DONALD J. TRUMP FOR PRESIDENT, INC., et al, Plaintiff(s), v. BARBARA CEGAVSKE, Defendant(s).
Case No. 2:20-CV-1445 JCM (VCF)
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
September 18,
James C. Mahan, U.S. District Judge
Document 47
ORDER
Presently before the court is defendant Barbara Cegavske, Nevada Secretary of State‘s, motion to dismiss the first amended complaint. (ECF No. 37). Plaintiffs Donald J. Trump for President, Inc. (“Trump campaign“), the Republican National Committee, and the Nevada Republican Party responded. (ECF No. 42). Defendant replied. (ECF No. 45).
I. Background
On August 3, 2020, Nevada joined the growing ranks of states that have expanded mail-in voting due to the COVID-19 pandemic.1 See Assembly Bill No. 4 of the 32nd Special Session (2020) of the Nevada Legislature, Act of August 3, 2020, ch. 3, 2020 Nev. Stat. 18, §§ 1–88 (“AB 4“). The Nevada State Legislature passed Assembly Bill 4 (“AB 4“), which codified procedures for elections impacted by emergencies or disasters.2 Specifically, the law directs city and county election officials to mail paper ballots to all active registered voters in Nevada. AB 4 at § 15.
The next day, plaintiffs filed this instant suit.3 (ECF No. 1). They challenge several key provisions of AB 4:
Section 20(2) of AB 4 establishes a presumption that a ballot was cast in time, as long as it is received by election officials before 5 p.m. on the third day after the election, even if it lacks a postmark.4 AB 4 at § 20(2). Plaintiffs allege that section 20(2) is preempted by federal laws that set
Sections 11 and 12 of AB 4 require election officials to establish a minimum number of in-person voting locations for early voting and election-day voting, respectively. AB 4 at §§ 11, 12. A county with a population of “700,000 or more” must establish at least 100 voting centers for election day. Id. at § 12. A county with a population of “100,000 or more but less than 700,000” must establish at least 25 voting centers. Id. And a county with a population of “less than 100,000” may establish one or more voting center. Id. Plaintiffs allege that sections 11 and 12 authorize the disparate treatment of rural voters in violation of the Equal Protection Clause, because there will be “more in-person voting places per capita for voters in urban counties than in rural counties.” (ECF No. 29 at ¶ 100). Plaintiffs speculate that rural Nevada counties will have substantially higher numbers of registered voters per in-person voting location than urban counties such as Washoe. (Id. at ¶¶ 130–138).
Section 22 of AB 4 requires election officials to establish “procedures for the processing and counting of mail ballots” for any affected election.6 AB 4 at § 22. Section 25 provides that “if two or more mail ballots are found folded together to present the appearance of a single ballot” and “a majority of the inspectors are of the opinion that the mail ballots folded together were voted by one person, the mail ballots must be rejected.”7 AB 4 at § 25(2). Plaintiffs allege that sections 22 and 25 violate the Equal Protection Clause, because they authorize “‘standardless’ procedures” across counties and cities for processing, inspecting, and counting mail ballots with no “specific rules designed to ensure uniform treatment” and no “‘minimal procedural safeguards.‘” (ECF No. 29 at ¶¶ 145, 159 (quoting Bush v. Gore, 531 U.S. 98, 105–106 (2000) (per curiam)).
And finally, plaintiffs allege that all of the aforementioned provisions of AB 4, along with section 21,8 “facilitate fraud and
On August 20, 2020, plaintiffs amended their complaint without altering the parties or their claims. (ECF No. 29). Defendant now moves to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). (ECF No. 37).
II. Legal Standard
Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). “A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).
A. Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) allows defendants to seek dismissal of a claim or action for a lack of subject matter jurisdiction. Dismissal under Rule 12(b)(1) is appropriate if the complaint, considered in its entirety, fails to allege facts on its face sufficient to establish subject matter jurisdiction. In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984–85 (9th Cir. 2008).
Plaintiffs bear the burden of proving that the case is properly in federal court to survive a Rule 12(b)(1) motion. McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). They must plead “the existence of whatever is essential to federal jurisdiction, and, if [plaintiffs] do[] not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect be corrected by amendment.” Smith v. McCullough, 270 U.S. 456, 459 (1926).
B. Article III Standing
Standing to sue is a “doctrine rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The doctrine “limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Id. In this way, standing “serves to prevent the judicial process from being used to usurp the powers of the political branches.” Id. (quoting Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 408 (2013)); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 576–77 (1992).
To establish standing, plaintiff must plead three elements: (1) an injury in fact; (2) a causal connection between the injury and the alleged misconduct; and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560–61. The party invoking federal jurisdiction bears the burden of demonstrating that it has standing to sue. Id. at 561. “[A]t the pleading stage, the plaintiff must ‘clearly . . . allege facts demonstrating’ each element” of standing. Spokeo, 136 S. Ct. at 1547 (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).
“To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent[.]‘” Spokeo, 136 S. Ct. at 1548. Moreover, a concrete injury must actually exist and affect the plaintiff in a
Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, [plaintiff] could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.
Id. at 1549 (citing Summers v. Earth Island Institute, 555 U.S. 488, 496 (2009) (“[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation . . . is insufficient to create Article III standing.“)).
III. Discussion
Defendant argues that plaintiffs do not have standing to bring their claims for relief. (ECF Nos. 37, 45). This court agrees.
Plaintiffs attempt to establish standing in three ways: (1) associational standing to vindicate harms to their member voters, (2) direct organizational standing due to their need to divert resources, and (3) direct and associational standing to vindicate competitive injuries to their candidates. (ECF No. 42).
This court will address each of plaintiffs’ theories in turn.
A. Associational Standing for Voters
Plaintiffs argue that they have associational standing to vindicate the injuries caused to their member voters by AB 4. (ECF No. 42 at 10–13). These injuries are two-fold: an individual “right under the Constitution to have [your] vote fairly counted, without being distorted by fraudulently cast votes“—vote dilution—and an “arbitrary and disparate treatment of the members of its electorate“—violations of the Equal Protection Clause. (ECF No. 29 at ¶¶ 33, 35).
An entity may establish associational standing to bring suit on behalf of its members when: (1) “its members would otherwise have standing to sue in their own right;” (2) “the interests it seeks to protect are germane to the organization‘s purpose;” and (3) “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm‘n, 432 U.S. 333, 343 (1977).
This court finds that the Trump campaign fails to satisfy the second prong of associational standing: the interests of the voters are not “germane to the organization‘s purpose.” Id. The Trump campaign does not represent Nevada voters. The Trump campaign represents only Donald J. Trump and his “electoral and political goals” of reelection. (ECF No. 29 at ¶ 11). By statutory definition, a federal election candidate‘s “principal campaign committee” is simply a reserve of funds set aside for that campaign. See
In contrast to the Trump campaign, the Republican National Committee and Nevada Republican Party satisfy the second prong; the interests of their member voters are germane to their “organization‘s purpose.” See Hunt, 432 U.S. at 343. Still, however, plaintiffs’ member voters would not “otherwise have standing to sue in their own right.” Id.
To demonstrate the substantial risk of voter fraud, plaintiffs cite studies and news articles on the subject. (ECF No. 29 at ¶¶ 63–81). The news articles describe a parade of administrative problems in Wisconsin, New Jersey, Connecticut, and New York, states that “hurriedly” implemented mail-in voting for elections during the COVID-19 pandemic. (Id. at ¶¶ 63–75). Plaintiffs also point to reported irregularities in Nevada‘s June 2020 mail-in primary elections. (Id. at ¶¶ 57–62).
Even if accepted as true, plaintiffs’ pleadings allude to vote dilution that is impermissibly generalized. The alleged injuries are speculative as well, see Lujan, 504 U.S. at 560, but their key defect is generality. As a court in this district has already recognized, plaintiffs’ claims of a substantial risk of vote dilution “amount to general grievances that cannot support a finding of particularized injury as to [p]laintiffs.” Paher v. Cegavske, No. 3:20-cv-00243-MMD-WGC, 2020 WL 2748301, at *4 (D. Nev. May 27, 2020). Indeed, the key provisions of AB 4 apply to all Nevada voters. Plaintiffs never describe how their member voters will be harmed by vote dilution where other voters will not. As with other “[g]enerally available grievance[s] about the government,” plaintiffs seek relief on behalf of their member voters that “no more directly and tangibly benefits [them] than it does the public at large.” Lujan, 504 U.S. at 573–74; see Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 485 (1982) (“The proposition that all constitutional provisions are enforceable by any citizen simply because citizens are the ultimate beneficiaries of those provisions has no boundaries.“). Plaintiffs’ allegations are “precisely the kind of undifferentiated, generalized grievance about the conduct of government” that fail to confer Article III standing. Lance v. Coffman, 549 U.S. 437, 442 (2007).
As to plaintiffs’ equal protection claims, plaintiffs first argue that “[s]ections 11 and 12 of AB4 authorize disparate treatment of voters in rural counties” due to the law‘s differences in minimum number of in-person voting locations across counties and lack of further guidance on how election officials should make their determinations. (ECF No. 29 at ¶ 126). However, plaintiffs fail to demonstrate how these harms are redressed by their requested relief. “The proposition that plaintiffs must seek relief that actually improves their position is a well-established principle.” Townley v. Miller, 722 F.3d 1128, 1134 (9th Cir. 2013). AB 4 simply establishes a minimum number of in-person voting locations. AB 4 at §§ 11, 12. Removing this one safeguard does not alleviate plaintiffs’ concerns. In fact, it “worsen[s] plaintiffs’ injury rather than redressing it.” Townley, 722 F.3d at 1135 (“[I]f plaintiffs were to prevail in this lawsuit, . . . voters would no longer have the opportunity to affirmatively express their opposition at the ballot box at all. The relief plaintiffs seek will therefore decrease
Plaintiffs also claim that “AB 4‘s three-day, post-election receipt deadline for non-postmarked ballots—coupled with its deeming rule, the faster average mailing time in urban districts such as Clark County, and the postal service‘s practice of not postmarking prepaid mail—will likely result in significantly more untimely ballots being counted from urban areas.” (ECF No. 42 at 12). These injuries are too speculative to establish standing. Plaintiffs offer a patchwork theory of harm that does not rely on AB 4, but on the speed of the United States Postal Service, an entity out of defendant‘s control. (ECF No. 29 at ¶¶ 73–81, 90–97). A “future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will occur.” Susan B. Anthony List, 573 U.S. at 158. Even among the segment of voters who vote by mail, plaintiffs offer no indication that the alleged future injury is “certainly impending” or “substantial[ly]” likely. Id.
This court finds that plaintiffs do not have associational standing to represent their member voters.
B. Direct Organizational Standing
Plaintiffs next allege that they have direct organizational standing to bring their claims. (ECF No. 42 at 3–8). Organizational standing is recognized where the alleged misconduct of the defendant causes “a drain on [plaintiffs‘] resources from both a diversion of its resources and frustration of its mission.” Fair Hous. Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012) (quotation omitted); see Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (“Such concrete and demonstrable injury to the organization‘s activities—with the consequent drain on the organization‘s resources—constitutes far more than simply a setback to the organization‘s abstract social interests.“). Plaintiffs allege that AB 4 forces them “to divert resources and spend significant amounts of money educating Nevada voters . . . and encouraging them to still vote.” (ECF No. 29 at ¶ 17). Plaintiffs also briefly allege a need to divert resources to counteract voter fraud. (ECF No. 42 at 5 (citing Am. Civil Rights Union v. Martinez Rivera, 166 F. Supp. 3d 779, 800 (W.D. Tex. 2015))).
This court is unpersuaded by plaintiffs’ theory of organizational standing. Plaintiffs argue that AB 4 would “confuse” their voters and “create incentive to remain away from the polls.” (ECF No. 29 at ¶ 17). Outside of stating “confus[ion]” and “discourage[ment]” in a conclusory manner, plaintiffs make no indication of how AB 4 will discourage their member voters from voting. (ECF No. 29); see Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007), aff‘d, 553 U.S. 181 (2008) (holding that a “new law injures” a political party when it compels it “to devote
In making this fact-intensive finding, this court also notes the substantive differences between AB 4 and the laws challenged in plaintiffs’ cited authority. Compare AB 4, with Pavek v. Simon, No. 19-CV3000 (SRN/DTS), 2020 WL 3183249, at *14 (D. Minn. June 15, 2020) (finding organizational standing to challenge a state law which “requires that in Minnesota general elections, major political party candidates must be listed, on the ballot, in reverse order based on the average number of votes that their party received in the last state general election“); Democratic Nat‘l Comm. v. Reagan, 329 F. Supp. 3d 824, 841 (D. Ariz. 2018), rev‘d on other grounds sub nom. Democratic Nat‘l Comm. v. Hobbs, 948 F.3d 989 (9th Cir. 2020) (en banc) (finding organizational standing to challenge a state law that prohibits third-party ballot collection); Georgia Coal. for People‘s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251, 1258 (N.D. Ga. 2018) (finding organizational standing to challenge a state voter identification and registration law); Feldman v. Arizona Sec‘y of State‘s Office, 208 F. Supp. 3d 1074, 1080–81 (D. Ariz. 2016) (finding organizational standing to challenge a state law that “limits who may possess another‘s early ballot“); Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007), aff‘d, 553 U.S. 181 (2008) (finding organizational standing to challenge a state voter identification law). In these cases with organizational standing, the challenged law has a direct and specific impact on a voter‘s ability to vote. Indeed, a diversion of resources for education would be required in such situations. But here, the challenged law expands access to voting through mail without restricting prior access to in-person voting. Thus, as detailed above, plaintiffs need not divert resources to enable or encourage their voters to vote.
Plaintiffs also briefly argue that they will need to divert resources to fight voter fraud. (ECF No. 42 at 4–5). This court repeats its prior finding on vote dilution: it is a speculative and “generalized grievance” in this case. See Paher, 2020 WL 2748301, at *4 (finding no standing where plaintiffs failed to “state a particularized injury” and did no more than “speculatively connect the specific conduct they challenge . . . and the claimed injury [of] vote dilution“); Am. Civil Rights Union v. Martinez-Rivera, 166 F. Supp. 3d at 789 (“[T]he risk of vote dilution[ is] speculative and, as such, [is] more akin to a generalized grievance about the government than an injury in fact.“). Plaintiffs note in their response to defendant‘s motion to dismiss that they will need to
C. Direct and Associational Standing for Candidates
Finally, plaintiffs argue that they have both direct and associational standing to challenge “competitive harms” to their electoral candidates. (ECF No. 42 at 8). “Competitive standing” can exist when a state action will lead to the “potential loss of an election.” Drake, 664 F.3d at 783 (quoting Owen v. Mulligan, 640 F.2d 1130, 1132–33 (9th Cir. 1981)).
Plaintiffs seek to vindicate the rights of their candidates, because AB 4 will undermine the ability of “Republican candidates to receive[] effective votes in Nevada” by “confus[ing] voters, undermin[ing] confidence in the electoral process, and creat[ing] incentives to remain away from the polls.” (ECF No. 29 at ¶¶ 16–17). The pleadings make no showing of “an unfair advantage in the election process.” Drake, 664 F.3d at 783. Plaintiffs rely on conclusory statements on confusion and disincentives that this court has already found unpersuasive. See supra III.B. Plaintiffs seek to muster “competitive standing,” yet their candidates face no harms that are unique from their electoral opponents. Owen, 640 F.2d at 1132–33 (finding competitive standing where the postal service gave plaintiff‘s opponent a preferential mailing rate).
As to AB 4‘s disparate treatment of rural voters, this court repeats its prior findings: plaintiffs’ requested relief fails to satisfy redressability and the alleged harm is too speculative. See supra III.A. Enjoining Nevada election officials from enforcing AB 4 would not apparently improve the odds for plaintiffs’ candidates. See Drake, 664 F.3d at 783 (quoting Owen, 640 F.2d at 1132–33). Plaintiffs make no such allegations. Election officials would operate without the guidance of AB 4‘s minimum number of in-person voting locations. On plaintiffs’ theory as to Sections 20 and 22 of AB 4, plaintiffs have not established a “substantial risk” that their alleged harm will occur. Susan B. Anthony List, 573 U.S. at 158. Thus, neither plaintiffs nor their member candidates “have standing to sue in their own right.” Hunt, 432 U.S. at 343.
Ultimately, as plaintiffs concede, they hold “policy disagreements” with proponents of AB 4. (ECF No. 42 at 2). Although they purport to allege constitutional harms that go beyond these policy disagreements, at this juncture, plaintiffs’ allegations remain just that. (Id.). Since initiating this matter on August 4, 2020, (ECF No. 1), plaintiffs have not requested an injunction or expedited review. Plaintiffs ask for a remedy to cure the “confusion” caused by AB 4, yet they have positioned this case for last minute adjudication before the general election.10
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IV. Conclusion
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendant‘s motion to dismiss the amended complaint (ECF No. 37) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that defendant‘s motion to dismiss the original complaint (ECF No. 10) be, and the same hereby is, DENIED as moot.
IT IS FURTHER ORDERED that intervenor-defendants DNC Services Corporation/Democratic National Committee, Democratic Congressional Campaign Committee, and the Nevada State Democratic Party‘s motion to dismiss the amended complaint (ECF No. 40) be, and the same hereby is, DENIED as moot.
IT IS FURTHER ORDERED that plaintiff‘s motion for partial summary judgment (ECF No. 41) be, and the same hereby is, DENIED as moot.
IT IS FURTHER ORDERED that non-parties Walker River Paiute Tribe and Pyramid Lake Paiute Tribe‘s motion to intervene (ECF No. 43) be, and the same hereby is, DENIED as moot.
The clerk is instructed to close the case.
DATED September 18, 2020.
UNITED STATES DISTRICT JUDGE