Nev. Green Party v. Cegavske
| Decision Date | 01 September 2016 |
| Docket Number | 2:16-cv-01951-JAD-CWH |
| Parties | Nevada Green Party; Dr. Jill Stein; Julia Hammett, Plaintiffs v. Barbara C. Cegavske, in her official capacity as Secretary of State of Nevada, Defendant |
| Court | U.S. District Court — District of Nevada |
Order Denying Request for Injunctive Relief
Nevada's election laws offer three ways for a minor political party to qualify to place a candidate on the 2016 general-election ballot, including a petition method. Minor parties seeking to qualify for the ballot this year by petition were required to submit 5,431 valid signatures by June 3. In 2014, the petition deadline was April 11, and the Nevada Green Party (NGP) challenged it as unconstitutionally early. The party dismissed that suit last summer after the Nevada legislature extended the deadline to June, stipulating that the amendment had resolved the controversy.
The NGP waited until less than two weeks before the deadline to start collecting signatures to qualify to place candidates on Nevada's 2016 ballot. When the party's June 3 petition came up 647 signatures short after the verification process was completed, the party, its state co-chair Julia Hammett, and the Green Party's presidential candidate Dr. Jill Stein filed this action and moved for a mandatory injunction directing Nevada's Secretary of State to accept and process another 1,000+ signatures. The plaintiffs argue that the Secretary of State has the discretion to accept the supplemental signatures despite the deadline's expiration and, alternatively, that the June 3 deadline unconstitutionally restricts the NGP's access to the ballot and its supporters' associational and free-speech rights. I find that the plaintiffs have not demonstrated that they are entitled to this extraordinary relief, and I deny the motion.
There are three ways for a minor political party to place a presidential candidate on Nevada's general-election ballot: (1) have a candidate in the last election who received votes equal to at least 1% of the votes cast in the state's last congressional race; (2) be the party designated on the voter applications of at least 1% of the state's registered voters by January 1st of the general-election year; or (3) file a Minor Political Party Ballot Access Petition with the Nevada Secretary of State at least ten working days before the third Friday in June preceding the general election that contains the signatures of registered voters in an amount equal to at least 1% of the votes cast in the state's last congressional race.1 For 2016, this means that a minor political party in Nevada seeking to gain ballot access by petition (option 3) had to submit its collected signatures to the respective county clerks and registrar of voters by June 3 and have at least 5,431 of those signatures verified in order to have the opportunity to place its candidates' names on the ballot for the November 8, 2016, general election.2 The statutory scheme places no limit on when a minor party can begin collecting signatures,3 and a qualifying party does not have to identify its candidates for President and Vice President until the last Tuesday in August.4
The signature-submission deadline for minor parties seeking to qualify for Nevada's ballot has not always been in June. The version of the statute in effect in 2014 required the signatures to be submitted by April 11th.5 The NGP6 challenged the deadline as unconstitutionally early, arguing that"[t]he early April deadline and short time period in which to gather signatures limits" its "abilities to qualify for a place on the ballot" in violation of the First and Fourteenth Amendments.7 It sought an injunction directing the Secretary of State to accept signatures through the first Tuesday in July in all future election years.8 The party dismissed that suit in July 2015 after the Nevada legislature extended the deadline to June, and the NGP stipulated that the amendment left "no case or controversy" remaining.9
On March 14, 2016, the NGP pre-filed its petition form, suggesting that it was planning to collect the signatures it needed to qualify to place candidates on Nevada's 2016 general-election ballot.10 But it waited more than two months—until less than two weeks before the June 3 deadline—to start collecting those signatures.11 The NGP attributes this delay to its inability "to organize and obtain volunteers to collect enough verified signatures earlier and/or soon enough."12
On the June 3 deadline, the NGP submitted for verification the 8,554 signatures that it had collected, the vast majority of which were submitted to Clark County. But nearly 45% of thesignatures were rejected during the verification process as duplicative, illegible, not matching the voting-record signature, or not belonging to a registered voter, leaving the NGP 647 signatures short.13 On June 22, 2016, the Secretary of State notified the party of this deficiency.14
The NGP timely contested Clark County's verification results to the Secretary of State under NRS 293.12793, arguing that its shortfall is attributable to errors and inconsistencies during that verification process.15 While that appeal was pending, on August 1, 2016, the NGP attempted to submit an additional 1,000 signatures for verification but the state refused them as untimely.16 The Green Party held its national convention five days later and selected plaintiff Dr. Jill Stein as its presidential candidate.17 On August 12, 2016, the Secretary of State denied the NGP's appeal after concluding that the petition "was properly verified by the Clark County Registrar of Voters in accordance with all applicable laws, regulations, and procedures."18
Four days later, plaintiffs filed this action and an application for a temporary restraining order and an order to show cause why a preliminary injunction should not issue.19 They ask me to prevent the Secretary of State from refusing to accept the NGP's supplemental signatures and direct her "to take all action necessary to accept" those signatures "and to place the names of its presidential and vice-presidential candidates on all election ballots in all counties of the State of Nevada for the November 8, 2016, general election."20 I expedited the briefing schedule,21 held oral argument on themotion on August 29, 2016, and took the matter under submission.22 Having carefully considered all of the arguments and evidence, I now deny the motion.
Injunctive relief "is an extraordinary remedy never awarded as of right."23 To obtain this remedy, plaintiffs must show (1) that they are likely to succeed on the merits and (2) likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in their favor, and (4) that a preliminary injunction is in the public interest.24 Under the sliding-scale approach to preliminary injunctions in this circuit, "the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another."25 But, "at an irreducible minimum," plaintiffs "must demonstrate a fair chance of success on the merits, or questions serious enough to require litigation."26
Plaintiffs' motion fails at the merits step. Even if the final three factors tip in their favor, I cannot conclude from the record before me that plaintiffs have shown that they have a fair chance of success on the merits or questions serious enough to require litigation.
A. Plaintiffs have not demonstrated a likelihood of success on the merits of their claim.
Plaintiffs' lead argument is that the Secretary of State has discretion to accept the party's supplemental signatures and run them through the verification process despite the passage of the June 3 submission deadline.27 Alternatively, plaintiffs argue that Nevada's statutory deadlinesunconstitutionally burden minor political parties' rights to ballot access and voters' rights to vote for minor party candidates and thus may not be enforced.28 Plaintiffs have not demonstrated that either argument is likely to succeed.
Plaintiffs cite no authority for their lead argument that the Secretary of State has the discretion to ignore the signature verification and petition deadlines that the Nevada legislature set in NRS Chapter 293; when pressed at oral argument, plaintiffs' counsel could identify none. Instead they argue that nothing in these statutes "prevents the Secretary of State from accepting additional signatures" past the June 3 deadline.29 But the plain language of the statutes belies this claim.
Nevada's minor-party ballot-access statutes are teeming with musts. Section 293.1715 provides that the Secretary of State "must" place qualified minor parties' candidates on the ballot. And minor parties "must" timely complete the steps to get qualified: "Not later than the third Friday in June preceding the general election, [the party] must file" a petition with the required signatures;30 and "[e]ach document of the petition must . . . be submitted to the county clerk of that county for verification . . . not later than 10 working days before the last day to file the petition."31 Where—as here—the statutory language is unambiguous, its plain meaning controls,32 and the Nevada SupremeCourt has recognized that "[t]he word 'must' generally imposes a mandatory requirement."33 Courts enforcing deadlines in other states' election statutes have also held that filing deadlines are mandatory, and election officials lack the discretion to excuse their violations.34 Plaintiffs have not shown that Nevada's minor-party election rules merit a different interpretation.
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