Busefink v. State

286 P.3d 599, 128 Nev. 525, 128 Nev. Adv. Rep. 49, 2012 WL 4712015, 2012 Nev. LEXIS 93
CourtNevada Supreme Court
DecidedOctober 4, 2012
DocketNo. 57579
StatusPublished
Cited by6 cases

This text of 286 P.3d 599 (Busefink v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Busefink v. State, 286 P.3d 599, 128 Nev. 525, 128 Nev. Adv. Rep. 49, 2012 WL 4712015, 2012 Nev. LEXIS 93 (Neb. 2012).

Opinion

OPINION

By the Court,

Gibbons, J.:

In this appeal, we consider whether NRS 293.805’s prohibition against providing compensation to voter registration canvassers based upon the total number of voters a canvasser registers violates the First Amendment to the United States Constitution and/or is unconstitutionally vague.2 We conclude that NRS 293.805 neither violates the First Amendment nor is unconstitutionally vague, and therefore, we affirm the judgment of conviction.

FACTS AND PROCEDURAL HISTORY

In 2008, the Association of Community Organizations for Reform Now, Inc. (ACORN), hired voter registration canvassers in Las Vegas. ACORN originally paid these canvassers an hourly wage. After considering ways to increase productivity, ACORN’s field director for Nevada suggested to appellant Amy Busefink, his supervisor, the idea of paying incentive bonuses to voter registration canvassers. Busefink granted the director permission to implement the incentive program between August and September 2008. Under this program, ACORN would pay canvassers a $5 bonus if a canvasser returned 21 or more voter registration appli[528]*528cations. ACORN’s employees commonly referred to this program as “21” or “blackjack,” after the card game. Through this program, several canvassers obtained a $5 bonus for submitting 21 or more voter registration applications.

During this time, the Secretary of State’s office began investigating complaints it received regarding voter registration applications submitted by ACORN. A subsequent investigation by the Secretary of State’s office uncovered the “blackjack” program. The State then charged Busefink, ACORN, and ACORN’s field director for Nevada with several counts of violating NRS 293.805.

At Busefink’s preliminary hearing, the State provided evidence demonstrating that ACORN paid multiple canvassers the “blackjack” bonus for submitting 21 or more voter registration applications. Further, the investigator for the Secretary of State’s office testified that canvassers submitted fraudulent voter registration applications. The justice court found reasonable cause to conclude that Busefink committed violations of NRS 293.805 and bound her case over to the district court for trial. Busefink filed a motion to dismiss the amended criminal complaint, arguing that NRS 293.805 is unconstitutionally vague and violates the First Amendment. The district court denied the motion to dismiss. Busefink then entered an Alford plea to two counts of conspiracy to commit the crime of compensation for registration of voters, and was adjudged guilty. The district court sentenced Busefink to a year in the Clark County Detention Center and required her to pay a $2,000 fine for each of the two counts. The district court then suspended the sentence, placed Busefink on informal probation, and required her to complete 100 hours of community service.

Busefink now appeals. For the reasons set forth below, we conclude that (1) NRS 293.805 triggers a “less exacting” standard of review than strict scrutiny; (2) the State demonstrated an interest sufficiently weighty to justify the limitation imposed on canvassing activities, and therefore, NRS 293.805 does not violate the First Amendment; and (3) NRS 293.805 is not unconstitutionally vague. Accordingly, we affirm the judgment of conviction.

DISCUSSION

I. NRS 293.805 does not violate the First Amendment

The central issue in this case is whether NRS 293.805’s prohibition on the payment of individuals based upon the number of voters registered violates the First Amendment. We review a constitutional challenge to a statute de novo. Pohlabel v. State, 128 Nev. 1, 4, 268 P.3d 1264, 1266 (2012). “ ‘Statutes are presumed to be valid, and the challenger bears the burden of showing that a statute [529]*529is unconstitutional.’ ” Flamingo Paradise Gaming v. Att’y General, 125 Nev. 502, 509, 217 P.3d 546, 551 (2009) (quoting Silvar v. Dist. Ct., 122 Nev. 289, 292, 129 P.3d 682, 684 (2006)). The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const, amend. I. The “freedom of speech” is a fundamental right and liberty that is secured to all persons against abridgment by a State through the Fourteenth Amendment’s due process clause. Thornhill v. Alabama, 310 U.S. 88, 95 (1940). “[T]he Free Speech Clause prohibits the State from significantly burdening potential speakers with financial disincentives to speak. . . . [Compensation often induces individuals to engage in expressive activities, [therefore] a governmental entity may not unreasonably impede the provision of compensation to individuals who wish to engage in such activities for pay.” Project Vote v. Kelly, 805 F. Supp. 2d 152, 162 (W.D. Pa. 2011) (internal citations omitted). To determine whether NRS 293.805 violates the First Amendment, we must (1) determine the applicable standard of review, and (2) apply that standard of review when weighing NRS 293.805’s burdens on First Amendment rights and the State’s interest in preventing fraud.

A. NRS 293.805 triggers a “less exacting’’ standard of review than strict scrutiny

“ ‘[VJoting is of the most fundamental significance under our constitutional structure.’ ” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 184 (1979)). However, “[e]lection laws will invariably impose some burden upon . . . voters.” Id. “Consequently, to subject every voting regulation to strict scrutiny . . . would tie the hands of States seeking to assure that elections are operated equitably and efficiently.’ ’ Id.

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Cite This Page — Counsel Stack

Bluebook (online)
286 P.3d 599, 128 Nev. 525, 128 Nev. Adv. Rep. 49, 2012 WL 4712015, 2012 Nev. LEXIS 93, Counsel Stack Legal Research, https://law.counselstack.com/opinion/busefink-v-state-nev-2012.