Paher v. Nevada Secretary of State

Opinion

5 * * *

6 STANLEY WILLIAM PAHER, et al., Case No. 3:20-cv-00243-MMD-WGC

7 Plaintiffs, ORDER v. 8 BARBARA CEGAVSKE, in her official 9 capacity as Nevada Secretary of State, et al., 10 Defendants. 11 13 Plaintiff brought this case to challenge Nevada’s Secretary of State Barbara 14 Cegavske’s (“Secretary”) plan, in partnership with Nevada’s 17 county election officials, to 15 implement an all-mail-in election for the June 9, 2020 Nevada primary (“Primary”) (“Plan”). 16 (See ECF Nos. 1, 64.) The Plan was expressly adopted to protect the public and safeguard 17 the voting franchise during the novel coronavirus disease 2019 (“COVID-19”) pandemic. 18 (See, e.g., ECF No. 57 at 1–3, 13.) The Primary came and went. Considering the 19 assertions and facts specific to this case, the Court finds that it can no longer exercise its 20 limited jurisdiction over the case and will accordingly dismiss it as moot. The two pending 21 motions to dismiss (ECF Nos. 71, 77) are likewise denied as moot. 23 The facts of this case may be found in the Court’s orders ruling on Plaintiffs’ first 24 and second motion for preliminary injunction. (ECF No. 57 (“First Order); ECF No. 83 25 (“Second Order”).) These facts include a detailed recitation of the specific Plaintiffs, 26 Defendants, and Intervenor-Defendants. (E.g., ECF No. 83 at 2–3.) The Court 27 incorporates those background facts by reference and do no repeat them here. The Court 28 will herein note only facts that are instantly relevant. 2 officials do not have authority to implement the Plan pursuant to which election officials 3 would mail ballots to active registered voters without voters first requesting such ballots. 4 (See ECF No. 1 (“Verified Complaint”).) In the Verified Complaint, Plaintiffs asserted a 5 total of five claims, in gist contending that the largely all-mail primary prescribed by the 6 Plan circumvents various state statutory safeguards designed to protect against voter 7 fraud, and that their votes will as a result be diluted by illegal votes. (Id.) They additionally, 8 inter alia, alleged that the Plan is not the Nevada Legislature’s chosen manner of election 9 and therefore in violation of Article I, section 4, clause 1 of the United States Constitution. 10 (Id.) Plaintiffs specifically requested declaratory and injunctive relief to prevent the 11 Secretary and county administrators from implementing the Plan and to have the Primary 12 conducted as the Nevada Legislature otherwise prescribes. (Id. at 12–13.) 13 Along with the Verified Complaint, Plaintiffs filed a motion for preliminary injunction 14 (“First PI Motion”) and, inter alia, sought expedited briefing and a hearing on the First PI 15 Motion. (ECF Nos. 2, 3,4.) The Court granted expedited briefing and held a hearing on 16 April 29, 2020. (ECF Nos. 14, 49.) The next day, the Court ultimately denied the First PI 17 Motion, concluding that Plaintiffs lack standing and are unlikely to succeed on the merits 18 of their claims. (ECF No. 57.) 19 Plaintiffs did not expressly move the Court to reconsider its ruling. Nor did Plaintiffs 20 seek appellate review—expedited or otherwise. Instead, Plaintiffs amended their 21 complaint—adding additional parties. (ECF No. 83 at 2–3 (noting the new parties including 22 a plaintiff who would be on ballot as a candidate in Lyon County—Plaintiff Gary Gladwill).) 23 In the amended complaint (“AC”), Plaintiffs assert the following four claims: (1) the 24 Plan violates the fundamental right to vote by direct disenfranchisement in violation of the 25 First and Fourteenth Amendments of the United States Constitution by not abiding by the 26 Nevada Legislature’s chosen manner of elections (Count I); (2) the Plan violates the 27 fundamental right to vote by vote-dilution disenfranchisement in violation of the same by 28 sidestepping statutory safeguards designed to protect against voting fraud (Count II); (3) 2 to conduct the election in a manner not authorized by the Nevada Legislature and contrary 3 to the legislature’s chosen manner (Count III); and (4) Clark County’s plan to send mail-in 4 ballots to all registered voters and to allow for the collection of ballots (“Clark County’s 5 Plan” or “CC Plan”) violates the Fourteenth Amendment’s Equal Protection Clause (Count 6 IV).1 (ECF No. 64 at 20–25.) As to the CC Plan, Plaintiffs particularly highlight Clark 7 County’s plan to: (i) send absent ballots also to inactive registered voters and, as reported, 8 “allow a bipartisan group of deputized ‘field registrars’ to collect sealed ballots from voters”; 9 and (ii) create more vote centers than other Nevada counties.2 (Id. at 2.) The AC also 10 sought declaratory and injunctive relief. (Id. at 25–26.) The AC was accompanied by, 11 among other things, a second motion for preliminary injunction (“Second PI Motion”). (ECF 12 No. 65.) 13 Defendants and Intervenor-Defendants filed oppositions to the Second PI Motion 14 and moved to dismiss the AC. (See ECF Nos. 71, 72, 73, 74, 75, 76, 77, 78.) The Court 15 denied the Second PI Motion on May 27, 2020. (ECF No. 83.) Plaintiffs thereafter moved 16 for an extension of time to respond to the motions to dismiss, submitting a response on 17 July 3, 2020—weeks after the Primary. (ECF Nos. 83, 87.) Defendants and Intervenor- 18 Defendants replied. (ECF Nos. 88, 89, 90 (joinder).) 19 III. LEGAL STANDARD3 20 Rule 12(b)(1) of the Federal Rules of Civil Procedure allows defendants to seek 21 dismissal of a claim or action for a lack of subject matter jurisdiction. Dismissal under Rule 22 23 1The header of Count IV broadly asserts that the Plan violates the Equal Protection 24 Clause, but the substance of the allegation is specifically concerned with Clark County and the CC Plan. (See ECF No. 64 at 24–25.) 25 2In their reply supporting the Second PI Motion, Plaintiffs “expressly disavow[ed] 26 any challenge to the provisions of the CC Plan allowing for more polling places in Clark County.” (ECF No. 83 at 14 (citing ECF No. 80 at 8–9).) 27 3While Defendants and Intervenor-Defendants move for dismissal under Federal 28 Rules of Civil Procedure 12(b)(1) and 12(b)(6) (e.g., ECF No. 71 at 4–5; ECF Nos. 73, 76 2 face that are sufficient to establish subject matter jurisdiction. In re Dynamic Random 3 Access Memory (DRAM) Antitrust Litigation, 546 F.3d 981, 984–85 (9th Cir. 2008). 4 Although the defendant is the moving party in a motion to dismiss brought under Rule 5 12(b)(1), the plaintiff is the party invoking the court=s jurisdiction. As a result, the plaintiff 6 bears the burden of proving that the case is properly in federal court. McCauley v. Ford 7 Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors Acceptance 8 Corp., 298 U.S. 178, 189 (1936)). 9 Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. 10 Kroger, 437 U.S. 365, 374 (1978). AA federal court is presumed to lack jurisdiction in a 11 particular case unless the contrary affirmatively appears.@ Stock West, Inc. v. 12 Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). 13 Thus, federal subject matter jurisdiction must exist at the time an action is commenced. 14 Mallard Auto. Grp., Ltd. v. United States, 343 F. Supp. 2d 949, 952 (D. Nev. 2004). 15 The issue of mootness amounts to a facial attack on the AC. AIn a facial attack, the 16 challenger asserts that the allegations contained in a complaint are insufficient on their 17 face to invoke federal jurisdiction.” Safe Air for Everyone v. Myer (“Safe Air”), 373 F.3d 18 1035, 1039 (9th Cir. 2004). The court assumes the factual allegations of a complaint to be 19 true and draws all reasonable inferences in favor of the plaintiff. Doe v. Holy See, 557 F.3d 20 1066, 1073 (9th Cir. 2009).4 21 /// 22 /// 23 /// 24 /// 25 (joinders)), the Court provides only the standard for the former here because the Court 26 concludes that dismissal is warranted on mootness grounds.

27 4“By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.@ Safe Air, 373 F.3d at 28 1039. 2 The Court finds this case is now moot.5 The Court therefore does not consider the 3 other jurisdictional and merits-based arguments for and against dismissal raised in the 4 parties’ briefing. 5 Article III, § 2 of the U.S. Constitution states that the federal courts may only 6 adjudicate “Cases” and “Controversies”. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 7 559 (1992); Deakins v. Monaghan, 484 U.S. 193, 199 (1988). By Article III, federal courts 8 are denied the power to “to decide questions that cannot affect the rights of litigants in the 9 case before them.” North Carolina v. Rice, 404 U.S. 244, 246 (1971). The jurisdiction of a 10 federal court is properly invoked only where litigants have suffered or are “threatened with, 11 an actual injury traceable to the defendant and likely to be redressed by a favorable judicial 12 decision.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990); North Carolina, 404 U.S. 13 at 246 (explaining also that courts are not empowered as a matter of jurisdiction to decide 14 moot questions). That there must be a case or controversy for the exercise of jurisdiction 15 “subsists through all stages of federal judicial proceedings, trial and appellate.” Id. “[I]t is 16 not enough that a dispute was very much alive when suit was filed . . . [t]he parties must 17 continue to have a ‘personal stake in the outcome’ of the lawsuit.” Id. at 477–78 (internal 18 quotations and citations omitted). 19 “Where on the face of the record it appears that the only concrete interest in the 20 controversy has terminated, reasonable caution is needed to be sure that mooted litigation 21 is not pressed forward, and unnecessary judicial pronouncements on even constitutional 22 issues obtained.” Id. at 480. A case is moot where there remains no present controversy 23 for which effective relief can be granted. E.g., W. Coast Seafood Processors Ass'n v. Nat. 24 Res. Def. Council, Inc., 643 F.3d 701, 704 (9th Cir. 2011) (citations omitted); see also 25 /// 26 5Because the motions to dismiss were filed before the Primary, Defendants and Intervenor-Defendants did not have an opportunity to raise the mootness issue. Plaintiffs 27 raised the issue in their response. (ECF No. 87 at 3.) Defendants and Intervenor- Defendants addressed the issue in reply. (ECF No. 88 at 2, n.1; ECF No. 89 at 2–6.) In 28 any event, the Court is bound to consider the issue sua sponte. See, e.g., Gator.com Corp. 2 quotation and citations omitted) (“A case becomes moot whenever it loses its character 3 as a present, live controversy of the kind that must exist if we are to avoid advisory opinions 4 on abstract propositions of law. The question is not whether the precise relief sought at 5 the time . . . [the case] was filed is still available. The question is whether there can be any 6 effective relief.”) 7 The Supreme Court has recognized several exceptions to the mootness doctrine, 8 of which the exception for matters that are capable of repetition while evading review is 9 immediately relevant.6 See, e.g., Roe v. Wade, 410 U.S. 113, 125 (1973); Honig v. 10 Doe, 484 U.S. 305, 318–20 (1988). Plaintiffs argue that exception here, thereby implicitly 11 conceding that this case is moot under the default mootness doctrine. (ECF No. 87 at 2– 12 8.) However, the Court finds the capable of repetition while evading review exception does 13 not preserve the Court’s jurisdiction over this matter. 14 Under the capable of repetition while evading review exception, “[a] case 15 otherwise moot will still be heard if it presents an issue that is capable of repetition while 16 evading review.” Pub. Utilities Comm'n of State of Cal. v. F.E.R.C., 100 F.3d 1451 (9th 17 Cir. 1996) (citations omitted). “This exception applies only in exceptional circumstances.” 18 GTE California, Inc. v. Federal Communications Comm'n, 39 F.3d 940, 945 (9th Cir. 1994) 19 (internal quotation and citation omitted). The exception particularly applies only where two 20 exceptions have been met: “(1) the challenged action was in its duration too short to be 21 fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation 22 that the same complaining party would be subjected to the same action again.” Murphy 23 v. Hunt, 455 U.S. 478, 482 (1982) (quotations and citations omitted) (recognizing the 24 exception as articulated in Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam)). 25 “The ‘capable of repetition, yet evading review’ doctrine, in the context of election cases, 26 6In addition to the capable of repetition while evading review exception, the 27 Supreme Court has recognized the voluntary cessation and collateral consequences exceptions. See, e.g., Pub. Utilities Comm'n of State of Cal. v. F.E.R.C., 100 F.3d 1451, 28 1459–61 (9th Cir. 1996). The Court has applied an additional mootness exception in class 2 involving only facial attacks.” Storer v. Brown, 415 U.S. 724, 737 n.8 (1974); see also 3 Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir. 2005) (“Challenges to election laws 4 are one of the quintessential categories of cases which usually fit” the evading-review 5 prong “because litigation has only a few months before the remedy sought is rendered 6 impossible by the occurrence of the relevant election.”) (emphasis added). 7 Plaintiffs essentially argue that the exception is met based on standards that apply 8 to candidates and voters in election cases. (See generally ECF No. 87 at 2–8.) However, 9 each case Plaintiffs materially rely on is inapposite to this case because all those cases 10 concerned state statutes or other law that would govern successive elections. See, e.g., 11 Fed. Election Comm’n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 449–50, (2007) 12 (concerning Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA) that 13 would in the future apply to the same backout period issue then before the Court): Norman 14 v. Reed, 502 U.S. 279, 286–88 (1992) (considering Illinois statute); Int’l Org. of Masters, 15 Mates & Pilots v. Brown, 498 U.S. 466, 473 (1991) (concerning § 401(c) of the Labor– 16 Management Reporting and Disclosure Act of 1959 (LMRDA) and noting the section would 17 likely again present an obstacle to a preconvention mailing by respondent ); Storer, 415 18 U.S. at 737 n.8 (“[T]his case is not moot, since the issues properly presented . . . will 19 persist as the California statutes are applied in future elections.”); Joyner v. Mofford, 706 20 F.2d 1523, 1527 (9th Cir. 1983) (considering a State of Arizona constitution provision that 21 “could be tested . . . whenever another elected Arizona official stands for federal office”); 22 Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1306 n.1 (10th Cir. 2007) (considering 23 New Mexico statute concerning ballot access); Lawrence, 430 F.3d at 369–72 (involving 24 mootness challenge to Ohio election statute that applied to candidates); Majors v. Abell, 25 317 F.3d 719, 722 (7th Cir. 2003) (concerning Indiana statute). 26 Here, as noted in the Court’s First Order denying the First PI Motion, in declaring 27 the Plan the Secretary expressly stated the Plan applies only to the Primary election. (ECF 28 No. 57 at 2 (referencing ECF No. 1-1).) There is no assertion in the AC that the Plan 2 election cases Plaintiffs rely on are materially distinguishable. 3 Moreover, to be exact, neither of the two requirements of the exception have been 4 met here. 5 Plaintiffs contend that the first prong—the challenged action was in its duration too 6 short to be fully litigated prior to its cessation or expiration—has been met because the 7 Plan and the CC Plan “were announced in March and April 2020, the initial complaint was 8 filed April 21, and the June 9 Primary occurred without the opportunity for full review by 9 this Court, let alone by an appeals court.” (ECF No. 87 at 4.) The Court disagrees. On the 10 record here the opportunity for “full review” by this Court was satisfied because the Court 11 adjudicated the First PI Motion, and “full review” by the Ninth Circuit Court of Appeals was 12 missed as a result of Plaintiffs’ own dilatory actions. 13 Intervenor-Defendants point out (ECF No. 89 at 5) that the Ninth Circuit has 14 explained that: 15 a party may not profit from the “capable of repetition, yet evading review” exception to mootness, where through his own failure . . . he has 16 prevented an appellate court from reviewing the trial court’s decision. The exception was designed to apply to situations where the type of injury 17 involved inherently precludes judicial review, not to situations where the failure of parties to take certain actions has precluded review as a practical 18 matter. 19 Matter of Bunker Ltd. P'ship, 820 F.2d 308, 311 (9th Cir. 1987) (citations omitted). Further, 20 while election cases may usually fit the evading review standard due to their short duration, 21 the prong is not met based on mere possibility. See Murphy, 455 U.S. at 482. If it was so 22 satisfied, then virtually any election provision would be reviewable based on no more than 23 that they are matters of short duration. 24 In this case there was nothing inherently preclusive of review. In fact, in its Second 25 Order the Court expressed surprise at the lack of urgency with which Plaintiffs brought the 26 AC and their Second PI Motion as well as them not pursuing expedited appellate review 27 /// 28 /// 2 decision to bring the AC at this late hour, as opposed to seeking expedited appellate 3 review of the Court’s order . . . regarding their original motion for preliminary injunction . . 4 . , is confounding and contrary to their position that a quick disposition of this matter is 5 needed due to the impending June 9, 2020 Nevada primary election.”); id. (also 6 recognizing that the AC and second motion for preliminary injunction “glaringly 7 repackage[d] old arguments to achieve a different disposition without necessary 8 justification”); id. at 9 (“Plaintiffs waited 14 days after the [First] PI Order was issued and 9 only 26 days before the June Primary to file the AC and bring the Second PI Motion . . . 10 Plaintiffs surely have not acted with the alacrity that they claim this case necessitates.”).) 11 To be sure, this Court was able to consider both motions for preliminary injunction 12 within short timeframes with expedited full briefing on both and one hearing for the first 13 injunction request. The Court could have—and would have—also ordered expedited 14 briefing to rule on the motions to dismiss. But notably Plaintiffs requested an extension of 15 time way beyond the Primary date—July 3, 2020—to file their response to the motions to 16 dismiss (see ECF No. 81). Plaintiffs’ own apparent game of wait-and-see therefore 17 precluded further review on the merits before the Primary—not some intrinsic short 18 duration of election cases generally. Accordingly, Plaintiffs have not satisfied the first 19 prong under these circumstances. 20 Even if Plaintiffs may be found to have established prong one, their failure to meet 21 prong two prevents them from moving forward. As to the second prong, the Supreme Court 22 has said “that there must be a ‘reasonable expectation’ or a ‘demonstrated probability’ that 23 the same controversy will recur involving the same complaining party.” Murphy, 455 U.S. 24 at 482. (citation omitted and emphasis added). The Court finds no such reasonable 25 expectation or demonstrated probability in this case. 26 /// 27 7Plaintiffs acted contrary to their representation in seeking expedited briefing that 28 the Court should “issue a ruling with adequate time for [Plaintiffs] to seek emergency stays 2 Plan) will be valid and apply to future elections. Again, they expressly governed only the 3 June Primary. The Court recognizes Plaintiffs’ contention that a similar policy will likely be 4 implemented for future elections—and particularly the November general election—due to 5 the persistence of the COVID-19 pandemic (and surmising that some other similar health 6 and public safety crisis will come along). (ECF No. 87 at 6–8.) Plaintiffs also argue that 7 the second prong is met even where Plaintiff-candidate, Gladwill, were to not run in future 8 elections and that Plaintiffs’ intent to run and vote in the future should nonetheless be 9 inferred from their past conduct of doing these things. (Id. at 4–6.) But all this is besides 10 the point. The Plan (and the CC Plan)—as implemented by the Secretary and county 11 officials—were in response to the COVID-19 pandemic and limited to the Primary. The 12 relief Plaintiffs request in the AC are directly tied to the same. (See ECF No. 64 at 25 13 (stating, for example “enjoin[]the Secretary and County Administrators to administer the 14 primary election in accordance with the legislature’s prescribed manner . . .” and “enjoin[] 15 the Clark County Administrators from conducting the primary election in accordance with 16 the published [CC] Plan”).) Further, that the Plan (or CC Plan) at issue may be 17 prospectively implemented is at best speculative and not supported by the allegations 18 asserted in the AC.8 19 /// 20 8In their response, Plaintiffs argue that if the Secretary in fact has authority to implement the Plan then the Plan controls through to the November general elections 21 based on the language in NRS § 293.247(1). (ECF No. 87 at 8.) The argument is contrary to both the Secretary’s expressed limitation of the Plan to the Primary and the language 22 of § 293.247(1). Plaintiffs appear to contort the language of the section to have it say what 23 they want it to say—that the Plan permanently controls all elections until replaced by other regulations. (See id.) But the ordinary reading of § 293.247(1) does not support this 24 contention. See NRS § 293.247(1) (“Permanent regulations of the Secretary of State that regulate the conduct of a primary, general, special or district election and are effective on 25 or before the last business day of February immediately preceding a primary, general, special or district election govern the conduct of that election.”). Not only was the Plan not 26 intended to be permanent, it was expressly confined to the Primary. Notably, there is no 27 indication on the Secretary’s website that the November election will be subject to the Plan or be an all-mail-in election. See Nevada Secretary of State, 28 https://www.nvsos.gov/sos/elections/election-information (last visited July 31, 2020). 2 elections, those provisions and their conceivable forms are not before this Court for 3 consideration.9 The Court takes caution within its limited jurisdiction to decide only matters 4 that are presently and properly before it. Even if the State of Nevada were to, for example, 5 adopt a statutory scheme for state-wide all-mail-in elections in the future, the Court 6 imagines that the challenges to such a statute would raise materially different contentions 7 than which Plaintiffs currently raise. To be sure, Plaintiffs’ current contentions chiefly 8 revolve around the premise that the Secretary and local county officials acted beyond the 9 scope of election laws prescribed by the state’s legislature. Such a theory would likely no 10 longer be valid where, for example, the state’s legislature itself vote to adopt a statutory 11 scheme. If such a time comes, then it is additionally conceivable that different issues and 12 different (or additional) parties and thus a different controversy will be before the Court for 13 consideration. For all these reasons, the Court additionally concludes the second prong 14 has not been met. 15 In sum, on the record before this Court, even if Plaintiffs’ claims stood on firmer 16 grounds, Plaintiffs can no longer obtain effective relief because the Primary has already 17 occurred and the claims and relief Plaintiffs requested are precisely tied to the Primary 18 and the execution of the Plan (and the CC Plan) as specifically implemented by the 19 Secretary and local officials in response to the COVID-19 pandemic. The Court therefore 20 finds this case moot and will dismiss it on this ground. 21 /// 22 /// 23 Further, the section lists the types of election in the disjunctive supposing that discrete regulations would apply to each. 24 9The Court has considered Plaintiffs’ contentions that an all-mail-in election has 25 been recommended or suggested in Clark County for the upcoming November general election and that similar lawsuits are (or may be) in the pipeline. (ECF No. 87 at 7–8.) But, 26 as the Court notes infra, there are likely substantive and meaningful distinctions between this lawsuit as currently framed and future lawsuits. Any current Clark County 27 recommendation is not a provision, law, or statute creating a ripe issue for review. Any question as to how such recommendation affects this case is no more than guess work at 28 this juncture. Moreover, Clark County specific plans are not tantamount to a statewide V. CONCLUSION 2 The Court notes that the parties made several arguments and cited to several cases 3 || not discussed above. The Court has reviewed these arguments and cases and determines 4 || that they do not warrant discussion as they do not affect the outcome of the issues before 5 || the Court. 6 It is therefore ordered that this case is now dismissed as moot. The Court therefore 7 || does not consider the merits of Plaintiffs’ claims. 8 It is further ordered that the pending motions to dismiss (ECF Nos. 71, 77) are Q || thereby moot and denied accordingly. 10 The Clerk of the Court is directed to enter judgment in accordance with this order 11 || and close this case. 12 DATED THIS 31* day of July 2020. ASLQ- 44 / — MIRANDA M. DU 15 CHIEF UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 12