9 TH Circuit Docket No , USDC Case No. 3:12-cv RCJ-WGC Nevada (Reno)

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1 Case: /03/2012 ID: DktEntry: 33-1 Page: 1 of 6 (1 of 86) 9 TH Circuit Docket No , USDC Case No. 3:12-cv RCJ-WGC Nevada (Reno) IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WENDY TOWNLEY, et al., Plaintiff-Appellee, v. ROSS MILLER, Secretary of State of Nevada, Defendant-Appellant, and KINGSLEY EDWARDS, Intervenor-Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) On Appeal From the United States District Court For the District of Nevada DEFENDANT-APPELLANT S MOTION TO EXCEED PAGE LIMIT CATHERINE CORTEZ MASTO Attorney General KEVIN BENSON Senior Deputy Attorney General Nevada State Bar No North Carson Street Carson City, Nevada (775) kbenson@ag.nv.gov Attorneys for Defendant-Appellant

2 Case: /03/2012 ID: DktEntry: 33-1 Page: 2 of 6 (2 of 86) DEFENDANT-APPELLANT S MOTION TO EXCEED PAGE LIMIT Defendant-Appellant Nevada Secretary of State Ross Miller, by and through counsel, Catherine Cortez Masto, Attorney General, and Kevin Benson, Senior Deputy Attorney General, moves pursuant to Circuit Rule 32-2 for permission to exceed the page limit or type volume limit for his Reply Brief. MEMORANDUM OF POINTS AND AUTHORITIES FRAP Rule 32(a)(7)(A) provides that a reply brief should not exceed 15 pages, unless it complies with Rules 32(a)(7)(B) and (C). Rule 32(a)(7)(B) provides that a reply brief must not exceed half the type volume specified for an opening brief in Rule 32(a)(7)(B)(i). In this case, the Secretary s Reply Brief exceeds 15 pages, and contains 16,583 words. Undersigned counsel has diligently attempted to be concise, and has removed a good deal of material from the initial draft of the reply brief. However, the Answering Brief is 78 pages long and contains 18,577 words. The Plaintiffs below, Appellees here, asserted several causes of action: due process, equal protection, violation of the Elections Clauses of the U.S. Constitution, violation of the Voting Rights Act, and violation of the Help America Vote Act. The district court found that Nevada s option for None of these candidates violates all of these constitutional or statutory provisions. Therefore it is necessary to address each of them, while also addressing the remaining factors for issuing a 1

3 Case: /03/2012 ID: DktEntry: 33-1 Page: 3 of 6 (3 of 86) preliminary injunction. While counsel has attempted to make the brief as concise as possible, it would not be possible to treat all of these claims with any substance and to meaningfully respond to Appellees arguments within the 15 page limit. Additionally, many of Appellees claims and arguments raise novel and important questions of federal statutory and constitutional law. For example, they claim that the Elections Clauses of the U.S. Constitution categorically prohibit States from putting any option on a ballot other than the names of candidates. They also assert that substantive Due Process and Equal Protection require that the option None of these candidates must be treated exactly like a vote for a named candidate, even though it is not a vote for a candidate. Their statutory claims involve questions that are apparently issues of first impression in this Circuit, including: whether there is a private cause of action under the Help America Vote Act s provisions directing States to enact uniform and nondiscriminatory laws defining what is a vote, and whether the Voting Rights Act provides for a remedy in federal court, even where there is no allegation of racial discrimination. //// //// //// //// //// 2

4 Case: /03/2012 ID: DktEntry: 33-1 Page: 4 of 6 (4 of 86) CONCLUSION Therefore to fully apprise the Court of the issues and claims, the Secretary respectfully requests permission to exceed the page limit or type volume limit set forth in FRAP Rule 32(a)(7)(B). Respectfully Submitted this 3 rd day of December, CATHERINE CORTEZ MASTO Attorney General By: /s/ Kevin Benson KEVIN BENSON Senior Deputy Attorney General 100 North Carson Street Carson City, Nevada (774) Attorney for Defendant-Appellant, ROSS MILLER, Nevada Secretary of State 3

5 Case: /03/2012 ID: DktEntry: 33-1 Page: 5 of 6 (5 of 86) CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on December 3, Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-cm/ecf participants: Michael T. Morley 616 E Street, N.W. #254 Washington DC /s/ Linda Deming An employee of the State of Nevada Office of the Attorney General 4

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7 Case: /03/2012 ID: DktEntry: 33-2 Page: 1 of 80 (7 of 86) 9 TH Circuit Docket No , USDC Case No. 3:12-cv RCJ-WGC Nevada (Reno) IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WENDY TOWNLEY, et al., Plaintiff-Appellee, v. ROSS MILLER, Secretary of State of Nevada, Defendant-Appellant, and KINGSLEY EDWARDS, Intervenor-Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) On Appeal From the United States District Court For the District of Nevada DEFENDANT-APPELLANT S REPLY BRIEF CATHERINE CORTEZ MASTO Attorney General KEVIN BENSON Senior Deputy Attorney General Nevada State Bar No North Carson Street Carson City, Nevada (775) kbenson@ag.nv.gov Attorneys for Defendant-Appellant

8 Case: /03/2012 ID: DktEntry: 33-2 Page: 2 of 80 (8 of 86) TABLE OF CONTENTS I. INTRODUCTION... 1 II. THE OPTION OF NONE OF THESE CANDIDATES DOES NOT IMPLICATE THE FEDERAL RIGHT TO VOTE... 2 A. The mere appearance of choices on a ballot does not mean the federal right to vote is implicated... 3 B. Ninth Circuit jurisprudence on what constitutes a vote also requires a functional approach to determining whether voting rights are implicated... 9 C. Nevada s statutory framework for None of these candidates does not make it a vote D. Nevada s Constitution and case law does not require NOTC be treated the same as a vote for a candidate E. Adopting Townley s reasoning would trigger constitutional scrutiny by federal courts for every aspect of every ballot or voting system F. Conclusion None of these candidates does not implicate the federal right to vote, therefore the order granting a preliminary injunction must be reversed III. EVEN IF NOTC IMPLICATES THE RIGHT TO VOTE, TOWNLEY HAS NO CHANCE OF SUCCESS ON THE MERITS OF ANY OF THE CLAIMS A. Due Process (Count I) There is no per se violation of due process There is no fundamental liberty interest in having None of these candidates win an election i

9 Case: /03/2012 ID: DktEntry: 33-2 Page: 3 of 80 (9 of 86) 3. The presence of NOTC on the ballot does not create an unconstitutional condition B. Equal Protection (Count II) C. Elections Clauses (Count III) None of these candidates does not dictate electoral outcomes States are not prohibited from giving voters a choice of None of these candidates D. The Voting Rights Act (Count IV) E. The Help America Vote Act (Count V) Townley cannot pursue a preemption theory in the absence of a private right of enforcement NRS complies with HAVA IV. THE STATE S INTERESTS OUTWEIGH ANY BURDEN ON THE RIGHT TO VOTE A. Not counting NOTC as a vote does not impose a severe burden on voting rights B. The State has compelling interests in not counting NOTC as a vote C. Having NOTC on the ballot does not impose any severe burden on the right to vote D. The State has at least important interests in having NOTC on the ballot V. THE INJUNCTION IS OVERBROAD IN STRIKING NOTC FROM ALL BALLOTS ii

10 Case: /03/2012 ID: DktEntry: 33-2 Page: 4 of 80 (10 of 86) VI. PLAINTIFFS HAVE NOT MET THE REMAINING FACTORS FOR ISSUANCE OF A PRELIMINARY INJUNCTION VII. CONCLUSION STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE iii

11 Case: /03/2012 ID: DktEntry: 33-2 Page: 5 of 80 (11 of 86) CASES TABLE OF AUTHORITIES Alexander v. Sandoval, 532 U.S. 275, 286 (2001)...47 Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)... 22, 51, 54 Angle v. Miller, 673 F.3d 1122, 1132 (9th Cir. 2012)... 51,52,57 Bennett v. Yoshina, 140 F.3d 1218, 1226 (9 th Cir. 1998) ,25 Binegar v. Eighth Judicial Dist. Ct., 112 Nev. 544, 551, 915 P.2d 889, 894 (1996)...63 Bingham v. Holder, 637 F.3d 1040, 1046 (9th Cir. 2011)... 27, 28 Brunner v. Ohio Republican Party, 555 U.S. 5, 6 (2008)...47 Burdick v. Takushi, 504 U.S. 428, 430 (1992)... 39,40,41 Bush v. Gore, 531 U.S. 98, 109 (2000)... 49,50 Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 677 (9th Cir. 1988)...21 Caruso v. Yamhill County ex rel. County Com'r, 422 F.3d 848, 863 (9 th Cir. 2005)... 25,26,37,38 Clements v. Fashing, 457 U.S. 957, 965 (1982)...56 i

12 Case: /03/2012 ID: DktEntry: 33-2 Page: 6 of 80 (12 of 86) Connecticut General Life Ins. Co. v. New Images of Beverly Hills, 321 F.3d 878, 882 (9 th Cir. 2003)...59 Cook v. Gralike, 531 U.S. 510, (2001)... 33,35 Dolan v. City of Tigard, 512 U.S. 374, (1994)... 27,29 Dudum v. Arntz, 640 F.3d 1098, 1106 (9th Cir. 2011)... 22, 51,52 Gonzaga v. Doe, 536 U.S. 273, 283 (2002)...47 Gonzalez v. Arizona, 677 F.3d 383, 390 (9th Cir. 2012)... 45,46 Gore v. Harris, 772 So.2d 1243, 1267 (Fla. 2000)...49 Greater Las Vegas Chamber of Commerce v. Del Papa, 106 Nev. 910, 917, 802 P.2d 1280, 1282 (1990) Green v. City of Tucson, 340 F.3d 891, (9th Cir. 2003)... 9,10,13 Herbst Gaming, Inc. v. Heller, 122 Nev. 877, 888, 141 P.3d 1224, 1231 (2006)...38 Hussey v. City of Portland, 64 F.3d 1260, (9th Cir. 1995)...9,10 Ingersoll v. Lamb, 333 P.2d 982 (Nev. 1959)... 14,15,16,17 Lamb Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991)...21 ii

13 Case: /03/2012 ID: DktEntry: 33-2 Page: 7 of 80 (13 of 86) LaRouche v. Fowler, 152 F.3d 974, (D.C.Cir.1998)...22 Libertarian Party of North Dakota v. Jaeger, 659 F.3d 687, 697 (8th Cir. 2011)...56 Libertarian Party of Washington v. Munro, 31 F.3d 759, 761 (9th Cir. 1994)... 52,55 Nat'l Audubon Soc'y, Inc. v. Davis, 307 F.3d 835, 858 (9th Cir.2002)...26 Palko v. Connecticut, 302 U.S. 319, 325 (1937)...24 Perry v. Sindermann, 408 U.S. 593, 597 (1972)...27 Powell v. Power, 436 F.2d 84, 86 (2 nd Cir. 1970)... 42,43,44 Public Citizen, Inc. v. Miller, 992 F.2d 1548 (11th Cir. 1993)...61 State of N.M. ex rel. League of Woman Voters v. Herrera, 203 P.3d 94, 99 (N.M. 2009)... 49,50 State of S.C. v. Katzenbach, 383 U.S. 301, 308 (1966)...43 State ex rel. Wolff v. Geurkind, 109 P.2d 1094, 1099 (Mont. 1941)...15 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009)...21 Taylor v. Onorato, 428 F.Supp.2d 384, (W.D.Pa. 2006)...48 iii

14 Case: /03/2012 ID: DktEntry: 33-2 Page: 8 of 80 (14 of 86) Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005)... 29,34,35 Timmons v. Twin Cities Area New Party, 520 U.S. 351, 363 (1997)... 38,39,40,41 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, (1995)...34 U.S. v. Classic, 313 U.S. 299 (1941)...4,19 United States v. Geophysical Corp. of Alaska, 732 F.2d 693, 700 (9th Cir.1984)...27 Washington v. Glucksberg, 521 U.S. 702, (1997)... 23,24 Willing v. Lake Orion Community Schools Bd. of Trustees, 924 F.Supp. 815, 820 (E.D. Mich. 1996)...44 Wright v. Incline Village General Improvement Dist., 665 F.3d 1128, 1140 (9th Cir. 2011)...29 Zepeda v. U.S. I.N.S., 753 F.2d 719, 728, n.1 (9th Cir. 1984)...64 STATUTES 133 A.L.R Stat. Nev Stat. Nev NAC 293B NRS 293B NRS iv

15 Case: /03/2012 ID: DktEntry: 33-2 Page: 9 of 80 (15 of 86) NRS (2)(a)...58 NRS NRS NRS , 62 CONSTITUTIONAL PROVISIONS U.S. Constitution, art. 1, 4, cl U.S. Const., art.i, 4, cl. 1; art. II, 1, cl U.S. Const. art. II, 1, cl ,34 Nev. Const. Art. 5, , 16, 17 v

16 Case: /03/2012 ID: DktEntry: 33-2 Page: 10 of 80 (16 of 86) The Defendant-Appellant, Ross Miller, Nevada Secretary of State, by and through his counsel, Catherine Cortez Masto, Attorney General, and Kevin Benson, Senior Deputy Attorney General, hereby submits his Reply Brief. I. INTRODUCTION The Secretary has argued throughout this litigation that choosing None of these candidates is not a vote. That is intended as a short hand way of saying that having None of these candidates on the ballot does not limit, impair, or deny the right to vote in federal elections in any way, because it does not prevent anyone from casting a ballot for any candidate for federal office, and having that vote counted and given effect. If the federal right to vote is not implicated by Nevada s None of these candidates option, then all of Appellees Townley et al. s claims fail as a matter of law. Therefore the first portion of this brief will discuss why None of these candidates does not implicate the federal right to vote. The remainder of the brief will address each of Townley s claims in turn and show why the district court erred in granting a preliminary injunction on every claim, even assuming for the sake of argument that None of these candidates does implicate the federal right to vote. 1

17 Case: /03/2012 ID: DktEntry: 33-2 Page: 11 of 80 (17 of 86) II. THE OPTION OF NONE OF THESE CANDIDATES DOES NOT IMPLICATE THE FEDERAL RIGHT TO VOTE The threshold question in this case is whether having an option to choose None of these candidates ( NOTC ) on the ballot even implicates the federal right to vote. It does not. Voters are never obligated to give their vote to any candidate. They are always free to decide whether to vote for a candidate, or not. Of course, if a voter chooses not to vote for a candidate, that choice is not counted in determining who won the election. But no one fathoms that the voter has been unconstitutionally disenfranchised as a result. 1 Rather, the refusal to vote for any candidate is the legitimate choice of the voter. Thus, having NOTC on the ballot simply makes explicit the ability that every voter in the United States already possesses: to refuse to give his or her vote to any of the candidates in a particular race. Consequently, the right to vote in federal elections is not expanded, diminished, impaired, or denied in any way by having NOTC on the ballot. Plaintiffs/Appellees Townley et al. ( Townley ) insist that choosing NOTC is a vote, simply because NOTC appears on the ballot, and can be picked just as a candidate is picked. But these arguments largely miss the bigger conceptual issue: 1 Indeed, NOTC has been an option since 1976, and this is the first challenge that undersigned counsel is aware of to the constitutionality of that option, even though NOTC has received a plurality or more in past elections. 2

18 Case: /03/2012 ID: DktEntry: 33-2 Page: 12 of 80 (18 of 86) None of these candidates is different from all other options because, by definition, it is a negation of all other options. It is not a candidate, nor is it analogous to a candidate. It is the opposite of voting for any candidate. No level of superficial similarity to voting for a candidate changes that fundamental character. Instead, it is logically and legally equivalent to undervoting that is, skipping a race and therefore withholding one s vote from all of the candidates something that all voters have a right to do, but which is never counted in determining who wins the election. Accordingly, this Court should reject Townley s attempts to characterize this case as one involving voter disenfranchisement. This is not a case where the State is refusing to count votes for a certain candidate or party that would obviously be a different case. Instead, this is a case where the State has attempted to empower voters by giving them a way to exercise their existing right to withhold their vote in a way that is meaningful and unambiguous. A. The mere appearance of choices on a ballot does not mean the federal right to vote is implicated. U.S. v. Classic, 313 U.S. 299 (1941) is instructive for both its reasoning and its holding. This case shows that, contrary to Townley s argument, the simple fact that ballots are cast does not automatically mean every aspect of those ballots necessarily implicate a right to vote arising out of the U.S. Constitution or federal statute. 3

19 Case: /03/2012 ID: DktEntry: 33-2 Page: 13 of 80 (19 of 86) In Classic, certain elections officials in Louisiana were indicted for intentionally changing ballots and falsifying election results in a partisan primary election for the office of U.S. Representative. Id. at The statutes for which they were indicted made it a crime to deprive a person, or conspire to deprive a person, of any right or privilege secured to him by the Constitution or laws of the United States. Id. at 309. The defendants challenged the sufficiency of the indictment on the grounds that voting in a closed partisan primary election does not implicate any rights secured by the Constitution or laws of the United States. Id. The Court recognized that the states are given, and in fact exercise a wide discretion in the formulation of a system for the choice by the people of representatives in Congress. Id. at 311. It therefore looked at the particular statutes for primary elections set up by Louisiana law in order to ascertain the nature of the right under the constitutional mandate they define and confer on the voter all with the view of determining, first, whether the right or privilege is one secured by the Constitution of the United States Id. at In other words, the Court looked specifically to state statute to determine what it did, and what its effects were, to determine if the federal right to vote was even implicated. It did not, contrary to what Townley urges this Court to do, 4

20 Case: /03/2012 ID: DktEntry: 33-2 Page: 14 of 80 (20 of 86) simply conclude that because some ballots had been cast, ipso facto, federal constitutional voting rights are at stake. The Court had no trouble finding a constitutional right to vote for Representative in Article I, Section 2 of the Constitution. Id. at 314. However, the closed partisan primary election at issue was not an election for purposes of choosing a Representative; rather, it was an election for the purpose of picking the Democratic Party nominee. Id. at 315. Ultimately, the Court concluded that Louisiana s primary election system did implicate a right or privilege secured by the Constitution of the United States. Id. at 319. It based this conclusion on several factors, including that Louisiana s primary election was, both legally and practically, an integral part of choosing a Representative. Id. Particularly, it found that Louisiana law eliminates or seriously restricts the candidacy at the general election of all those who are defeated at the primary. Id. at 311. The law also prohibited the secretary of state from putting on the general election ballot any partisan candidate who had not been nominated in the primary. Id. at 312. It noted that a Louisiana appellate court had held that write-in ballots for a candidate who lost in the primary cannot be counted for him in the general election and he cannot be elected as a write-in candidate. Id. at 313. Finally, the Court found that the practical reality in the Second Congressional District of 5

21 Case: /03/2012 ID: DktEntry: 33-2 Page: 15 of 80 (21 of 86) Louisiana at the time was that the winner of the Democratic primary election invariably became the Representative for that district. Id. at Thus the Court concluded that, under such circumstances, the federal right to vote for Representative in Congress extended to the partisan primary election. Id. at Otherwise, the state could effectively deny the right to vote for Representative by restricting or denying the ability to vote in the primary election. Id. at 319. Townley asserts that: The Classic Court held that, when a State chooses to make primary elections an integral part of [its] election machinery, ballots cast in those primaries must be counted as votes and receive full constitutional protection, even though a primary does not and cannot result in the election of a public official. Answering Brief, p. 19. They argue that, by extension, constitutional law requires that all options on the ballot must be counted, even if those ballots cannot directly result in the election of a public official. See id. This reading vastly overstates the holding and the facts of the Classic case by reading one statement out of context, specifically the Court s statement: And this right of participation is protected just as is the right to vote at the election, where the primary is by law made an integral part of the election machinery, whether the voter exercises his right in a party primary which invariably, 6

22 Case: /03/2012 ID: DktEntry: 33-2 Page: 16 of 80 (22 of 86) sometimes or never determines the ultimate choice of the representative. See Answering Brief, p. 19, Classic, 313 U.S. at 318 (emphasis added). As discussed above, the Court found that in the political climate of Louisiana s Second Congressional District at the time, whoever won the Democratic primary invariably also won the general election. Id. at In context, it is clear that the Court made that statement to ensure that its holding extended to all partisan primary elections in Louisiana, even if the practical political reality is that the outcome of, for example, the Republican primary, never mattered in terms of who is actually elected to office. Id. at Otherwise, the opinion could be read as limited to the specific facts of that case, where the winner of the primary effectively secured election to office. Finally, the whole statement itself is clearly referring to the specific situation where the primary is by law made an integral part of the election machinery. Id. at 318. Similarly, Townley s reliance on the Classic Court s statements that the constitution protects the right to cast a ballot and to have it counted... whether for the successful candidate or not is misplaced. See Answering Brief, p. 20. This case does not involve the refusal to count ballots cast for a candidate. It is difficult to conceptualize how not casting a ballot for a candidate is an integral part of the election machinery in the same way that a primary election is. Choosing NOTC only affects the election in the same sense that undervoting or 7

23 Case: /03/2012 ID: DktEntry: 33-2 Page: 17 of 80 (23 of 86) abstaining affects the election. This is a far cry from the type of integral role played by the primary election in Classic. In short, Townley attempts to elevate form over substance by showing the Court an image of the ballot, and asking it to therefore conclude that the Constitution requires None of these candidates to be treated the same as a vote for a particular candidate. But in substance, None of these candidates is the same as undervoting or abstaining both acts in which a voter withholds his or her vote from all of the candidates but which are never counted as a vote. The Classic case shows that federal courts should carefully examine the machinery of state election law to determine whether it actually implicates federal constitutional rights. Contrary to Townley s arguments, the mere fact that NOTC appears on a ballot does not necessarily mean any federal or constitutional rights are at stake. This is consistent with other case law recognizing that a federal constitutional right is not implicated every time a ballot is cast. See e.g., Bennett v. Yoshina, 140 F.3d 1218, 1226 (9 th Cir. 1998) ( In general, garden variety election irregularities do not violate the Due Process Clause, even if they control the outcome of the vote or election. ). //// //// //// 8

24 Case: /03/2012 ID: DktEntry: 33-2 Page: 18 of 80 (24 of 86) B. Ninth Circuit jurisprudence on what constitutes a vote also requires a functional approach to determining whether voting rights are implicated. Like the Supreme Court in Classic, this Circuit s decisions in Green v. City of Tucson, 340 F.3d 891, (9th Cir. 2003) and Hussey v. City of Portland, 64 F.3d 1260, (9th Cir. 1995) take a practical, functional approach to what actions constitute a vote that implicate federal constitutional protections. Each of these cases looked at certain factors in deciding that the actions in question (either written consents to annexation, or signatures on a municipal incorporation petition) constituted votes entitled to equal protection: Both [votes and written consents] must be returned by registered voters; both are official expressions of an elector's will; both are required to resolve political issues; and both require a majority for success. Green, 340 F.3d at 897 (quoting Hussey, 64 F.3d at 1263). Townley argues that Green and Hussey did not establish a strict three-part test to be inflexibly applied to all future cases. See Answering Brief, p. 22. It is true these cases did not explicitly state that these factors must always be considered and dictate that they are to be inflexibly applied to every future case. Nevertheless, these cases do establish relevant factors to consider. The Secretary agrees with Townley that: In determining whether something must be treated as [a] vote for federal constitutional or statutory purposes, the 9

25 Case: /03/2012 ID: DktEntry: 33-2 Page: 19 of 80 (25 of 86) court must consider whether it is analytically like, Hussey, 64 F.3d at 1265, or sufficiently similar to, Green, 340 F.3d at 897, a vote. See Answering Brief, p. 17. The main error in this case is that the district court did not engage in any such analysis. Instead, the district court ruled that None of these candidates must be treated as a vote simply because it appears on the ballot. Its error was in failing to undertake the functional analysis used in Classic, Hussey, and Green. The specific factors in Hussey and Green are part of that functional analysis. Of course, they may not be the sole factors that are relevant in every case. In this case, None of these candidates does not constitute a vote under these factors chiefly because it does not resolve the political issue of who is to represent the people. Townley argues that it does answer this question, by stating that none of the candidates should represent the people. However, that argument incorrectly assumes that the political issue is who should represent the people. The political issue is actually who will represent the people. While we all certainly have ideas and opinions about who should or should not represent us in office, the main purpose of holding an election is to actually select a person who will represent the people. An election that does not select a person to represent the people has failed its most basic purpose. None of these candidates does not determine who will 10

26 Case: /03/2012 ID: DktEntry: 33-2 Page: 20 of 80 (26 of 86) represent the people, and therefore does not resolve the critical political issue that is the very reason for having an election. Instead, NOTC operates in an election the same as an undervote. Yet the Constitution does not require that undervotes be tallied and counted in determining who wins (or if anyone won) the election. For the same reason, there is no threshold at which NOTC becomes effective. This is true even if NOTC is counted and allowed to win, because even in that case, it does not resolve the political issue of who will represent the people. The fact that the Legislature explicitly stated that NOTC is not to be counted in determining who wins is merely a reflection of the fundamental nature of choosing None of these candidates and the Legislature s correct understanding that it is not the same as voting for a candidate. 2 The Secretary agrees with Townley that a legislative declaration that it is not to be counted is not the definitive factor in whether it is a vote entitled to 2 Townley s attempt to analogize this case to a hypothetical one where the Secretary is running for re-election and announces that he simply will not count any votes for his opponent, is especially far off the mark, since clearly that is a different case where only votes for named candidates are at issue. See Answering Brief, p In this same vein, Townley repeatedly asserts that the Secretary is refusing to count votes, as though it was the Secretary s personal decision not to count NOTC as a vote. In fact, that rule was enacted by the Legislature and signed into law by the Governor more than 35 years ago, long before the Secretary took office. It was a decision of the citizens of Nevada, acting through their elected representatives. So this case does not arise out of the whims of any single public official, contrary to how Townley attempts to present it. Thus the Court should not be misled by such mischaracterizations. 11

27 Case: /03/2012 ID: DktEntry: 33-2 Page: 21 of 80 (27 of 86) constitutional protection. But Townley s argument that the Secretary s reasoning is tautological misses (or perhaps intentionally attempts to re-characterize) the Secretary s argument as well as the bigger picture: the purpose of having an election is not simply to state who should be elected to office it is to actually elect someone to office. An action that cannot, by its very nature, achieve that purpose is not entitled to the same constitutional protection as a vote that can achieve that purpose. Accordingly, choosing None of these candidates is not analytically like, nor sufficiently similar to voting for a candidate. C. Nevada s statutory framework for None of these candidates does not make it a vote. Townley argues that NOTC must be treated as a vote for a federal candidate because certain statutes and administrative regulations refer to it as a vote. See Answering Brief, pp They cite NRS 293B.075 and NAC 293B.090, which refer to being able to vote for None of these candidates on a voting machine. NRS 293B.075 was added to the statutes by a different bill than the bill which created the substantive statute, NRS , to require NOTC to appear on the ballot. See 1975 Stat. Nev (A.B. 581, voters must be able to indicate a nonconfidence vote ); see also 1985 Stat. Nev (changing indicate a nonconfidence vote to indicate a vote against all candidates ). Likewise, the regulation in NAC Chapter 293B requires logic and accuracy testing of voting machines and vote counting devices including testing to ensure that the machines 12

28 Case: /03/2012 ID: DktEntry: 33-2 Page: 22 of 80 (28 of 86) read and record a vote for NOTC. Thus, both of these provisions are aimed at ensuring the option of NOTC is available on voting machines, just as it is on paper ballots. When these provisions are contrasted with the substantive statute NRS it is clear that, in the law that actually provides for NOTC, the Legislature never considered it to be a vote in the same sense as a vote for a candidate. The Legislature went out of its way to avoid even calling it a vote in NRS The fact that other bills and subsequent regulations dealing only with how voting machines are to be set up refer to NOTC as a vote cannot change the Legislature s original intent and purpose behind the substantive statute. Therefore Townley s reliance on those provisions is misplaced. In any event, as discussed above, the Classic, Green, and Hussey cases all instruct that whether it is called a vote or not is not dispositive. Clearly, in Classic, there was an election where voters cast ballots with their votes upon them. But none of those terms are magic words that automatically invoke the protection of the U.S. Constitution. In Classic, the primary election determined who appeared on the general election ballot, and effectively barred any partisan candidate from becoming a congressman if he or she did not win the primary. Therefore it was an integral and necessary step to being elected to federal office. Unlike the primary election in 13

29 Case: /03/2012 ID: DktEntry: 33-2 Page: 23 of 80 (29 of 86) Classic, the option of None of these candidates does not restrict, change, or determine the choices of candidates that can appear on the general election ballot or be elected to office. Nor does it affect the ability of voters to vote for a candidate of their choice and to have those votes counted. Applying Classic to Nevada s statutes, it is clear that NOTC does not impair any federal constitutional rights. Having None of these candidates as one option on the ballot, but not counting it as a vote, does not disenfranchise any voters. Whether NOTC is on the ballot or not, voters can always withhold their vote from the candidates by either undervoting or abstention. Undervotes and abstentions are never counted as votes in determining which candidate wins an election. Thus having an explicit option on the ballot that merely reflects the status quo cannot change a clearly constitutional system into an unconstitutional one. D. Nevada s Constitution and case law does not require NOTC to be treated the same as a vote for a candidate. Townley relies heavily on the Nevada Supreme Court case Ingersoll v. Lamb, 333 P.2d 982 (Nev. 1959) to argue that NOTC must be treated exactly the same as a vote for a candidate. That case involved an election where one candidate died shortly before election day, yet received the highest number of votes. Lamb, 33 P.2d at 983. The candidate with the next-highest number of votes argued that he should be declared elected because the deceased candidate was no longer a person under Nev. Const. Art. 5, 4, which states in relevant part: The persons 14

30 Case: /03/2012 ID: DktEntry: 33-2 Page: 24 of 80 (30 of 86) having the highest number of votes for the respective offices shall be declared elected Id. (emphasis added). However, the Nevada Supreme Court did not directly address this argument. Rather than determining the case based on whether a deceased candidate was or was not a person for purposes of Nev. Const. Art. 5, 4, it focused instead on whether the votes for the deceased candidate should be counted for him. Id. It reframed the question as: Though the votes cast for Smith were ineffective to elect him to office, must they be treated as void, thrown away, not to be counted in determining the result with regard to petitioner, the opposing candidate? Id. The court noted that various other courts had held that knowingly casting one s vote for a dead man was equivalent to throwing it away, that a voter at the polls, unless he votes for some person, is not voting at all, and that such a ballot is a nullity, cannot be counted and cannot be given any effect in determining the result of the election. Id. (quoting State ex rel. Wolff v. Geurkind, 109 P.2d 1094, 1099 (Mont. 1941)). The Nevada Supreme Court declined to follow these courts, and instead followed the opposite trend: that such votes are valid because it would otherwise have to give them to the next candidate, who never would have received them. Id. at

31 Case: /03/2012 ID: DktEntry: 33-2 Page: 25 of 80 (31 of 86) However, the Lamb case does not control here. First, it involves votes cast for a candidate. It is not applicable or even analogous to the situation here: where voters make a choice that rejects all candidates. Second, Lamb was decided before NRS was enacted, so it cannot have any bearing on how a choice of NOTC ought to be treated. The case simply does not address the situation here: where voters make a choice that does not favor or disfavor any particular candidate, and where the Legislature unambiguously provided that such choices are not counted as votes. 3 Finally, here it is obvious that NOTC is not a person under Nev. Const. Art. 5, 4. Thus nothing in the Nevada Constitution or the Lamb case can be read as requiring None of these candidates to be treated as a person. The opposite result is readily apparent. Furthermore, there was no discussion, or even the suggestion, in Lamb that not counting the votes would have been a violation of the voters right to vote under the U.S. Constitution. Indeed, as the court noted, other courts had held such votes were void and should not be counted. This was considered the minority rule, yet was followed in Montana, Massachusetts, and New York, among others. See Lamb, 75 Nev. at 4, 333 P.2d at 983 (citing cases); see also 133 A.L.R Under Appellees logic in this case, courts adopting the minority rule, by refusing to count such votes, have committed error of constitutional dimensions, 3 Lamb was decided before the legislature enacted a specific statute to provide for the situation that occurred in that case. See NRS

32 Case: /03/2012 ID: DktEntry: 33-2 Page: 26 of 80 (32 of 86) effectively disenfranchising untold numbers of voters. But none of the authority supports that reasoning. Indeed, the fact that a split in authority on this question existed demonstrates that it does not violate the Constitution if a state chooses not to count those votes. Just because the Nevada Supreme Court came down on the side of counting the votes for a deceased candidate in Lamb by no means makes it binding law that requires a choice of NOTC to be treated as a vote. This is especially so because that would be directly contrary to the plain language of the statute, the statute did not exist at the time Lamb was decided, NOTC is not even arguably a person under Nev. Const. Art. 5, 4, and the statute here involves a situation completely different than the one at issue in Lamb. E. Adopting Townley s reasoning would trigger constitutional scrutiny by federal courts for every aspect of every ballot or voting system. Townley argues that: Where properly registered and duly qualified voters affirmatively exercise their right to vote by validly selecting from among the officially presented alternatives on the ballot, Secretary Miller may not ignore those votes and treat them as legal nullities. Answering Brief, p. 24. Townley essentially asks this Court to rule that, as a matter of federal constitutional law, any time any option appears on any ballot, states are required to count that option in a way that gives it positive legal effect. While that makes sense 17

33 Case: /03/2012 ID: DktEntry: 33-2 Page: 27 of 80 (33 of 86) when talking about votes for a qualified candidate, it does not make any sense when the option at issue is, and was designed to be, the opposite of voting for any particular candidate. Under this theory, it would be patently unconstitutional for states or municipalities to use advisory-only ballot questions. These are ballot questions that have no legally binding effect, but instead are used solely to poll the electorate s feelings on a particular issue. See NRS They appear on the ballot, voters can cast yes or no votes, and the results are tabulated and reported. But the results are not counted in the sense that they do not compel any governmental action, nor do they make law. Under Townley s theory, this would be a categorical violation of voters constitutional rights, because properly registered and duly qualified voters [have] affirmatively exercise[d] their right to vote by validly selecting from among the officially presented alternatives on the ballot, yet those votes are treated as legal nullities. See Answering Brief, p. 24. As Townley acknowledges, states have substantial leeway in how they choose to count (or not count) blank ballots. See Answering Brief, p. 23; Bennett v. Yoshina, 140 F.3d 1218, 1225 (9 th Cir. 1998) ( states have considerable freedom to design their own election laws. ). In other words, according to Townley, there is no constitutional problem if a state chooses not to count a blank ballot or undervote as a vote, but if a state puts an option on the ballot like None of these 18

34 Case: /03/2012 ID: DktEntry: 33-2 Page: 28 of 80 (34 of 86) candidates that functions exactly the same way as an undervote, to continue to treat it as an undervote suddenly violates a host of constitutional and statutory rights. But in substance, nothing has really changed. Thus Townley s theory that just because an option appears on a ballot, constitutional law always requires it to be given some substantive legal affect, sweeps much too broadly. It also shows the problem with the superficial argument that if it s on a ballot, it must ipso facto be a vote entitled to constitutional protection and review by federal courts. Such a rule ignores states broad powers to design their election systems. See Classic, 313 U.S. at 311. It also ignores the fact that NOTC is fundamentally different than voting for a candidate. F. Conclusion None of these candidates does not implicate the federal right to vote, therefore the order granting a preliminary injunction must be reversed. In sum, having None of these candidates appear on the ballot, but not counting it in determining who won the election, does not implicate the federal right to vote because it does prevent anyone from casting a ballot for any federal candidate and having that vote counted and given effect. Instead, None of these candidates functions the same way an undervote does the voter simply withholds her vote from all of the candidates, which is her right. Since None of these candidates functions the same as an undervote, the district court erred in finding that NOTC is a vote simply because it is printed on a 19

35 Case: /03/2012 ID: DktEntry: 33-2 Page: 29 of 80 (35 of 86) ballot, and therefore that Townley had any chance of success on the merits. Accordingly, its decision to enter a preliminary injunction must be reversed. III. EVEN IF NOTC IMPLICATES THE RIGHT TO VOTE, TOWNLEY HAS NO CHANCE OF SUCCESS ON THE MERITS OF ANY OF THE CLAIMS Townley alleged five principal causes of action: (1) violation of due process; (2) violation of equal protection; (3) violations of the Elections Clauses (U.S. Const., art.i, s. 4, cl. 1; art. II, s. 1, cl.2); (4) violation of the Voting Rights Act (42 U.S.C. 1973i); and, (5) violation of the Help America Vote Act ( HAVA ), 42 U.S.C. S EOR Townley also asserts a sixth cause of action under 42 U.S.C for a violation of those constitutional or statutory provisions. EOR Even assuming None of these candidates implicates the right to vote in federal elections, Townley has no chance of success on any of these claims. Townley claims that it is sufficient to show a likelihood of success (or even just a substantial question ) on the merits of only one of their claims in order for this Court to sustain the preliminary injunction. See Answering Brief, p. 25. Townley cites no Ninth Circuit precedent for this proposition. In any event, merely showing a likelihood of success is not enough. A district court abuses its discretion in granting a preliminary injunction if it fails to identify, evaluate and 20

36 Case: /03/2012 ID: DktEntry: 33-2 Page: 30 of 80 (36 of 86) weigh the specific countervailing injuries that the injunction may cause to the defendants and the public interest. Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 677 (9th Cir. 1988). Furthermore, the preliminary injunction must be overturned if it is not narrowly tailored to prevent the specific harm to the plaintiffs. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009) (citing Lamb Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991)). Therefore, even if this Court finds some likelihood of success on one of the claims, it must still weigh the countervailing injuries caused by the injunction and evaluate whether it is overly broad. A. Due Process (Count 1) 1. There is no per se violation of due process. Townley appears to urge this Court to make a bright-line, per se rule that not counting NOTC as a vote violates substantive due process, outside of the usual analysis of applying any kind of constitutional scrutiny, whether strict scrutiny or some other level of scrutiny. The Court should reject this invitation. It is well established that elections regulations are reviewed according to a flexible standard of judicial scrutiny, depending on the extent to which they burden the right to vote. Dudum v. Arntz, 640 F.3d 1098, 1106 (9th Cir. 2011) (citing Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)). This flexible standard is not 21

37 Case: /03/2012 ID: DktEntry: 33-2 Page: 31 of 80 (37 of 86) specific to First Amendment claims. Dudum, 640 F.3d at 1106, n. 15. Instead, whether plaintiffs assert First Amendment, due process, or equal protection claims, courts use a single basic mode of analysis to address them all. Id. (quoting LaRouche v. Fowler, 152 F.3d 974, (D.C.Cir.1998)). For these reasons it would be error to apply any per se rule as Townley suggests. Instead, the correct analysis is to employ the standard in Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). Because this standard applies to all of Townley s constitutional claims, it is addressed separately in Section IV of this brief. 2. There is no fundamental liberty interest in having None of these candidates win an election. Townley s due process claim asserts that NRS is a per se violation of substantive due process because it directs that votes for NOTC are not counted in determining who wins the election. Townley argues that this is not an extension of substantive due process rights. See Answering Brief, p. 28. Instead, they argue that this is simply a case where voting takes on a form that the Framers did not originally contemplate. See Id. First, this argument presumes that choosing NOTC is indeed exactly the same as voting for a candidate, and therefore having it counted in a way it can win the election is already a right protected by substantive due process. That of course is the entire threshold question of this case. Therefore Townley plainly is asking 22

38 Case: /03/2012 ID: DktEntry: 33-2 Page: 32 of 80 (38 of 86) this Court to extend the notion of substantive due process to an entirely new and different situation: one where a person has voted not for a candidate, not to achieve or prevent some defined legal result like annexation, but instead to express disapproval of all candidates. Although not controlling, it is telling that NOTC has appeared on Nevada ballots for over 34 years, has never been permitted to win an election even where it received a plurality, and yet only now is it being challenged as a per se violation of substantive due process. If this were simply a matter identical to voting for a named candidate, surely it would have been challenged and struck down long ago. Instead, this case evokes the wise words in Washington v. Glucksberg, 521 U.S. 702, (1997) where the Court stated that it must exercise the utmost care whenever we are asked to break new ground in this field because, [b]y extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. The consequences of holding that substantive due process requires that an option like NOTC must always be counted and treated like a vote for a candidate would render unconstitutional other commonly used ballot devices like advisory ballot questions. This is just one example where extending substantive due process in this way place[s] the matter outside the arena of public debate and legislative 23

39 Case: /03/2012 ID: DktEntry: 33-2 Page: 33 of 80 (39 of 86) action and thereby effectively deprives voters and their government of the ability to design election laws meeting their needs. As the Glucksberg Court explained, substantive due process should only be applied where the liberty interest in question is both carefully described and so implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. Id. at (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). Treating a choice of None of these candidates like an undervote instead of like a vote for a named candidate does not implicate any such liberty interests that require this Court to extend substantive due process as suggested by Townley. Next, Townley argues that the fundamentally unfair standard for due process violations in elections cases applies only in the context of post-election challenges where the plaintiff is seeking to undo a completed election. See Answering Brief, p. 28. However, that is not correct as this standard has been applied to cases very much like this one: where the plaintiff sought an injunction before the election that would prohibit certain material from appearing on the ballot. In Caruso v. Yamhill County ex rel. County Com'r, 422 F.3d 848, 863 (9 th Cir. 2005), the Ninth Circuit rejected a substantive due process claim challenging Oregon s requirement that the statement may cause property taxes to increase 24