STANLEY WILLIAM PAHER, еt al. v. BARBARA CEGAVSKE, in her official capacity as Nevada Secretary of State, et al.
Case No. 3:20-cv-00243-MMD-WGC
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
April 30, 2020
Document 57
I. SUMMARY
Contending with the novel coronavirus disease (“COVID-19“) pandemic, Nevada‘s Secretary of State Barbara Cegavske (the “Secretary“), in partnership with Nevada‘s 17 county election officials, developed a plan to implement an all-mail election for the upcoming June 9, 2020 Nevada primary in order to diminish the spread of COVID-19 (the “Plan”1). Relevantly, there are currently five states in the western United States that conduct elections entirely by mail: Oregon, Washington, Colorado, Utah, and Hawaii. Nevada also currently allows for mail-in voting in certain mailing precincts—separate from absent ballot precincts—with no reported incidents of election fraud. It is also undisputable that under
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Plaintiffs William Paher, Gary Hamilton, and Terresa Monroe-Hamilton here sue the Secretary and Deanna Spikula—Registrar of Voters for Washoe County (“Washoe Registrar“)—chiefly claiming that the Plan is not “chosen” by Nevada‘s Legislature, and that an all-mail election strips voter-fraud-prevention safeguards and unconstitutionally violates Plaintiffs’ right to vote due to purported vote dilution. (ECF No. 1.) Upon these contentions and others, Plaintiffs seek a preliminary injunction to stop the Plan (“PI Motion“).
The Court finds that Plaintiffs have not established an injury particularized to them to confer standing. However, even if they can establish standing, Plaintiffs’ claims fail on the merits and the other relevant factors for preliminary injunctive relief counsel against the Court enjoining Defеndants from implementing the all-mail election provisions of the Plan. The Court finds that Defendants’ interests in protecting the health and safety of Nevada‘s voters and to safeguard the voting franchise in light of the COVID-19 pandemic far outweigh any burden on Plaintiffs’ right to vote, particularly when that burden is premised on a speculative claim of voter fraud resulting in dilution of votes. The Court will therefore deny the PI Motion.2
II. BACKGROUND
The following facts are taken from the Verified Complaint and exhibits attached thereto as well as the evidence submitted concerning the PI Motion.
A. The Parties
This action stems from the decision to hold the all-mail primary (i.e., to implement the Plan‘s mailing provisions), which was announced to the public on March 24, 2020.
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(ECF No. 1-1.) The Plan applies only to Nevada‘s June 9, 2020 primary election. (Id.) The parties are described as follows.
Plaintiffs are all registered Nevada voters. (ECF No. 1.) Stanley resides in Reno, Nevada and typically рarticipates in in-person early voting. (Id.) Terresa Monroe-Hamilton and Garry Hamilton (together, “Hamiltons“) are married, recently moved to Nevada, and also reside in Reno. (Id.) The Hamiltons ordinarily vote early or in person on election day. They registered to vote online the day before filing this lawsuit. (Id.)
The Secretary is the Chief Officer of Elections for the State of Nevada, see
B. Impetus and Concerns that Led to the Plan
The decision to implement the Plan was made to “maintain a high level of access to the ballot, while protecting the safety of voters and poll workers[—who belong to groups who are at high risks for severe illness from COVID-19—].” (ECF No. 1-1.)
Because of the many uncertainties surrounding the COVID-19 pandemic, as well as the immediate need to begin preparations for the 2020 primary election, it became necessary for me to take action regarding how the election will be conducted.
She further states that she, along with Nevada‘s 17 county election officials, “jointly” determined that “the best option for the primary election is to conduct an all-mail election.” (Id.) The Secretary‘s announcement of the Plan emphasized that election officials are focused on also maintaining the integrity of the election: “the high standard Nevada has set for ensuring the security, fairness, and accuraсy of elections will still be met.” (Id.)
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C. The New Details of the Plan and Maintained Election Safeguards
Under the Plan, all active registered voters will be mailed an absentee ballot (mail-in ballot) for the primary election. If a voter is registered to vote at his or her current address, they need not take any further action to receive an absentee ballot. (E.g., ECF No. 1-3.) If an individual is not registered or needs to update registration information (e.g., name, address, and party), they are required to do so. (Id.) To accommodate same-day registration requirements enacted by the 2019 Nevada Legislature, the Plan also establishes at least one physical polling place in each of Nevada‘s counties and in Carson City. (ECF No. 1-1.)
The Plan otherwise maintains Nevada‘s election system and safeguards. (See ECF No. 21 (Decl. of Wayne Thorley, Deputy of Elections for the Secretary).) For examрle,
When voter registration applicants register (1) by mail, (2) through the DMV by appearing in person or using the DMV‘s on-line system, or (3) via the Secretary of State‘s on-line system, the overwhelming majority of those applicants are positively matched to the personal identifiers on file with the DMV or the SSA. (Id.) The match is made through automated systems, which the Secretary finds to be highly reliable. (Id.) Voters who are positively matched to personal identifiers on file with the DMV or SSA are not required to present identification and proof of residency before voting, even if they are voting for the first time in Nevada. (Id.) They can simply vote in person or by mail without submitting to
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additional verification processes. (Id.) Voters who are not positively matched3 to personal identifiers on record with the DMV or SSA must present identification and proof of residency before voting (referred to as “ID required voters“). (Id.) These ID required voters constitute less than 1% of all registered voters. (Id.) They have different ballot return envelopes than
Penalties against fraudulent votes are provided for under, inter alia,
D. Nevada‘s Election System Already Permits Mail-in Ballots in Mailing Precincts
Nevada‘s governing statutes provide for mailing precincts—specifically
Mailing precincts, as opposed to absent ballot precincts, have been used in Nevada—albeit on a small scale—for many years. (ECF No. 21 at 3.) In recent Nevada elections, a statistically significant numbers of ballots were cast by the voters in mailing precincts, providing a reasonable sample of ballots cast without incidents of election fraud. (Id.) The number of ballots that voters recently cast in mailing precincts are: 2018 General election (3,879); 2018 Primary election (2,273); 2016 General election (6,069); 2016 Primary election (362); 2014 General election (4,288). (Id.)
E. Lawsuit
Plaintiffs filed this lawsuit on April 21, 2020. The Verified Complaint asserts five claims for relief, detailed infra, and requests declaratory and injunctive relief to prevent the Secretary and county administrators from implementing the Plan. (ECF No. 1 at 8–13.) Plaintiffs particularly challenge the Plan‘s expansion of mail-in voting or in their characterization, “[t]he Plan would require the State to forego almost all in-person voting and instead conduct the Primary by mailed absent ballots.” (ECF No. 1 at 9.) Plaintiffs contend that the largely all-mail primary circumvents various statutory safeguards designed to protect against voter fraud, and that their votes will as a result be diluted by illegal votes. (E.g., id., at 2, 9, 12.)
Along with the Verified Complaint, Plaintiffs filed the PI Motion, a motion to expedite briefing and hearing on the PI Motion, and a motion to consolidate the requested hearing on the PI Motion with hearing on the merits of Plaintiffs’ Verified Complaint (“Consolidation Motion“). (ECF Nos. 1, 2, 3,4.) The Court granted the motion to expedite in part (ECF No. 14) and later granted the Consolidation Motion under
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III. PI MOTION STANDARD
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 (2006); see also id. at 428 (citing Ashcroft v. ACLU, 542 U.S. 656, 666 (2004)).
IV. DISCUSSION
Plaintiffs’ claims are that the Plan: (1) violates the right to vote by removing safeguards against fraudulent votes that dilute votes, which they claim is a severe burden; (2) violates the right to vote for legislative representatives to establish the manner of elections by substituting a scheme that replaces the Nevada Legislature‘s plan; (3) violates the right to vote under the Purcell5 principle; (4) violates Plaintiffs’ right to have, and to vote in, federal elections where the manner of election is chosen by the state‘s legislature; and (5) violates the right to a republican form of government under the United States
Constitution. (ECF No. 2 at 7–20.) Defendants and Intervenor-Defendants raise threshold issues about Plaintiffs’ claims that the Court will address before turning to the merits.6
A. Standing
Both Defendants and Intervenor-Defendants argue that Plaintiffs lack standing to assert their claims. (ECF No. 25 at 11–16; ECF No. 28 at 8–10; ECF No. 27-1 at 9–11.) The Court agrees.
“Article III of the Constitution limits federal-court jurisdiction to ‘Cases’ and ‘Controversies.‘” Massachusetts v. EPA, 549 U.S. 497, 516 (2007). “To satisfy Article III‘s standing requirements, a plaintiff
Among other things, the Secretary argues that Plaintiffs lack standing because their alleged injury is speculative and at best Plaintiffs hint at a possible injury only in the first claim for voter dilution. (ECF No. 28 at 8–10.) Washoe Registrar similarly argues that Plaintiffs’ injury is speculative, unsupported and not particularized. (ECF No. 25 at 11–16.) Intervenor-Defendants make the same arguments, but more fully argue why Plaintiffs have not alleged an injury-in-fact. (ECF No. 27-1 at 9–11.) Intervenor-Defendants contend, inter alia, that Plaintiffs do not allege an injury-in-fact because Plaintiffs’ “purported injury is no
/// different than that of any other voter in Nevada (or any other citizen who will be governed by the candidates elected through Nevada‘s elections, for that matter).” (Id. at 10.) In briefing and at the Hearing, Plaintiffs counter that they have standing, in gist arguing that mail-in ballots are unlawful under state law, resulting in vote dilution, and that vote dilution from voter fraud results in disenfranchisement, and “disenfranchisement is a severe burden that is personal to the person disenfranchised.” (E.g., ECF No. 43 at 4, 7.)
Plaintiffs’ argument is difficult to track and fails to even minimally meet the first standing prong. The theory of Plaintiffs’ case, and which is the only alleged injury driving all of their claims, is that the Plan will lead to an increase in illegal votes thereby harming them as rightful voters by diluting their vote. (See generally ECF No. 1.) But Plaintiffs’ purported injury of having their votes diluted due to ostеnsible election fraud may be conceivably raised by any Nevada voter. Such claimed injury therefore does not satisfy the requirement that Plaintiffs must state a concrete and particularized injury. See, e.g., Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (citation omitted) (providing, inter alia, that an injury must be “concrete and particularized“); Lujan v. Defs. of Wildlife, 504 U.S. 555, 573–74 (1992) (explaining that U.S. Supreme Court‘s case law has “consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen‘s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy“). This is not a pioneering finding. Other courts have similarly found the absence of an injury-in-fact based on claimed vote dilution. See, e.g., Am. Civil Rights Union v. Martinez-Rivera, 166 F. Supp. 3d 779, 789 (W.D. Tex. 2015) (“[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.“); cf. United States v. Florida, No. 4:12cv285-RH/CAS, 2012 WL 13034013, at *1 (N.D. Fla. Nov. 6, 2012) (rejecting a motion to
The Secretary additionally argues that she did not violate state law—because she was authorized to implement the Plan under
Even if the Court had concluded that Plaintiffs have standing here, Plaintiffs’ claims also fail on the merits.8
B. The Merits of Plaintiffs’ Claims
In the PI Motion, Plaintiffs focus chiefly on likelihood of success on the merits, arguing that they are likely to succeed on each of their claims. (See ECF No. 2 at 7–20.) In considering the merits of Plaintiffs’ claims, the Court finds that Plaintiffs’ second, fourth, and fifth claims are in many ways materially intertwined, as discussed infra. The Court ultimately concludes that Plaintiffs fail to establish the merits of each claim. While the Court therefore need not further consider the Winter factors, the Court also finds that the balance of equities favors Defendants and Intervenor-Defendants and that injunction would not be in the public‘s interest.9
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1. Plaintiffs’ First Claim
Plaintiffs’ predominant claim, on which they expend most of their bandwidth, is that the Plan violates the fundamental right to vote by removing safeguards against fraudulent votes—that they claim are attendant to in-person and request-only-absentee-ballot voting—that dilute votes. (ECF No. 2 at 7–15; ECF No. 43 at 3.) The Court addresses some threshold issues before turning to the merits (i.e., whether Plaintiffs have established a constitutional violation).
As an initial matter, the Court must determine the applicable test/analytical framework for considering this argument. Plaintiffs specifically present the Anderson-Burdick balancing test/line of cases and the Reynolds-Bush line of cases as the possible frameworks for this case (ECF No. 2 at 8–9). Compare Anderson v. Celebrezze, 460 U.S. 780, 788–89 (1983) & Burdick v. Takushi, 504 U.S. 428, 434 (1992) with Reynolds v. Sims, 377 U.S. 533 (1964) & Bush v. Gore, 531 U.S. 98 (2000) (per curiam). Plaintiffs argue that the latter should govern the case because they claim that voter disenfranchisement in the form of vote dilution is at issue here and that the Anderson-Burdick balancing test is not suitable for such claims. (See id. at 9.) They additionally posit that the Anderson-Burdick line of cases should not apply because the Plan being challenged is not a state-enacted election law, to which they appear to concede the Anderson-Burdick balancing test would typically apply. (See id.) Defendants and Intervenor-Defendants argue that the Court should, like other courts, apply the Anderson-Burdick balancing test where it is alleged that an election law or policy violates the right to vote. (ECF No. 28 at 7; ECF No. 27-1 at 14–15; ECF No. 25 at 18.)
The Court will apply the Anderson-Burdick balancing test. The Court finds Plaintiffs’ reasons for the Reynolds-Bush framework and for rejecting the Anderson-Burdick balancing test, which Plaintiffs admit is ordinarily applicable to these types of cases, unpersuasive. For оne, as will be explained infra, the Court disagrees with Plaintiffs that the Plan does not constitute state-enacted election law. Further, Plaintiffs provide no case where a Reynolds-Bush framework was applied within a context similar to the instant one. (See id. at 9–15.) To be sure, while Plaintiffs present this case as one about voter disenfranchisement due to purported vote dilution as a result of voter fraud; their claim of voter fraud is without any factual basis.10 Regarding the latter, Plaintiffs notably moved to consolidate the hearing on the PI Motion with a motion on the merits of the Verified Complaint, contending that the merits of this case turns on “purely legal issues.” (E.g., ECF No. 4 at 1.) Moreover, at least one case more recent than Reynolds, Anderson, Burdick, and Bush—Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 190 (2008)—applies the Anderson-Burdick balancing test.11
Plaintiffs next argue that if the Court applies the Anderson-Burdick balancing test, the Court should apply strict scrutiny in evaluating the burdens caused by the Plan. (ECF No. 2 at 8.)12 But the Supreme Court has not been so exacting. In Crawford, the Court reiterated that it has not “identif[ied] any litmus test for measuring the severity of a burden that a state law imposes on a political party, an individual voter, or a discrete class of voters. However slight that burden may appear, as Harper [v. Virginia Bd. Of Elections], 383 U.S. 663 (1966) demonstrates, it must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.‘” Id. at 190 (quoting Norman v. Reed, 502 U.S. 279, 288–89 (1992)); see also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359 (1997) (“No bright line separates permissible election-related regulation from unconstitutional infringements.“). But, “[w]hen a state election law
/// provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State‘s important regulatory interests are generally sufficient to justify’ the restrictions.” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 788; see Crawford, 553 U.S. at 189–90 (internal quotation and citations omitted) (“[E]venhanded restrictions that protect the integrity and reliability of the electoral process itself are not invidious.“).
As the Supreme Court did in Crawford, this Court begins its analysis of the constitutionality of the Plan‘s all-mail provision by focusing on the state‘s interests. See id. at 191. Here, thе Secretary, acting on behalf of the State of Nevada, has identified at least two interests that justify the burdens that the Plan imposes on voters and potential voters like Plaintiffs. The Secretary expressly implemented the Plan to protect the health and safety of Nevada‘s voters and to safeguard the voting franchise. (E.g., ECF No. 1-1.) These are indisputably compelling and longstanding interests. For example, the states’ police powers over matters of public health and safety and to act over the general welfare of their inhabitants is entrenched in the rights reserved to the state under the Tenth Amendment to the United States Constitution. See also Reynolds, 377 U.S at 554 (“Undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections.“).
On the other hand, and as the Secretary puts it (ECF No. 28 at 8), Plaintiffs cannot demonstrаte a burden upon their voting rights, only an imposition upon their preference for in-person voting—as opposed to mail-in voting, where ballots are mailed to voters. The same can be said regarding Plaintiffs’ emphasis on request-only-absentee-ballots, where ballots are sent to voters only if they request one. (ECF No. 2 at 12–13, 17, 21.) Cf. McDonald v. Bd. of Election Commissioners, 394 U.S. 802, 807 (1969) (providing that the right to absentee voting (i.e., a preference where other voting options exists) is not a fundamental right because it does not in fact put the right to vote at stake). Further, Plaintiffs’ overarching theory that having widespread mail-in votes makes the Nevada
/// election more susceptible to voter fraud seems unlikely where the Plan essentially maintains the material safeguards to preserve election integrity. (See ECF Nos. 1-1, 21.)
Moreover, although Plaintiffs cloak their preference in a claim of voter disenfranchisemеnt (e.g., ECF No. 2 at 8, 9, 17; ECF No. 43 at 7), Defendants may equally claim that voters will be disenfranchised. For example, if the Plan is not implemented voters worried about risks to their health or unsure about how to obtain an absentee ballot may very well be discouraged from exercising the right to vote all together. Additionally, as Defendants also point out, under the Plan, Plaintiffs may—if they choose to exercise
2. Plaintiffs’ Second and Fourth Claims
For efficiency, the Court discusses Plaintiffs’ second and fourth claims in a single section because the two overlap. As noted above, Plaintiffs’ second argument is that the Plan violates the right to vote for legislative representatives to establish the manner of elections by substituting a scheme that replaces the Nevada Legislature‘s plan. (ECF No. 2 at 15–16.) This argument is expressly premised on Plaintiffs’ fourth contention. (See id. at 16; see also ECF No. 43 at 7–8 (explaining that the violation in the second claim results due to the Plan allegedly disregarding the legislature‘s chosen manner of elections—which is captured by the fourth claim).) The latter is that the Plan violates Plaintiffs’ right to have, and to vote in, federal elections where the manner of election is chosen by the state‘s legislature under Article I, section 4, clause 1 of the United States Constitution.13 (Id. at 3–
/// 5, 17–18.) To be clear, both arguments rest on the claim that the Plan contravenes Nevada‘s Legislature/representatives’ chosen manner of election.
Plaintiffs appear to classify the June 9, 2020 Nevada Primary as a “federal” election because “[c]andidates for the office of U.S. Representative are on the Primary ballot.” (Id. at 17.) Assuming that this primary constitutes a “federal election,” the Court disagrees with Plaintiffs’ material premise—that the Plan is not the Legislature‘s chosen manner of election.
The Nevada Legislature has authorized the Secretary to enact voting regulations under
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 prоvisions of [the election laws under Title 24—NRS Chapters 293–306].
Plaintiffs nonetheless argue that the Plan is inconsistent with the state‘s election laws, contrary to
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 оr district
election and are effective on or before the last business day of
thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of ch[oo]sing Senators.
/// 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.)
Plaintiffs particularly pinpoint four ways in which they believe the Plan is “inconsistent” with election laws. Defendants and Intervenor-Defendants largely ignore the minutiae of these purported inconsistencies. They insteаd directly argue that the all-mail provisions of the Plan were lawfully prescribed pursuant to, inter alia,
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First, Plaintiffs argue that the Plan is untimely, seemingly based on the last sentence in subsection 1 of
Second, Plaintiffs argue that the Plan is inconsistent with certain requirements under
The first provision,
/// election precincts and maps showing the precincts’ boundaries had to be established by March 18, 2020. (Id.)
However, the Plan would not violate the date requirements of
In any event, the Court finds that Plaintiffs’ argument does not support a conclusion that the Plan is inconsistent. It is obvious that the Plan does not alter the establishment of precincts nor their existence as a matter of fact. The Secretary echoes this in her opposition. (See ECF No. 28 at 6 (“[T]here were no changes to precinct boundaries . . . [t]he only change was to the method of voting within existing precinct boundaries.“).) On its face, the Plan simply supersedes the need to appear at a physical precinct as the Secretary found “necessary” due to the COVID-19 pandеmic. (See ECF No. 1-1 (the Secretary explaining that the Plan was enacted because in light of the uncertainties surrounding the COVID-19 pandemic, “it became necessary for me to take action regarding how the election will be conducted“).)
Moreover, the Court finds that the Secretary has authority based on the plain reading of
Finally, Plaintiffs contend in briefing, without citing to any particular provision, that where mailing precincts are created, “county clerk[s] shall, at least 14 days before establishing or designating a precinct as a mailing precinct . . . cause notice of such action to be: (a) Posted [as prescribed] . . . ; and (b) Mailed to each Assemblyman, [etc. as prescribed]” and argue that the Plan “supplant[s]” this requirement. (Id. at 5.) The Court nonetheless confirmed that the applicable provision is
In sum, the Court finds that Plaintiffs’ various arguments that the Plan‘s all-mail election provisions are inconsistent with Nevada‘s election laws and thereby violate the U.S. Constitution all fail. The Court turns to Plaintiffs’ fifth claim.
3. Plaintiffs’ Fifth Claim
Plaintiffs’ fifth claim essentially extends from Plaintiffs’ second and fourth arguments. In this claim, Plaintiffs argue that the Plan violates the right to a republican form of government under the United States Constitution,
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4. Plaintiffs’ Third Claim
Plaintiffs’ third claim is that the Plan violates the right to vote under the Purcell principle. (ECF No. 2 at 16–17.) It is not clear that this is even a cognizable claim, though Plaintiffs’ contention contains other defects that render the purported claim meritless, which the Court discusses.
In Purcell, the Supreme Court vacated an order of the Court of Appeals for the Ninth Circuit enjoining operation of Arizona voter identification procedures. 549 U.S. at 2. The Supreme Court‘s ultimate ruling to vacate the Ninth Circuit‘s order resulted in the subject Arizona election proceeding “without an injunction.” Id. at 6.
The ruling district court had denied the plaintiffs’ request for an injunction to enjoin Arizona‘s voter identification requirements. Id. at 3. In ruling, the district court did not issue findings of facts or сonclusions of law. Id.17 The plaintiffs appealed and the Ninth Circuit set forth a briefing schedule that would have closed two weeks after the election. Id. The circuit court ultimately issued a four-panel order, about a month before the election, enjoining the enforcement of the Arizona requirement pending disposition after full briefing. Id. The court “offered no explanation or justification” for its decision in the order or upon a subsequent reconsideration. Id.
The Supreme Court‘s decision to vacate the Ninth Circuit‘s order emphasized the “imminence of the election and the inadequate time to resolve the factual disputes” as well as the possibility that a court‘s order, or conflicting orders concerning election provisions, may result in voter confusion. Id. at 4–6.18 The Court underscored that such possibility
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/// should caution courts in deciding whether to grant or deny an injunction as an electiоn draws closer. Id.
This Court finds, as argued by Defendants (ECF No. 25 at 21–23, ECF No. 28 at 11), Plaintiffs’ reliance on Purcell is wholly inapposite to Plaintiffs’ position and ultimate goal here—for the Court to issue an injunction.19 To be sure, Purcell does not appear to support the Court deciding the PI Motion. Nonetheless, the Court considers and rejects Plaintiffs’ specific contention that, as to courts, Purcell “applies to state and local election administrators” because “election-altering actions pose the same risk” as to both. (Id. at 16; see also id. at 17.) Plaintiffs provide no support for treating courts and states the same under Purcell. Clearly, courts and states serve very different functions in our
In sum, the Court finds that Plaintiffs have not established the merits of any of their five claims raised in the Verified Complaint.
C. Balancing of the Equities
The Court further finds that a balancing of the equities favors Defendants and Intervenor-Defendants.
“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 indicated above, even accepting Plaintiffs’ purported harm to them of being disenfranchised due to vote dilution, such disenfranchisement could be, even more concretely, claimed in the absence of the Plan (and additionally by confusion that may result by the Court enjoining the Plan, and aрpeal—which would surely follow). The Court therefore concludes that, at minimum, the Plan‘s all-mail election implementation to protect the public during a public health crisis tips the scale of equity in favor of Defendants and Intervenor-Defendants (i.e., against the issuance of an injunction).
D. The Public Interest
“In 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. It is clear that as triggered by the uncertainties of COVID-19, the public‘s interests align with the Plan‘s all-mail election provisions. As provided above, an injunction precluding Defendants’ use of mail ballots in the June 9, 2020 Primary would put Nevadans at risk and may result in the very type of confusion that Purcell cautions against.
In short, the Court finds that Plaintiffs have not proven that they are entitled to have this Court enjoin the Plan‘s challenged provisions.
V. CONCLUSION
The Court notes that the pаrties 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.
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It is therefore ordered that Plaintiffs’ motion for preliminary injunction (ECF No. 2) is denied for the reasons provided herein.
DATED THIS 30th day of April 2020.
MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE