Fair Maps Nev. v. Cegavske

463 F.Supp.3d 1123

FAIR MAPS NEVADA, et al., Plaintiffs,

v.Barbara CEGAVSKE, in her official capacity as Nevada Secretary of State, et al., Defendants.

Case No. 3:20-cv-00271-MMD-WGC

United States District Court, D. Nevada.

Signed May 29, 2020

Adam Hosmer-Henner, Lucas Marshall Foletta, McDonald Carano Wilson, Reno, NV, for Plaintiffs.

Gregory Louis Zunino, Craig A. Newby, Nevada State Attorney General's Office, Carson City, NV, for Defendant Barbara Cegavske.

Mary-Anne M. Miller, Clark County District Attorney, Las Vegas, NV, for Defendant Registrar of Voters, Joseph P. Gloria.

Herbert B. Kaplan, Wade Carner, Washoe County District Attorney's Office, Reno, NV, for Defendant Deanne Spikula.

Craig R. Anderson, Brian R. Hardy, Marquis Aurbach Coffing, Las Vegas, NV, for Defendants Kristina Jakeman, Sadie Sullivan, Lacey Donaldson, Vanessa Stevens, Nichole Baldwin, Sandra Merlino, Tammi Rae Spero, Kathy Lewis, Linda Rothery, Lacinda Elgan, Lisa Lloyd, Lisa Hoehne, Christopher Nepper, Nikki A. Bryan.

Jason D. Woodbury, Carson City District Attorney's Office, Benjamin R. Johnson, State of Nevada - Office of the Attorney General, Jeng Daw Yu, Carson City, NV, for Defendant Aubrey Rowlatt.

ORDER

MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE

I. SUMMARY

The Court issues this order during the pandemic caused by the novel coronavirus SARS-CoV-2 that emerged at the end of 2019 ("COVID-19"). COVID-19 is central to Plaintiffs' challenge to a decision made by Defendant¹ Barbara Cegavske, Nevada's Secretary of State ("the Secretary"). More specifically, Plaintiffs² seek to place an initiative on the November 2020 ballot that would amend Nevada's State Constitution to create an independent redistricting commission in an effort to combat partisan gerrymandering. (ECF No. 1 at 1-4.) In light of COVID-19 and related stay-at-home orders, Plaintiffs asked the Secretary for an extension of the statutory deadline to submit the required signatures in support of their initiative, and a waiver of certain in-person requirements regarding the collection of signatures, but she refused, explaining she had no authority under the applicable statutes to grant their request. (Id. at 14.) This lawsuit followed.

Before the Court is Plaintiffs' motion for a preliminary injunction, asking the Court to compel the Secretary to extend the deadline and waive the in-person requirements ("PI Motion").³ (ECF No. 2.) The Court held a telephonic hearing on the PI Motion on May 21, 2020 (the "Hearing"). (ECF No. 38.) Nevada's Governor's emergency restrictive orders effectively barred Plaintiffs from circulating their initiative petition for signature for a period of about six weeks. Such circumstances compel a finding that Plaintiffs have shown they are likely to prevail on the merits of their as applied challenge as to the statutory provision setting the deadline, but not the in-person requirements—and as further explained below—the Court will grant the PI Motion in part, and deny it in part.

II. BACKGROUND

The following facts are taken from the Complaint and exhibits attached thereto as well as the briefing and evidence submitted concerning the PI Motion. The Court begins by briefly outlining the state constitutional and statutory scheme that governs Plaintiffs' attempt to get its initiative petition to amend Nevada's constitution on the November 2020 ballot.

A. Nevada's Ballot Initiative Scheme

The people of Nevada reserved their right to amend Nevada's constitution through initiative petitions when they enacted it. See Nev. Const. art. XIX, § 2(1). But a certain percentage of Nevada voters must support a proposed constitutional amendment in a ballot initiative for it to appear on the general election ballot for approval by a majority of Nevada's citizens. See Nev. Const. art. XIX, § 2. More specifically:

"An initiative petition shall be in the form required by section 3 of this article and shall be proposed by a number of registered voters equal to 10 percent or more of the number of voters who voted at the last preceding general election in not less than 75 percent of the counties in the state, but the total number of registered voters signing the initiative petition shall be equal to 10 percent or more of the voters who voted in the entire state at the last preceding general election."

Id. § 2(2). As mentioned, Fair Maps seeks to propose a constitutional amendment through a ballot initiative. (ECF No. 1.) That means that Fair Maps must collect 97,598 signatures to get its proposed initiative on the November 2020 ballot. (ECF No. 2 at 4.)

Proponents of a petition that garners the required minimum number of signatures must send a copy of their petition to the Secretary "not less than 90 days before any regular general election at which the question of approval or disapproval of such amendment may be voted upon by the voters of the entire state[ ]"—i.e. , to get the petition on the ballot in the fall. Nev. Const. art. XIX, § 2(4). The proponents must also stop circulating the petition at that time, or earlier if required by statute. See id.

The Nevada Legislature has enacted such a statute, which requires proponents of an initiative proposing a constitutional amendment submit documents to all of Nevada's county clerks by the fifteenth day after the primary election before they may be submitted to the Secretary (the "Deadline"). See NRS § 295.056(3). Proponents must specifically submit to each county clerk, on the same day, the "document or documents which were circulated for signature within the clerk's county." NRS § 295.056(1), (5). The petition may consist of more than one document. See NRS § 295.0575. These documents are intended to allow each county clerk to verify that the proponents of the petition collected a sufficient number of signatures in their county, and that they actually collected the number of signatures they claimed to acquired. See NRS § 295.056(3). This year, the Deadline is June 24, 2020. (ECF No. 2 at 4.)

As particularly pertinent here, each petition document submitted to each county clerk for verification must include "an affidavit executed by the circulator thereof," stating, in pertinent part: "(1) "[t]hat the circulator personally circulated the document [...; and] (5) "[t]hat all the signatures were affixed in the circulator's presence."⁴ NRS § 295.0575(1), (5).

Once the county clerks have received the required documents from the initiative petition's proponents, they have four business days to transmit the total number of signatures gathered to the Secretary, and then another nine business days to verify the signatures collected—and another twelve business days to count signatures if it appears the total number of signatures collected is between 90% and 100% of the total amount required. See NRS § 295.056(3) ; NRS § 293.1276(1) (providing the deadline for provision of count to Secretary); NRS § 293.1277(1) (providing deadline for verification); NRS § 293.1279(3) (providing deadline for conducting further count verification). (See also ECF No. 24 at 19-20.)

An initiative petition is deemed filed "as of the date on which the Secretary of State receives certificates from the county clerks showing the petition to be signed by the requisite number of voters of the State." NRS § 293.1279(6). Assuming proponents of the initiative petition have gathered enough signatures, the Secretary must then have the full text of the proposed constitutional amendment, along with any explanatory text that will appear on the ballot, published in newspapers of general circulation in each county in advance of the general election, at least three times. See Nev. Const. art. XIX, § 2(4). A majority of Nevada's voters must then vote in favor of the proposed constitutional amendment in two successive general elections—and the Secretary must ensure the text of the amendment is exactly the same in both elections for it to become part of Nevada's constitution. See id. After the second successful vote, the proposed constitutional amendment "shall, unless precluded by subsection 5 or 6, become a part of this constitution upon completion of the canvass of votes by the supreme court." Id.

B. The Stay-at-Home Orders

Nevada Governor Steve Sisolak took escalating and then de-escalating action in response to the spread of COVID-19 in Nevada. On March 12, 2020, he declared a state of emergency. (ECF No. 1-12.) On March 20, 2020, he ordered the closure of all non-essential businesses in the state. (ECF No. 1-13 at 2-3.) On March 30, 2020, he issued the "Stay at Home Order," ordering all citizens to stay in their homes until he lifted the order, and forbidding group gatherings outside the home. (See generally id. ) On May 7, 2020, though effective May 9, 2020, Governor Steve Sisolak lifted the Stay at Home order, though he strongly encouraged Nevada citizens to stay at home, limited gatherings to ten people or less, and imposed public health restrictions. See Nevada Governor Steve Sisolak, Declaration of Emergency Directive 018 , at § 7 (last visited May 28, 2020).⁵ Thus, Nevadans were required to stay at home from March 30 through May 9, or approximately six weeks. Moreover, none of the orders include a carve-out for activities protected by the First Amendment, such as collecting signatures to support a ballot initiative. (See, e.g. , ECF No. 1-13 at 3-4.)

C. Plaintiffs' Proposed Ballot Initiative

Fair Maps filed Initiative Petition C-02-2019 on November 4, 2019. (ECF No. 2 at 3.) "If enacted, the Initiative will amend the Nevada State Constitution to provide for an independent redistricting commission to map electoral districts for the Nevada Senate, Assembly and U.S. House of Representatives." (Id. ) Intervenor-Defendants⁶ brought a lawsuit challenging the legal sufficiency of the description of the initiative's effect in late November 2019. (Id. ) Fair Maps changed the description in response to that lawsuit, and filed Amended Initiative Petition C-02-2019 (the "Initiative") ...