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Luna v. Cegavske

United States District Court, D. Nevada

December 20, 2017

NORA LUNA, BILAL SHABAZZ, DIANE CRUMP-RICHMOND, SUSAN FLORINA, and DEMI FALCON, Plaintiffs,
v.
BARBARA CEGAVSKE, in her official capacity as the Nevada Secretary of State; and JOSEPH GLORIA, in his official capacity as the Clark County Registrar of Voters, Defendants.

          ORDER, FINDINGS & RECOMMENDATIONS RE: MOTION TO INTERVENE (ECF NO. 12)

          GEORGE FOLEY, JR. UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the Motion to Intervene (ECF No. 12) filed by the Public Interest Legal Foundation (“Foundation”) on October 30, 2017. The Plaintiffs filed their Opposition (ECF No. 27) on November 13, 2017, and the Foundation filed its Reply (ECF No. 41) on November 20, 2017. The Court conducted a hearing in this matter on December 13, 2017.

         BACKGROUND

         The Public Interest Legal Foundation (“Foundation”) moves to intervene in this action brought by Plaintiffs against the Nevada Secretary of State (“Secretary”) and the Clark County, Nevada Registrar of Voters (“Registrar”) challenging the efforts of third persons to recall three Nevada state senators pursuant to Article 2, Section 9 of the Nevada Constitution and Nevada Revised Statute (NRS) § 306. 015.[1] The Plaintiffs are registered voters, two of whom are Hispanics and two of whom are African Americans. They allege that the recall elections unduly burden and abridge their fundamental right to vote in violation of the First and Fourteenth Amendments to the United States Constitution. They also allege that “because the resulting burdens on the right to vote disproportionately impact racial and language minorities, any recall elections would also result in the denial and abridgement of the right to vote on account of race and language group, in violation of Section 2 of the Voting Rights Act.” Finally, Plaintiffs allege that “the recall elections threaten to upend the results of legitimate, democratic elections, as well as disrupt and impede a functioning republican form of government in violation of the Guarantee Clause of Article VI, Section 4 of the United States Constitution. Complaint (ECF No.1), at ¶ 4.

         Plaintiffs' complaint was filed on October 16, 2017. On November 6, 2017, Plaintiffs filed a motion for preliminary injunction to enjoin the Secretary and Registrar from holding a special election, or otherwise enforcing Nevada's recall laws with respect to the subject state senators. Motion for Preliminary Injunction (ECF No. 17). The Registrar filed a motion to dismiss Plaintiffs' action on November 8, 2017. Motion to Dismiss (ECF No. 23). The Secretary filed her opposition to Plaintiffs' motion for preliminary injunction, and motion to dismiss on November 16, 2017. Response (ECF No. 33); Motion to Dismiss (ECF No. 34). The parties have filed their respective responses and reply briefs to the motion for preliminary injunction and motions to dismiss. On November 21, 2017, the Court stayed the hearing on Plaintiffs' motion for preliminary injunction and Defendants' motions to dismiss pending resolution of the state court proceeding regarding the recall effort against Senator Woodhouse and the state verification proceedings regarding the recall effort against Senator Cannizzaro. Order (ECF No. 42).

         In her opposition to Plaintiffs' motion for preliminary injunction and motion to dismiss, the Secretary disputes Plaintiffs' assertion that Nevada's constitutional and statutory recall provisions violate the First and Fourteenth Amendments. She also disputes Plaintiffs' claim that Nevada's recall laws violate Section 2 of the Voting Rights Act, arguing that recalls do not constitute state action and are therefore outside the ambit of the Voting Rights Act. Motion to Dismiss (ECF No. 34), at 2, 8-11. The Secretary argues that the Voting Rights Act implements the Fifteenth Amendment, which forbids the race-based abridgment of voting rights by any state, and that Section 2 of the Act “disallows a voting ‘standard, practice, or procedure' from being discriminatorily imposed ‘by any State or political subdivision.'” Id. at 8. She argues that Nevada's recall law does not operate in any such discriminatory manner. She further argues that four United States Courts of Appeal have “confirm[ed] that the Voting Rights Act does not apply, for lack of state action, to direct-democracy procedures like initiative and recall.” Id. at 9 (citing Padilla v. Lever, 463 F.3d 1046, 1051 (9th Cir. 2006); Montero v. Meyer, 861 F.2d 603, 609-10 (10th Cir. 1988); and Delgado v. Smith, 861 F.2d 1489, 1496 (11th Cir. 1988)). In her motion to dismiss, the Registrar also argues that recall efforts against the state senators do not implicate state action and therefore do not give rise to claims against the Registrar under the Voting Rights Act or through the Fourteenth Amendment. Motion to Dismiss (ECF No. 23), at 2-6.

         The Secretary also discusses Smith v. Winter, 717 F.2d 191 (5th Cir. 1983), in which the court rejected the argument that the State of Mississippi's recall law violated the rights of African-American citizens under the Voting Rights Act by threatening the removal of officials for whom minority citizens had voted. The court stated that the “right to vote” means the same thing under the Voting Rights Act as under the Fifteenth Amendment. Id. at 198. The plaintiffs had pointed to no authority or rationale to support their interpretation of the right to vote and the court found none to support it. Id. As partly quoted by the Secretary, the Fifth Circuit stated:

It is [as] reasonable to assume that every elected official embodies the vote of at least some minority member. If we followed the plaintiff's view of the right to vote to its logical conclusion, every elected public official, whether a minority member or not, could [challenge in federal court] any state recall proceeding merely by alleging that the voting rights of an electorate containing at least one minority member were being discriminatorily abridged. Other absurd results are equally possible. For instance, if minority members vote for a candidate on the basis of a campaign promise and the candidate later breaches that promise with discriminatory effects, the minority voters could claim that their rights to vote have been rendered ineffective so as to give rise to claims under the Voting Rights Act.

Motion to Dismiss (ECF No. 34) at 10 (quoting Winter, 717 F.2d at 198-99).

         Finally, the Secretary argues that Plaintiffs' challenge to Nevada's recall law based on the Guarantee Clause involves a purely political question which is not justiciable. Id. at 11 (citing Pacific States Telephone & Telegraph v. Oregon, 223 U.S. 118, 141, 32 S.Ct. 224 (1912); State of Nevada v. Watkins, 914 F.2d 1545, 1559 (9th Cir. 1990) and State of Cal. v. United States, 104 F.3d 1086, 1091 (9th Cir. 1997)).

         The Foundation states that it is a charitable organization whose “mission includes working to protect the integrity of citizens' votes from dilution or abridgement, ensuring that voter qualification laws and election administration procedures are followed, and providing assistance to states that seek to enforce their constitutional mandate to determine the rules and laws pertaining to their own state elections.” Motion to Intervene (ECF No. 12), at 2. The Plaintiffs assert that the Foundation is an Indiana-based 501(c)(3) nonprofit legal organization that, according to its website, “‘exists to assists states and others to aid the cause of election integrity and fight against lawlessness in American elections.'” Opposition (ECF No. 27), at 4.

         In its proposed answer in intervention, the Foundation alleges four affirmative defenses which it would like to litigate in this action. First, it alleges that to the extent Plaintiffs' complaint alleges that Nevada's recall elections violate the Voting Rights Act because the elections deny or abridge the right to vote on account of membership in a language minority group, the references to “language minorities” and “language minority groups” are facially unconstitutional because they are inconsistent with the purpose of the Fifteenth Amendment and exceed Congress's authority to enforce the right to vote regardless of race as found in the Fifteenth Amendment. Second, to the extent that Plaintiffs' complaint alleges that Nevada's recall laws as applied to the recall efforts against the subject senators violate the Voting Rights Act because the elections deny or abridge the right to vote on account of membership in a language minority group, the references to “language minorities” and “language minority groups” in the Act is unconstitutional as applied because it is inconsistent with the purpose of and exceed Congress's authority under the Fifteenth Amendment. The Foundation alleges that “speaking a language other than English is not the same, or even congruent to, inherent immutable characteristics such as race.” Third, the Foundation alleges that the Plaintiffs improperly attempt to allege a claim under Section 2 of the Voting Rights Act by relying on a disparate impact standard which, if accepted, would push Section 2 beyond constitutional boundaries. In this regard, the Foundation alleges that Plaintiffs are attempting to import into Section 2, a provision of Section 5 of the Voting Rights Act which has never applied to Nevada, and which no longer applies in any state. Fourth, the Foundation alleges Plaintiffs cannot make the required showing of entitlement to relief under the Federal Rules of Civil Procedure by “‘mere labels and conclusions'” or “‘a formulaic recitation of the elements of a cause of action.” The Foundation argues that the factual allegations made by Plaintiff are either false or have no relevance to a claim under Section 2 of the Voting Rights Act. Motion (ECF No. 12), Exhibit 1, at 13-14.

         The Foundation argues that its interests in this litigation are different from those of the Defendants. It states that “the Defendants are not likely to press fully the constitutional defenses available in this case. Nor [are they] likely to press against the factual assertions contained in the Complaint as fully as they might.” The Foundation states that it is unrestrained by political concerns and can provide this Court with the ...


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