supp.3d 712, (S.D. Ohio May 19, 2020) (finding as-applied First Amendment challenge to Ohio statutes regulating the process of amending Ohio's constitution similar to those at issue here meritorious); Esshaki v. Whitmer , Case No. 2:20-CV-10831-TGB, 455 F.Supp.3d 367, (E.D. Mich. Apr. 20, 2020) (same as to Michigan laws regulating the collection of signatures for political candidacy), motion for relief from judgment denied , 456 F.Supp.3d 897, (E.D. Mich. Apr. 25, 2020) ; Esshaki v. Whitmer [6th Cir.] , Case No. 20-1336, 813 Fed.Appx. 170, 171–72, (6th Cir. May 5, 2020) (affirming the Esshaki district court's likelihood of success on the merits analysis); but see Thompson v. Dewine [6th Cir.] , 959 F.3d 804 (6th Cir. 2020) (staying the district court's injunction in Thompson , but not dismissing the case for lack of subject-matter jurisdiction); Arizonans for Fair Elections v. Hobbs , Case No. CV-20-00658-PHX-DWL, 454 F.Supp.3d 910, 931–32, (D. Ariz. Apr. 17, 2020) (dismissing case similar to this one for lack of standing and providing a rationale similar to the rationale Defendants provide here in their subject-matter jurisdiction argument). The fact that other federal courts are currently wrestling with constitutional issues similar to those presented by Plaintiffs in this case constitutes further indicia that Plaintiffs' claims under the U.S. Constitution are not frivolous.
The Court also notes the Secretary urged the Court to consider this decision in part because "the District of Nevada endeavors to maintain consistency and uniformity in the application of the law." (ECF No. 41 at 2.)
In sum, the Court finds it has subject matter jurisdiction.
The Court will also deny the Secretary's motion to dismiss because the Court is rejecting this lack of subject matter jurisdiction argument—and this argument is the sole basis for dismissal raised by the Secretary in her motion to dismiss. (ECF No. 25 at 9-10, 14-15.)
C. ‘Under Color of Law’
The Secretary and the Rural Defendants raised another threshold issue both in their briefing and at the Hearing that is best conceptualized as an argument that the Secretary's Denial Decision was not an action taken "under color of law" for purposes of 42 U.S.C. § 1983. (ECF Nos. 19 at 12-15, 24 at 14.) The Rural Defendants use the catchy phrasing for this argument that a "virus cannot make an otherwise constitutional law unconstitutional[.]" (ECF No. 19 at 12.) In gist, these defendants appear to raise a threshold argument—that Plaintiffs' constitutional claims are noncognizable because COVID-19 is the primary reason they have not been able to collect signatures, and COVID-19 is not state action. (ECF Nos. 19 at 12-15, 24 at 14.)
The " ‘under color of law’ requirement under § 1983 is the same as the Fourteenth Amendment's ‘state action’ requirement." Chudacoff v. Univ. Med. Ctr. of S. Nevada , 649 F.3d 1143, 1149 (9th Cir. 2011) (citation omitted). And Plaintiffs use § 1983 as the hook to bring their First Amendment claims applied to Nevada through the Fourteenth Amendment that are the focus of Plaintiffs’ PI Motion. (See generally ECF Nos. 1, 2.) This is all to say that the Court understands Defendants to have raised the threshold challenge that the Secretary's Denial Decision was not made "under color of law" as required by § 1983. See West v. Atkins , 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) ("To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.").
The parties crystallized their positions on this argument at the Hearing. Specifically, the Secretary argued at the Hearing that her Denial Decision cannot constitute an action taken under color of state law because the applicable state statutes gave her no discretion to grant Plaintiffs' requested relief, and that her Denial Decision was "manufactured state action" at best. However, the Secretary did not offer any caselaw to support the propositions that: (1) perfect compliance with a state law giving a state official no discretion to grant requested relief cannot be an action taken under color of state law for § 1983 purposes; or that (2) there is a difference between state action and manufactured state action.
The Court was unable to locate any caselaw to support these two propositions in its own research either—probably because none exists. As to the first proposition, the Court finds the Secretary's argument unpersuasive. "The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ " West , 487 U.S. at 49, 108 S.Ct. 2250 (citation omitted). And "generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law." Id. at 50, 108 S.Ct. 2250. Here, there is no real dispute as to whether the Secretary was acting in her official capacity when she sent the letter denying Plaintiffs' request—she was—and even the Secretary argues that, in sending that letter, she was exercising her responsibilities pursuant to state law.
Moreover, if an action taken by a state official prohibited by state law is still considered under color of state law, then an action required by state law must be. See Wright and Miller , Federal Practice and Procedure § 3573.2, Section 1983 Actions—Scope of Action: Elements of Claim, Remedies , 13D Fed. Prac. & Proc. Juris. § 3573.2 (3d ed.) (footnote omitted) ("[A]n action can be under color of state law even though it has not been authorized—and indeed is prohibited—by the state."). The treatise goes on to state it is "rarely problematic" to determine if an action was taken under color of state law, "when acts are taken by state or local officers exercising their authority or appearing to exercise their authority." Id. And that is the case here. See, e.g. , NRS § 293.124 ("[T]he Secretary of State is responsible for the execution and enforcement of the provisions of title 24 of NRS and all other provisions of state and federal law relating to elections in this State."). Thus, the Court finds that the Secretary's responsive letter denying Plaintiffs' request (ECF No. 1-26) constitutes an action taken under color of state law as required by § 1983.
As to the second proposition, the Court is unpersuaded there is any meaningful distinction between ‘state action’ and ‘manufactured state action.’ To the extent the Secretary was trying to argue the Secretary did not act under color of state law here because she responded to a letter from Plaintiffs, instead of writing the initial letter, the Court was also unable to locate any legal support for that being a meaningful distinction.
D. Failure to Join a Necessary Party
Defendants and Intervenor-Defendants also argued at the Hearing that Plaintiffs should have sent their requests for an extension of the Deadline and a waiver of the In-Person Requirements to the Governor instead of the Secretary, and should have joined the Governor as a Defendant in this lawsuit.
The Court addresses this argument as a threshold issue because it can be construed as an argument for dismissal for failure to join a necessary party under Federal Rule of Civil Procedure 12(b)(7). See Fed. R. Civ. P. 12(b)(7) (providing that a defendant may assert the defense of "failure to join a party under Rule 19" by motion).
There are two aspects to Defendants and Intervenor-Defendants' argument as presented at the Hearing. First, they argued the Governor of Nevada is a necessary party because Plaintiffs assert they were unable to collect signatures because of the Stay at Home Order and related orders, so Plaintiffs should be challenging the Stay at Home order. Plaintiffs responded they were not challenging the Stay at Home order or related orders, and even agreed those orders were prudent in terms of protecting public health. Second, Defendants and Intervenor-Defendants argued Plaintiffs should have sued the Governor because the plaintiffs in Esshaki and Thompson did. Plaintiffs responded that they were not required to sue the Governor merely because the plaintiffs did in those other cases, and instead pointed to Nevada law putting the Secretary squarely in charge of elections, reiterated that they were only challenging the Secretary's Denial Decision, explained the Secretary would be the person tasked with granting them the relief they sought in any event, and made the practical argument that if the Court were to dismiss this case for failure to join the Governor, Plaintiffs would immediately name him in an amended complaint, and the parties would be back before the Court.
The Court finds Plaintiffs' arguments more persuasive, and more in line with Rule 12(b)(7). That rule requires the Court look to Rule 19, which provides that a necessary party is one who is necessary for the Court to accord complete relief between the parties, claims an interest in the relief sought by the parties, or who is situated such that not joining them would substantially impair their or an existing party's interest. See Fed. R. Civ. P. 19(a)(1). As Plaintiffs argue, the Governor does not fit those criteria. And as Plaintiffs also argued at the Hearing, because the Secretary is the filing officer for constitutional amendments under Nevada's constitution, Nev. Const. art. XIX, § 2, and is tasked with executing all elections laws in Nevada, NRS § 293.124 —and the Rural County Defendants are the parties who help administer the election in each county—the parties necessary to accord Plaintiffs the complete relief they seek here are already before the Court. Moreover, the Court does not see how declining to force joinder of the Governor would impair any party's interest, and neither Defendants nor Intervenor-Defendants articulated any such impairment at the Hearing. In sum, the Court is unpersuaded it should dismiss this case for failure to join a necessary party. Having addressed all of the threshold issues raised by Defendants and Intervenor-Defendants, the Court will move on to the merits of Plaintiffs' PI Motion.
The Court assumes without deciding the Governor could have issued an executive order that would effectively grant Plaintiffs the relief they seek here, as evidenced by Plaintiffs' proffer of an executive order promulgated by the Governor of Colorado extending a deadline similar to the Deadline, and waiving requirements similar to the In-Person Requirements. (ECF Nos. 35 at 3, 35-1; see also ECF No. 24 at 8 n.1 ("While the Governor has emergency powers pursuant to NRS Chapter 411, which arguably includes the power to modify statutory deadlines under appropriate circumstances, the Governor is not a party to this case.").) It is not clear why Plaintiffs did not ask for exemptions from the Governor. However, that is of no moment. The Court's role is simply to say what the law is when asked. See Marbury v. Madison , 5 U.S. 137, 177, 1 Cranch 137, 2 L.Ed. 60 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is."). "So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case." Id. at 178. This is basically the situation Plaintiffs have presented to the Court to resolve—they claim to have identified a conflict between Nevada's laws and the U.S. Constitution as applied to them during the COVID-19 pandemic. It is the Court's job to determine which of the conflicting rules proffered by the parties governs the outcome of this case. Indeed, "[t]his is of the very essence of judicial duty." Id. The Court will therefore not take a threshold exit ramp and instead put its foot down, heading straight for the collision between Nevada law and the U.S. Constitution Plaintiffs claim to have discovered.
E. The Merits of Plaintiffs' PI Motion
Plaintiffs assert an as-applied challenge to the constitutionality of the statutes providing the Deadline and the In-Person Requirements. (ECF No. 35 at 7-9; ECF No. 1 at 29.) They argue the Secretary's decision not to extend the Deadline and construe the In-Person Requirements differently than she did violated their First Amendment rights under the factual circumstances created by the combination of the COVID-19 pandemic and the Stay at Home Order—because her decision makes it impossible for their Initiative to appear on the November ballot. (Id. at 2-3.) Having framed Plaintiffs' core argument, the Court will first address their likelihood of success on the merits and whether they have suffered irreparable harm together, and then address the public interest and balancing of the equities prongs together. See Winter , 555 U.S. at 20, 129 S.Ct. 365 (providing these are the four factors the court must consider in deciding whether to grant the PI Motion).
1. Likelihood of Success on the Merits and Irreparable Harm
Defendants dispute the framework that applies to the Court's analysis, and proffer different government interests in support of the Secretary's decision to strictly construe the statutes providing for the Deadline and the In-Person Requirements. (See, e.g. , ECF No. 24 at 10-20.) Thus, to evaluate Plaintiffs' likelihood of success on the merits, the Court will first address the applicable framework, and then the parties' arguments as to the Deadline and the In-Person Requirements. a. Framework
As mentioned above during the under color of law discussion, Defendants, but especially the Rural County Defendants, argue that Plaintiffs are unlikely to succeed on the merits because "[a] virus cannot make an otherwise constitutional law unconstitutional." (ECF No. 19 at 12.) But that argument appears merely to misunderstand that Plaintiffs are bringing an as-applied constitutional challenge to the Nevada statutes that provide the Deadline and the In-Person requirements. As Plaintiffs argue in reply, "that the application of the statute at issue may have been upheld previously under different circumstances does not resolve the question of their constitutionality here—as applied during the midst of a historical pandemic." (ECF No. 35 at 7-8 (citing Hoye v. City of Oakland , 653 F.3d 835, 857 (9th Cir. 2011) (noting that "[a] paradigmatic as-applied attack ... challenges only one of the rules in a statute, a subset of the statute's applications, or the application of the statute to a specific factual circumstance, under the assumption that a court can ‘separate valid from invalid subrules or application.’ ")) (citation omitted).) The Court is convinced it must consider the constitutionality of the applicable statutes as applied to Plaintiffs during the COVID-19 pandemic. As Plaintiffs have articulated their challenge here, COVID-19 and the Stay at Home Order constitute the factual circumstances under which the Secretary denied Plaintiffs' request. Thus, the Court rejects the Rural County Defendants' argument as either a misstatement of the law, or reflecting a misunderstanding of Plaintiffs' theory of their case—and will not further address it as to Plaintiffs' likelihood of success on the merits. But see Thompson [6th Cir.] , 959 F.3d at 806-07, 810-11 (contradictorily stating that "[o]ur Constitution, of course, governs during both good and challenging times[,]" but then going on to state: "Moreover, just because procuring signatures is now harder (largely because of a disease beyond the control of the State) doesn't mean that Plaintiffs are excluded from the ballot. And we must remember, First Amendment violations require state action.").
The parties understandably dispute the framework that applies to the Court's likelihood of success on the merits analysis because Plaintiffs' proffered framework and corresponding burdens make it easier for them to show they are likely to prevail on the merits than Defendants and Intervenor-Defendants' proffered frameworks would. (ECF Nos. 15-3 at 7-10, 19 at 10-15, 24 at 10-13, 35 at 3-6.) However, all parties discuss Angle v. Miller , 673 F.3d 1122 (9th Cir. 2012), and seem to agree that case provides the framework here. (ECF Nos. 15-3 at 17-10, 19 at 10-15, 24 at 10-13, 35 at 3-6.) The Court also agrees that Angle provides the applicable framework.
In Angle , the Ninth Circuit took what is basically the Anderson-Burdick framework and applied it to the specific context of Nevada's initiative process for amending the Nevada Constitution. However, while this case challenges the Deadline and In-Person Requirements created by statutes that effectively implement, and add to, the initiative process provided for in the Nevada Constitution, Angle addressed a facial constitutional challenge (under the U.S. Constitution) to the so-called "All-Districts Rule" embedded in the Nevada Constitution itself. See 673 F.3d at 1126-27. While not directly on point, Angle nonetheless provides the best framework for evaluating the constitutionality of the Deadline and In Person Requirements because it speaks directly to the application of the First Amendment to Nevada's process for amending Nevada's constitution through ballot initiatives. Angle is therefore more directly applicable to this case than the more general Anderson-Burdick framework. This is in part because—as the Secretary points out—this case is not exactly about voting rights, but rather the "process for qualifying an initiative proposal to appear on the ballot before anyone could cast a vote." (ECF No. 24 at 3.) See also Angle , 673 F.3d at 1130 ("Votes and petition signatures are similar in some respects, ... but ballot access requirements and elections serve different purposes.") (internal citations omitted).
However, Angle is confusing. While the Ninth Circuit stated in Angle "[t]here is no First Amendment right to place an initiative on the ballot[,]" Id. at 1133, it went on to characterize the right to circulate initiative petitions as "core political speech" and explain that there were two scenarios in which even nondiscriminatory ballot-access provisions could violate the First Amendment rights of their proponents. Id. Regardless, and as most pertinent here, the Ninth Circuit wrote:
"as applied to the initiative process, we assume that ballot access restrictions
place a severe burden on core political speech, and trigger strict scrutiny, when they significantly inhibit the ability of initiative proponents to place initiatives on the ballot. This is similar to the standard we apply to ballot access restrictions regulating candidates. In that setting, we have held that ‘the burden on plaintiffs' rights should be measured by whether, in light of the entire statutory scheme regulating ballot access, ‘reasonably diligent’ candidates can normally gain a place on the ballot, or whether they will rarely succeed in doing so.’ "
Id. (citation omitted). Thus, the Ninth Circuit in Angle laid out a test for when to apply strict scrutiny to restrictions on Nevada ballot initiatives proposing constitutional amendments, like those at issue here. Angle requires application of strict scrutiny when: (1) the proponents of the initiative have been "reasonably diligent" as compared to other initiative proponents; and (2) when the restrictions significantly inhibit the proponents' ability to place an initiative on the ballot. See id. The Court will address each requirement in turn.
In Angle , the Ninth Circuit found that strict scrutiny did not apply to the All Districts Rule, and the All Districts Rule did not violate the plaintiffs' First Amendment rights because the state had shown the All Districts Rule furthered "an important regulatory interest[,]" namely, "in making sure that an initiative has sufficient grass roots support to be placed on the ballot." 673 F.3d at 1134-35.
i. Reasonable Diligence
Relying particularly on the declaration of Laura Hale attached to their reply brief, Plaintiffs argue they have been reasonably diligent in collecting signatures in support of their Initiative. (ECF No. 35 at 17.) Moreover, Plaintiffs argued at the Hearing they had been reasonably diligent especially considering that much of their delay in collecting signatures before the onset of COVID-19 in Nevada is attributable to being held up in state-court litigation initiated by Intervenor-Defendants.
Intervenor-Defendants responded in pertinent part at the Hearing that Plaintiffs had not been reasonably diligent. Intervenor-Defendants specifically argued there is no way of knowing whether Plaintiffs would have gathered the required number of signatures by the Deadline under normal circumstances, but it is unlikely they would have because they only collected 10,000 signatures in two months, which is well short of the approximately 97,000 required, especially when accounting for the fact that some of the signatures will be rejected upon verification by the county clerks. Intervenor-Defendants also pointed out that Plaintiffs stopped collecting signatures in early March—before the Stay-at-Home order went into effect. Further, Intervenor-Defendants noted that Plaintiffs did not attempt to collect any signatures after the Stay-at-Home order went into effect, making this case distinguishable from Esshaki , 455 F.Supp.3d at 375–76, , where the plaintiff explained he tried gathering signatures by mail while a stay home order was in effect, but found it prohibitively expensive. Finally, Intervenor-Defendants directed the Court's attention to the District of Arizona's finding of a lack of diligence on the plaintiffs' part in Hobbs , 454 F.Supp.3d 910, , which they argued is the most analogous, though merely persuasive, district court case any of the parties have presented here. Neither Plaintiffs, Defendants, nor Intervenor-Defendants presented any argument or evidence about the diligence of the proponents of the other initiative proposing a constitutional amendment that may appear on the November ballot, which could have been useful as a comparator. Overall, the Court finds Plaintiffs have been reasonably diligent in attempting to collect signatures given the circumstances. First, the Court credits Ms. Hale's explanation that Fair Maps did not begin collecting signatures until January 7, 2020, because the first version of the initiative was almost immediately held up in litigation after Fair Maps filed it on November 4, 2019, and any signatures collected in support of that defective first petition could not be used to support the petition. (ECF No. 35-2 at 4.) Thus, Fair Maps began collecting signatures as soon as it filed an amended petition on January 7, 2020, despite continued legal risk from Intervenor-Defendants' state court challenge. (Id. at 4-5.) Under the reasonableness standard that applies here, Plaintiffs started collecting signatures as soon as it made sense to do so. That also distinguishes this case from Hobbs , where the court found the plaintiffs were not diligent as pertinent to its likelihood of success on the merits analysis primarily because they waited a long time before beginning to collect signatures. See Hobbs , 454 F.Supp.3d at 925, ("Plaintiffs could have begun organizing and gathering signatures in November 2018 (as at least one other initiative committee did) yet didn't file the necessary registration paperwork with the Secretary until August 20, 2019 (HRAZ) and October 30, 2019 (AFE), thereby wasting between 45% and 55% of the 20-month election cycle."). Thus, the Court finds Plaintiffs were reasonably diligent in terms of when they started collecting signatures.
The Secretary states there is one other initiative petition campaign to amend Nevada's constitution this election season. (ECF No. 24 at 13 n. 2.)
Second, the Court does not find the fact Plaintiffs stopped collecting signatures in early March—after the COVID-19 outbreak started in Nevada, but before the Stay at Home Order went into effect—weighs against finding diligence here. Forcing circulators to go out to collect signatures during the COVID-19 pandemic is unreasonable and unwise. See Esshaki , 455 F.Supp.3d at 375, ("prudence at that time counseled in favor of doing just the opposite."). Similarly, the Court does not give Intervenor-Defendants' argument that Plaintiffs should have presented evidence about how they continued to try collect signatures once the Stay at Home Order went into effect much credence because the Stay at Home Order did not permit circulators to be out collecting signatures. (ECF No. 1-13 at 3-4.) That makes this case distinguishable from Thompson [6th Cir.] , where Ohio's equivalent orders included a specific carve-out for protected First Amendment activity. See 959 F.3d at 808-10. The Court does not fault Plaintiffs for ceasing to try to collect signatures once the COVID-19 outbreak started, and especially not once the Stay at Home Order prohibited circulators from collecting signatures.
Esshaki is merely persuasive, as are many of the decisions discussed in this order. That is because the caselaw appears to be rapidly evolving on these issues, but mostly outside the Ninth Circuit—Hobbs , from the District of Arizona, being the exception. Thus, and at the urging of the parties, the Court is looking outside the Ninth Circuit to see how other courts are handling these issues.
The Court clarifies one other point. The Court still considers Esshaki persuasive, even though it deals with individual candidates trying to qualify themselves for the ballot rather than an initiative petition to amend a state constitution like the petition at issue here, because the Ninth Circuit stated in Angle that courts could look to cases on ballot-access restrictions regulating candidates in cases involving ballot-access restrictions on initiatives to amend Nevada's constitution, like those at issue here. See 673 F.3d at 1133.
Third, Plaintiffs' evidence shows they were still working towards getting their Initiative on the November ballot even after they stopped trying to collect signatures. (ECF No. 35-2 at 5 (explaining they kept working and were ready to hire a professional consultant by early April 2020).) Thus, Intervenor-Defendants' argument that Plaintiffs have not been diligent because they stopped working on their Initiative once COVID-19 spread to Nevada is not bourne out by the limited evidence before the Court. (Id. )
Fourth, the fact that Plaintiffs collected 10,000 signatures using only word-of-mouth between January 7 and early March 2020 also weighs slightly in favor of finding they have been reasonably diligent. (Id. ) To be sure, 10,000 is a lot less than 97,000, as Intervenor-Defendants argue. But if the Court accepts Ms. Hale's explanation that collecting those 10,000 signatures showed the Plaintiffs were in a good position to collect the required number of signatures by the Deadline under normal circumstances, 10,000 looks like a more substantial number. (Id. ) That said, the Court finds this fact only weighs slightly in favor of showing diligence because in absolute terms, Plaintiffs had many more signatures to collect as of early March to hit 97,000 by the Deadline. See Esshaki , 455 F.Supp.3d at 382–83, (finding the plaintiff diligent where he had "already obtained seventy percent" of the required number of signatures, a much higher percentage than Plaintiffs assert they have obtained here).
Fifth, and finally, the fact that Plaintiffs did not present evidence about the number of signatures collected by the proponents of the other ballot initiative campaign currently attempting to amend the Nevada Constitution (see ECF No. 24 at 13 n. 2) weighs slightly against finding Plaintiffs diligent here, because that could have given the Court a comparative picture of what a reasonably diligent campaign looked like given the current circumstances. See Angle , 673 F.3d at 1133 (directing district courts to compare to reasonably diligent campaigns). But even lacking such comparative evidence, Plaintiffs' proffer as to their reasonable diligence is sufficient. The Court therefore finds that Plaintiffs have been reasonably diligent in attempting to gather signatures, such that it will move on to the next step of the Angle analysis.
ii. Significantly Inhibit
Plaintiffs' argument as to this prong is simple. Fair Maps will not get its Initiative on the November ballot without an extension of the Deadline and/or a waiver of the In-Person Requirements because it has not collected enough signatures. (ECF No. 35 at 5.) Thus, the Secretary's strict interpretation of the challenged statutes significantly inhibits their ability to get their Initiative on the November 2020 ballot. The Court finds this argument persuasive because it has already rejected Intervenor-Defendants and Defendants' threshold arguments. Those arguments in gist contend that the Secretary's denial of the Plaintiffs' requests in reliance on the lack of discretion afforded by the Nevada statutes providing the Deadline and the In-Person Requirements did not significantly inhibit the proponents' ability to place an initiative on the ballot—either COVID-19, the Stay at Home Order, or Plaintiffs' lack of diligence did. But as explained supra in Sections IV(A)-(C) and (E)(1)(a)(i), the Court finds those arguments unpersuasive.
As a matter of common sense, COVID-19, the Stay at Home Order, and the Secretary's Denial Decision all significantly inhibit Plaintiffs' ability to get their Initiative on the November 2020 ballot. However, Plaintiffs challenge only the Secretary's denial here. Moreover, as Plaintiffs have phrased their as-applied First Amendment challenge, COVID-19 and the Stay at Home Order constitute factual circumstances illustrating how the Secretary's Denial Decision makes it essentially impossible for them to get their Initiative on the ballot under the circumstances. The Court is thus persuaded that the Secretary's Denial Decision significantly inhibits Plaintiffs' ability to get their Initiative on the ballot as that phrase is used in Angle. In addition, only the Secretary's Denial Decision is redressable here. The Court cannot consider modifying the Stay at Home Order in this case because Plaintiffs did not sue the Governor, and do not ask the Court to modify it. And of course, the Court cannot stop COVID-19. Thus, again as explained supra , the Secretary's Denial Decision is the only justiciable burden the Court can consider here. The Secretary's Denial Decision significantly inhibited Plaintiffs' chances of collecting the threshold signatures to qualify their Initiative.
Having found that Plaintiffs satisfy the ‘reasonable diligence’ and ‘significantly inhibit’ prongs of the Angle test, the Court will apply strict scrutiny to the Nevada statutes providing the Deadline and the In-Person Requirements. See 673 F.3d at 1133 (creating hypothetical space for the application of strict scrutiny here). The Nevada statutes providing the Deadline and the In-Person Requirements must therefore be "narrowly tailored and advance a compelling state interest" to survive First Amendment scrutiny. Id. at 1132 (citing Prete v. Bradbury , 438 F.3d 949, 961 (9th Cir. 2006) ).
The Court will address the Deadline and the In-Person Requirements separately below because (as mentioned infra ) Defendants and Intervenor-Defendants assert different state interests that justify the different requirements, and the parties' arguments as to the practical details of Plaintiffs' requested relief differ depending on the challenged requirement—which goes to whether the restrictions are narrowly tailored.
But the Court first pauses to recognize the significant tension between the legal principles the parties argue govern the Court's analysis here. Plaintiffs have some First Amendment right to circulate their Initiative petition. See Angle , 673 F.3d at 1132-33. And federal constitutional rights override state statutes. See, e.g., Ex parte Young , 209 U.S. 123, 159, 28 S.Ct. 441, 52 L.Ed. 714 (1908). But the Court telling the Secretary precisely how she must administer the initiative-petition process this election season "would raise significant separation of powers and federalism concerns[,]" Hobbs , 454 F.Supp.3d at 916, , and potentially violate the Purcell principle. Moreover, the mandatory injunction that Plaintiffs seek here—affirmatively ordering the Secretary to do things—is untenable because "federal courts have no authority to dictate to the States precisely how they should conduct their elections." Esshaki [6th Cir.] , 813 Fed.Appx. at 172, ; see also Thompson [6th Cir.] , 959 F.3d at 812 ("we note that the district court exceeded its authority by rewriting Ohio law with its injunction."). To some extent, these tensions are irreconcilable. But the Court will do its best to walk the fine line between these competing considerations.
Purcell v. Gonzalez , 549 U.S. 1, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006). See also Republican Nat'l Comm. v. Democratic Nat'l Comm. ("RNC "), ––– U.S. ––––, 140 S. Ct. 1205, 1207, 206 L.Ed.2d 452 (2020) ("This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.") (citing Purcell , 549 U.S. 1, 127 S.Ct. 5, 166 L.Ed.2d 1 ). Thus, the Purcell principle provides that federal courts should not alter state election rules close to an election.
b. Deadline
Plaintiffs argue that NRS § 295.056(3) (which provides the Deadline) is not narrowly tailored because extending the Deadline by six weeks—roughly the period the Stay at Home Order was fully in effect—would not even push back the deadline to the deadline required by Nevada's constitution, and while pushing back the Deadline would certainly make the Secretary and the county clerks' jobs more difficult, it would not make them impossible. (ECF No. 35 at 7, 11-13.) The Secretary argues granting Plaintiffs an extension would give Defendants only "minimum opportunity for normal verification to ensure that ballot initiatives changing Nevada's constitution would be accurate and free from fraud[.]" (ECF No. 24 at 19-20.) The Secretary elsewhere argues granting Plaintiffs an extension would make it more difficult for Defendants to prepare for the November 2020 general election, a sentiment echoed by the Rural County Defendants at the Hearing. But the Court agrees with Plaintiffs.
The Court finds that NRS § 295.056(3) is neither narrowly tailored, nor does it advance a compelling governmental interest under the circumstances—and is therefore unconstitutional as the Secretary applied it to Plaintiffs in denying their request for an extension of the Deadline in her letter (ECF No. 1-26). To start, Plaintiffs have some sort of First Amendment right to circulate their Initiative petition. See Angle , 673 F.3d at 1133. Next, the Deadline in NRS § 295.056(3) is not required by the Nevada constitution, but merely permitted by it. See Nev. Const. art. XIX, § 2(4) (providing that the deadline is 90 days before the general election).
As discussed infra, Angle is confusing.
That distinguishes this case from Judge Boulware's decision in Fight for Nevada , which was explicitly premised on his finding that "the Ninth Circuit has never recognized a First Amendment right to file a recall petition." 460 F.Supp.3d at 1057, . This case is about a slightly different First Amendment right—the right to place an initiative on the ballot. And while Judge Boulware mentioned in Fight for Nevada (see id. ) that the Ninth Circuit stated in Angle there is "no First Amendment right to place an initiative on the ballot[,]" as explained infra , the Ninth Circuit went on to outline a scenario where a regulation regarding ballot access for initiative petitions to amend Nevada's constitution could violate the First Amendment. See Angle , 673 F.3d at 1133. As explained supra , the Court finds this is such a scenario, at least as to the Deadline.
Defendants basically argue that they will be severely inconvenienced if Plaintiffs get any extension of the Deadline. While this is a valid governmental interest, the Court does not find it compelling under the circumstances here—during an unprecedented pandemic. As Plaintiffs have no chance of getting their Initiative on the ballot without an extension, their First Amendment rights have been violated by the Secretary's denial of their request for an extension. See Angle , 673 F.3d at 1133 (stating that ballot access restrictions can indirectly burden the core political speech of circulating initiative petitions where they make it less likely an initiative will qualify for a ballot). That constitutional harm outweighs Defendants' proffered interest of severe inconvenience. And that is especially the case for the time period (approximately six weeks) that the Stay at Home Order was in effect. Plaintiffs were prohibited from collecting signatures during that time, so it is both unreasonable and unfair not to extend a statutory deadline for a corresponding period of time. (ECF No. 1-13 at 3-4.) If there is any time where business as usual is impossible, this is it. Thus, the Court does not find severe inconvenience a compelling government interest given these extraordinary circumstances. And to the extent Defendants argue fraud prevention is the interest weighing in favor of maintaining the Deadline during the COVID-19 pandemic, none of them explained how having the amount of time they normally have to review initiative petition signatures will substantially contribute to fraud-reduction efforts.
As mentioned infra , this fact distinguishes this case from Thompson [6th Cir.] , where the Sixth Circuit highlighted how Ohio's stay home orders contained a First Amendment carve-out. See 959 F.3d at 808-10. This fact also makes this case more like Esshaki [6th Cir.] . See 813 Fed.Appx. at 171–72, (affirming the district court's application of strict scrutiny, and finding that strict enforcement of election regulations like the Deadline was unconstitutional under the circumstances).
Moreover, NRS § 295.056(3) is not narrowly tailored. As noted, the Deadline it imposes is not required by Nevada's constitution. Whether the Deadline is narrowly tailored therefore depends on whether you accept Defendants' argument they need as much time as they normally have. But as Plaintiffs point out, the Secretary does not even appear to really believe that. (ECF No. 35 at 11-12.) Indeed, the Secretary merely argues she and the county clerks will have less time if required to grant an extension. (ECF No. 24 at 20.) And there is no dispute about that—extending the deadline will give Defendants less time. But that does not establish Defendants will not have enough time to properly do their job. Moreover, the Court finds Plaintiffs' analysis of the timeline proffered by the Secretary—and Plaintiffs' related argument that there will be enough time even if Plaintiffs get an extension—more persuasive than the counterarguments offered by Defendants and Intervenor-Defendants. (ECF No. 35 at 12-13.) There does appear to be enough time to do everything Defendants would normally do on an expedited timeline. Thus, because the Court finds Defendants could accomplish what they normally do as pertinent here in less time than they normally have, NRS § 295.056(3) is not narrowly tailored.
Because NRS § 295.056(3) is neither narrowly tailored, nor does it serve a compelling government interest under the circumstances, it violates Plaintiffs' First Amendment political speech rights as the Secretary applied it to Plaintiffs in her Denial Decision (ECF No. 1-26). See Esshaki [6th Cir.] , 813 Fed.Appx. at 171–72, (affirming a similar result as to a similar restriction).
As the Court stated during the Hearing, the Court assumes without deciding the result of this finding is the deadline will revert to the constitutional deadline. Mindful of the rationale expressed by the Sixth Circuit in Esshaki [6th Cir.] , 813 Fed.Appx. at 172–73, , and Thompson [6th Cir.] , 959 F.3d at 811-12, the Court will go no further, such as by explicitly extending the Deadline to a particular date. Either the constitutional deadline applies, (see Nev. Const. art. XIX, § 2(4)), or the parties can work out a reasonable accommodation. If it were up to the Court, an extension corresponding to the precise length of time the Stay at Home Order was in effect seems the most reasonable.
The Court also notes this finding does not necessarily mean Plaintiffs will collect a sufficient number of signatures to get their Initiative on the ballot—they will just have some more time to try.
Finally, primarily for the reasons explained infra in Sections IV(A)-(D), the Court finds it does not matter whether NRS § 295.056(3) gave the Secretary any discretion to give Plaintiffs an extension. In any event, there can be no reasonable dispute that the Court can declare a state statute unconstitutional as-applied, as it has done here.
c. In-Person Requirements
However, the Court's analysis as to the In-Person Requirements differs from its analysis as to the Deadline. This is for two main reasons. First, Defendants and Intervenor-Defendants' proffered governmental interest of preventing fraud is more clearly articulated and better supported as to the In-Person Requirements. Second, the relief Plaintiffs seek as to the In-Person Requirements generally requires the Court to get impermissibly in the weeds of designing election procedures because Plaintiffs ask the Court to order the Secretary to set up a system for collecting and verifying signatures offered to support an initiative petition electronically, for the first time, immediately. (ECF No. 35 at 10-11 (proposing some ideas as to how electronic signature verification could work).) Thus, before even getting to the strict scrutiny analysis, the Court notes that the Purcell principle counsels against the Court intervening at all when it comes to the In-Person Requirements. (ECF Nos. 15-3 at 6, 19 at 17-18 (making this argument).)
With the Purcell principle, the Supreme Court "has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election." RNC , 140 S. Ct. at 1207 ; see also Republican Party of Pa. v. Cortés , 218 F. Supp. 3d 396, 405 (E.D. Pa. 2016) ("Federal intervention at this late hour risks ‘a disruption in the state electoral process [which] is not to be taken lightly.’ ‘This important equitable consideration goes to the heart of our notions of federalism.’ ") (alteration in original) (citation and quotation omitted). This principle is particularly pertinent where plaintiffs ask courts to "impose large-scale changes to the election process." Bryan v. Fawkes , 61 V.I. 416, 469 (V.I. 2014) (collecting cases).
Even though there are some five months until the election, rolling out and testing a new electronic system for signature collection and verification between now and then will take some time. Thus, the Court finds the Purcell principle applies to the In-Person Requirements despite Plaintiffs' argument there is still plenty of time before the election. (ECF No. 35 at 19-20.) See also Paher v. Cegavske ("Paher II "), Case No. 3:20-cv-00243-MMD-WGC, 2020 WL 2748301, at *6 (D. Nev. May 27, 2020) (denying second request for a preliminary injunction in part based on the Purcell principle).
Alternatively, the Court finds the statutes providing the In-Person Requirements ( NRS § 295.0575(1), (5) ) survive strict scrutiny because they are narrowly tailored to achieve their compelling government interest of preventing fraud. As the Secretary argues (ECF No. 24 at 16), the Nevada Supreme Court has previously held that "according to the statute's legislative history, the affidavit requirement, among other amendments passed by the 2007 Legislature, was primarily intended to prevent fraud in the signature-gathering process." Las Vegas Convention & Visitors Auth. v. Miller , 124 Nev. 669, 191 P.3d 1138, 1154 (2008). And preventing fraud in elections is generally considered an "important interest." See, e.g., Buckley v. Am. Constitutional Law Found., Inc. , 525 U.S. 182, 205, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999).
Further, the In-Person requirements make clear their approach to preventing fraud is to ensure people sign initiative petitions in-person, and do not appear to allow for electronic signatures. See NRS § 295.0575(1), (5). While there may be other ways to prevent fraud in signature collection, the In-Person Requirements are certainly one way to accomplish that goal, and no party before the Court questions the effectiveness of the In-Person Requirements. Thus, the In-Person Requirements are narrowly tailored to serve the compelling government interest of preventing fraud, and thus survive strict scrutiny even under the circumstances presented by the combination of the COVID-19 pandemic and the Stay at Home Order.
The Court therefore concludes Plaintiffs are likely to succeed on the merits of their claim that the Secretary's refusal to extend the Deadline violated their First Amendment rights as applied to these factual circumstances, but not their challenge to the In-Person Requirements.
d. Irreparable Harm
Because the Court concludes Plaintiffs are likely to succeed on the merits that the Secretary's decision not to extend the Deadline violated their First Amendment rights, the Court also necessarily finds irreparable harm. See Sanchez v. Cegavske , 214 F. Supp. 3d 961, 976 (D. Nev. 2016) (first citing Cardona v. Oakland Unified Sch. Dist., California , 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."), and then citing Melendres v. Arpaio , 695 F.3d 990, 1002 (9th Cir. 2012) ("It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’ ")); see also Angle , 673 F.3d at 1132 (stating that restrictions on ballot initiatives can violate the First Amendment where they make it "less likely that proponents will be able to garner the signatures necessary to place an initiative on the ballot"). Moreover, as a matter of common sense, Plaintiffs will not be able to get their Initiative on the ballot in November without an extension. And they may not even with an extension. But because they certainly will not get their Initiative on the ballot without an extension, they would be irreparably harmed if the Court did not issue a preliminary injunction here.
2. Balancing of the Equities and the Public Interest
The Court also considers these factors together. "When the government is a party, these last two factors merge." Drakes Bay Oyster Co. v. Jewell , 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder , 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) ). "To determine which way the balance of the hardships tips, a court must identify the possible harm caused by the preliminary injunction against the possibility of the harm caused by not issuing it." Univ. of Haw. Prof'l Assembly v. Cayetano , 183 F.3d 1096, 1108 (9th Cir. 1999). The Court must then weigh "the hardships of each party against one another." Id. As to public interest, "[i]n exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Winter , 555 U.S. at 24, 129 S.Ct. 365.
These two factors also weigh in favor of issuing a preliminary injunction that only declares NRS § 295.056(3) unconstitutional as applied to Plaintiffs by the Secretary under the unique factual circumstances of this case. On the one hand, Plaintiffs will be harmed if an injunction does not issue because the Secretary violated their First Amendment rights, and they will have no chance of getting their Initiative on the November 2020 ballot if they have to submit all of their signatures by the Deadline. The Court also found Plaintiffs will be irreparably harmed. On the other hand, Defendants will be harmed if an injunction does issue because they will have to do the same amount of work in less time—during a pandemic—in terms of verifying signatures, etc. However, as explained infra during the likelihood of success on the merits analysis, the violation of Plaintiffs' First Amendment rights outweighs the administrative inconvenience Defendants will suffer. Moreover, whatever extension of the Deadline Plaintiffs end up obtaining will also be available to the one other group seeking to get an initiative on the November 2020 ballot to amend Nevada's constitution. Thus, the interested public will also benefit if the Court issues an injunction here. In addition, Nevada citizens will benefit if there are one or more initiatives to amend Nevada's constitution on the November 2020 ballot because each added initiative "likely increases the ‘total quantum of speech’ on public issues[.]" Angle , 673 F.3d at 1133. In sum, the Court finds the balancing of the equities and public interest factors also weigh in favor of granting Plaintiffs' PI Motion in part.
V. CONCLUSION
The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the issues before the Court.
It is therefore ordered that Plaintiffs' motion for preliminary injunction (ECF No. 2) is granted in part, and denied in part. NRS § 295.056(3) is unconstitutional as applied to Plaintiffs by Defendant Barbara Cegavske under the unique factual circumstances of this case. Plaintiffs' motion for preliminary injunction is otherwise denied in all other respects.
It is further ordered that Defendant Barbara Cegavske's motion to dismiss (ECF No. 25) is denied.