Case: 12-16882 10/24/2012 ID: 8375643 DktEntry: 23 Page: 1 of 8 UNITED STATES COURT OF APPEALS FOR TI{E NINTH CIRCUIT \ryendy TOWNLEY, et al., V Plaintiffs - Appellees, ROSS MILLER, Secretary of State of Nevada, in his official capacity, Ninth Circuit No. 12-1688 1 D.C. No. 3 : 12-CV-003 I O-RCJ-WGC District of Nevada Reno And KINGSLEY EDWARDS, Defbndant - Appellant, Intervenor - Defendant - Appellant. MOTION F'OR JOINDER OF PLAINTIFF'S.APPELLEES AND PUTATIVE PLAINTIF'F.APPELLEE REPUBLICAN PARTY OF NEVADA Plaintiffs-Appellees, as well as the Republican Party of Nevada ("Party"), respectfully move this Court to join the Party as a PlaintifÊAppellee in this appeal of the district court's preliminary injunction barring Defendant Secretary of State Ross Miller from including "None of These Candidates" as an option in future statewide elections in Nevada. Plaintiffs-Appellees concurrently have filed a motion in the district court seeking leave to file a Second Amended Complaint, to add the Party as a Plaintiff in the underlying suit. The Party wishes to ensure that this Court may adjudicate the serious questions concerning the legality and constitutionality of Nevada's "None of These 1
Case: 12-16882 10/24/2012 ID: 8375643 DktEntry: 23 Page: 2 of 8 Candidates" ballot option presented in the Amended Complaint, despite any potential argument-however meritless-that the passage of the November 6,2012 general election will moot this case, or that Plaintiffs lack standing to maintain their challenges to the statute once that election is over.t Plaintifß sought a preliminary injunction barring Defendant Miller from including "None of These Candidates" as an option on any ballots "in any future elections, including but not limited to the November 6, 2072 general election." Plaintifß' Proposed Order Granting Motion for Prelimitraty Injunction, Dist. Ct. Dock. #75, at 3 (June 28, 2012) (emphasis added). The minutes of the district court's August 22,2012 hearing, which this Court has chosen to treat as its written order, see Amended Order, DE #15, at 2-3 (Sept. 5, 2012), state broadly that Secretary Miller is "enjoined from allowing 'None of these candidates' to appear on voting ballots." Minutes of Proceedings, Dist. Ct. Dock. #39 (Aug. 22,20t2). Because the Party has a strong interest in ensuring that "None of These Candidates" does not appear as a ballot option in any future elections, even if this Court allows it to remain on the ballot for the November 2012 election, this Court should grant this motion for joinder. The Partv Satisfïes the Reouirements for Joinins a Case on Apneal Federal Rule of Civil Procedure 2I provides, in relevant part, fhat "parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." Fed. R. Civ. P. 2I. "Although Rule 2I is not directly applicable to the courts of appeals, courts 1 To the extent the passage of the November 2012 election will change the focus of this appeal to the preliminary injunction's applicability to future statewide elections, Intervenor Kingsley's laches argument evaporates. Furthermore, concerns about last-minute changes to ballot layouts, or the need to avoid discrepancies between the ballot as it appears on voting machines and absentee ballots that akeady have been distributed, become irrelevant as well. 2
Case: 12-16882 10/24/2012 ID: 8375643 DktEntry: 23 Page: 3 of 8 have consistently recognized that appellate courts can join parties pursuant to Rule 21 when a case is pending on appeal." Cal. Credit Union League v. City of Anaheim, 190 F.3d 997, 999 (9th Cir. 1999); see also Mullaney v. Anderson, 342 U.S. 415, 417 (1952) (allowing new plaintiffs to join in a pending appeal under Rule 21). Under Rule 27, "a party may join a lawsuit on appeal... when the party seeking joinderf:] [1] requests the same remedy as the original party andl2l offers the same reasons for that remedy and [3] earlier joinder would not have affected the course of the litigation." Cal. Credit Union, 190 F.3d at 999; Rogers v. Paul, 382 U.S. 198,199 (1965) (per curiam) (granting motion to add new plaintiffs while case was pending in Supreme Court where these factors were satisfied). Each of these requirements is satisfied here. tirst, the Party seeks the same relief as the existing Plaintiffs-Appellees: affirmance of the district court's preliminary injunction ffid, ultimately, invalidation of Nevada's "None of These Candidates" statute, 7975 Nev. Stat. 475, codified ø/ Nev. Rev. Stat. S 293.269, 2938.075. Second, the Party seeks to present the same causes of action and arguments as the existing Plaintifß- Appellees. Indeed, as mentioned earlier, the Party will be represented by the same counsel and join in the same filings. Third, earlier joinder would not have affected the course of the litigation. In Day v. Apoliona, 505 F.3d 963, 965 (9th Cir. 2007), for example, this Court allowed the State of Hawaii to intervene in an appeal after the panel already had issued its ruling, so that the State could file a petition requesting rehearing en banc. This Court granted the intervention motion despite the State's extreme delay, because "the practical result of its intervention-the filing of a petition for rehearing-would have occurred whenever the state joined the proceedings." Similarly, this case's posture-before both the district court and this Court-would 3
Case: 12-16882 10/24/2012 ID: 8375643 DktEntry: 23 Page: 4 of 8 be exactly the same regardless of whether the Party had been a plaintiff in the first instance. Thus, all three prongs of the Rule 2l standard for allowing aparty to join an appeal have been satisfied. "To dismiss the present fappeal] and require the fparty] to start over in the District Court would entail needless waste and runs counter to effective judicial administration." Mullaney v. Anderson,342 U.S. 415, 417 (res2). Both the Supreme Court and this Court have held that new plaintiffs should be permitted to join cases at the appellate stage to help alleviate potential standing, mootness, or other justiciability-related problems. In Mullqney, 342 U.S. at 416-17, for example, a union and its Secretary-Treasurer had challenged a state's heightened fees for commercial fishing licenses for nonresidents. While the case was pending before the Supreme Court, the State argued that the plaintiffs lacked standing to challenge the regulations. Id. at 416. The Court allowed two nonresident fisherman to join the case as Plaintiffs-Appellees to eliminate any potential dispute over the plaintiffs' standing. The Court observed, "The addition of these two parties plaintiff can in no wise embalrass the defendant. Nor would their earlier joinder have in any way affected the course of the litigation." Id. at 417. Likewise, in Rogers, 382 U. S. at I 99, the Court granted certiorari in a school desegregation case brought by two black students. By the time the case reached the Court, however, one of the students had graduated, and the other was a senior. The Court allowed two younger students to join as plaintiffs-petitioners, because they were "seeking the same relief for all the reasons offered by the original party plaintiffs." Id.; see also Cql. Credit (Jnion,190 F.3d at998 ("We conclude that the United States can join this action [on appeal] as a co-plaintiff and that the United States['] belated joinder retroactively cures any jurisdictional defect that previously existed."); Day,505 F.3d at965 (allowing aparty to intervene in a pending appeal 4
Case: 12-16882 10/24/2012 ID: 8375643 DktEntry: 23 Page: 5 of 8 after the panel issued its ruling, for the purpose of filing a petition for rehearing en banc). THE NEVADA REPUBLICAN PARTY HAS A SUBSTANTIAL LEGAL INTEREST IN THIS CASE Allowing the Party to join this appeal as a PlaintifÊAppellee will remedy any potential standing, mootness, or other justiciability issues Secretary Miller or Intervenor Kingsley Edwards may attempt to raise to avoid reaching the merits of Nev. Rev. Stat. ç 293.269's constitutionality. The Party has a legally enforceable interest in protecting candidates who run on its "Republican" line in all future statewide races from having to compete against an allegedly unconstitutional and illegal ballot option such as "None of these Candidates.",See Drake v. Obama,664 F.3d 774,782 (9th Cir. 2OlD.2 This Court has "upheld the notion of 'competitive standing,"' under which "a candidate or his political party has standing to challenge the inclusion of an allegedly ineligible rival on the ballot, on the theory that doing so hurts the candidate's or party's own chances of prevailing in the election." Id. at782-83. Because the "allegedly ineligible rival" in this case-the "None of These Candidates" ballot option-may siphon votes from individuals who otherwise would vote for the Republican candidate) see, e,g.,declaration of Todd Dougan, ' Sut also Tex. Democratic Party v. Benkiser, 459 F.3d 582, 587 n.4 (5th Cir. 2006) (holding that a political party has standing to challenge decisions regarding ballots that may reduce its candidates' chances for success, because "fp]olitical victory accedes power to the wining pa$, enabling it to better direct the machinery of government toward the party's interests"); Schulz v. lyilliams, 44 F.3d 48, 53 (2d Cir. 1994) (holding that a plaintiff political party has standing to challenge "the improper placing of an additional party... on the state-wide ballot" because it could "siphon votes" from the plaintiff political party's candidates "and therefore adversely affect [its] interests"); Fulani v. Hogsett,9IT F.2d 1028, 1030 (7th Cir. 1990) (holding bhat a political party has standing to challenge "increased competition" on the ballot from allegedly invalidly added rivals). 5
Case: 12-16882 10/24/2012 ID: 8375643 DktEntry: 23 Page: 6 of 8 Dist. Ct. Dock. #15-6, '1TlT6-7 (June 28,2012), it hurts the Nevada Republican Party's "chances of prevailing" in future statewide races. Furthermore, future Republican candidates in statewide races have their own personal interests in avoiding competition from an unconstitutional and illegal ballot option, Drake, 664 F.3d at 782-83, and the Republican Party has associational standing to protect and assert those interests, as well. Benkiser,459 F.3d at 587 (holding that a state party "has associational standing on behalf of its candidate" to challenge state action that "threaten fthe candidates'] election prospects"). The Party also has standing to assert the right of its members to receive a ballot in which they do not face the possibility of having their vote ignored in determining the outcome of the election, depending on which of the officially presented options they select. See Sanduslcy Cnty. Democratic Party v. Blaclauell, 387 F.3d 565, 573 (6th Cir. 2004) (holding that political parties have standing to assert the rights of their member voters in election-related litigation); cf, Crawþrd v. Mqrion Cnty. Election Bd., 472F.3d949,951 (7th Cir.2007) ("The Democratic Party also has standing to assert the rights of those of its members who will be prevented by voting by the new law."), ú'd 553 U.S. 181 (2008). Thus, the Party has both direct and associational standing-on behalf of both its candidates and members-to join in this lawsuit and challenge Nevada's "None of These Candidates" statute. 6
Case: 12-16882 10/24/2012 ID: 8375643 DktEntry: 23 Page: 7 of 8 CONCLUSION For these reasons, Movants respectfully request that this Court allow the Nevada Republican Party to join this appeal as a PlaintifÊAppellee. Dated October 24,2012 SNELL & \MILMER r.r.p By: /s/ Paul Swen Paul Swen Prior Nevada Bar No. 9324 3883 Howard Hughes Parkway suite 1100 Las Vegas, Nevada 89169 Michael T. Morley 616 E Street, N.W. #254 Washington, D.C. 20004 Telephone (860) 778-3883 Attorneys þr Plaintffi 7
Case: 12-16882 10/24/2012 ID: 8375643 DktEntry: 23 Page: 8 of 8 CERTIFICATE OF SERVICE I hereby certiff that I electronically filed the MorroN FoR JOINDER of PLAINTIFFS.APPELLEES AND PUTATIVE PLAINTIFF.APPELLEE REPUBLICAN PARTY of NEVAUA with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CMÆCF system on October 24r 2012. Participants in the case who are registered CMÆCF users will be served by the appellate CMÆCF system. I further certiff that some of the participants in the case are no registered CMÆCF 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/ecr participants: Catherine Cortez Masto, Esq. Kevin Benson, Esq. Attorney General's Office 100 North Carson Street Carson City, Nevada 89701-4717 Telephon e: (7 7 5) 684-l I 1 4 Attorneys for DefendanlAppellant Ross Miller, Secretary of State John P. Parris, Esq. Law Offices of John P. Parris 324 South Third Street, Suite 1 Las Vegas, NV 89101 Telephon e: (7 02) 3 82-0905 Facsimile : (7 02) 382-6903 Attorney for Intervenor/DefendanlAppellant Kingsley Edwards 15986t77 Em of Snell & \Milmer L.L.P 8