[00:00:05] Speaker 03:
Good morning and may it please the courts to go chat on behalf of a talents than us at all.

[00:00:12] Speaker 03:
Good morning, your honors.

[00:00:16] Speaker 03:
This case is about a First Amendment facial challenge on a recently passed law, 2023.

[00:00:26] Speaker 03:
It is SB 406, otherwise known as currently NRS 293705.

[00:00:37] Speaker 03:
We are here today because the district court had found that plaintiffs did not have standing to challenge the law.

[00:00:46] Speaker 03:
whether it was a facial challenge?

[00:00:48] Speaker 04:
Did your clients participate as observers during the 2024 election?

[00:00:54] Speaker 03:
No, Your Honor, they did not.

[00:00:58] Speaker 02:
So... What's your theory of standing?

[00:01:01] Speaker 03:
Well, there's two actual theories of standing.

[00:01:04] Speaker 03:
Your Honor, whether we anticipate the standing coming from a pre-enforcement challenge as a criminal law that was passed because 293 actually has that criminal portion of it which makes violation of the statute, violation of it with an offense punishable up to a Class E felony.

[00:01:29] Speaker 02:
But wouldn't you have to show a credible threat of prosecution?

[00:01:33] Speaker 03:
Correct, Your Honor.

[00:01:34] Speaker 03:
So if we look at it from a pre-enforcement challenge under Tingley, one of the things that the Court has found that when we rely on prosecutorial

[00:01:48] Speaker 03:
prosecutorial discretion, whether to establish standing.

[00:01:54] Speaker 03:
Standing is automatically imputed because a criminal act that threatens the First Amendment cannot be saved by any type of standing issue.

[00:02:05] Speaker 03:
Does that make sense?

[00:02:07] Speaker 02:
No, not really.

[00:02:08] Speaker 02:
Because I think our cases say that you have to show that there is a credible threat of prosecution in order to say,

[00:02:18] Speaker 02:
that the prosecution is going to affect the plaintiffs.

[00:02:23] Speaker 02:
Otherwise, you're just speculating about whether or not they would be prosecuted.

[00:02:29] Speaker 03:
Sure.

[00:02:29] Speaker 03:
Now, I'd like to refer the court to CalPRO Life Council v. Getman, which specifically stated that when it comes to standing and we challenge a law that threatens the First Amendment, all that's required is that appellants intended to speak

[00:02:49] Speaker 03:
in a way that falls within the statute's reach, meaning if they intended to speak in a way that could end up with them being prosecuted with a Class E felony, that that is sufficient to establish the standing.

[00:03:06] Speaker 04:
I want to take you back to the sort of, I know you're answering Judge Robinson's question with respect to the credible threat, but I think first you need to establish that there is in fact some sort of infringement on your client's First Amendment rights.

[00:03:19] Speaker 04:
you know, as I read SB 406, it specifically and expressly excludes poll observation.

[00:03:27] Speaker 04:
So perhaps you can start at step one and, and.

[00:03:31] Speaker 04:
explain how we even get to a constitutional interest that's being infringed by the law.

[00:03:37] Speaker 03:
As far as the particular exclusion?

[00:03:40] Speaker 04:
You're arguing as you're sort of just conclusively stating in your argument, and I understand that you're responding to the question about the credible threat.

[00:03:49] Speaker 04:
But we first have to be able to know that there is a First Amendment issue here.

[00:03:56] Speaker 04:
And the statute that you're challenging, and a facial challenge,

[00:04:00] Speaker 04:
excludes the very conduct that your clients claim that they're going to be participating in.

[00:04:05] Speaker 03:
Actually, respectfully, Your Honor, it does not exclude poll watching, poll workers.

[00:04:11] Speaker 03:
In fact, the police have made very clear in their brief that there is no one that is subject to an exemption.

[00:04:18] Speaker 04:
One of the things that we brought up... I'm reading the statute here, and it says, this section does not limit observing the conduct of voting at a polling place pursuant to NRS 293-274.

[00:04:31] Speaker 04:
So that is what poll observation is.

[00:04:35] Speaker 04:
So how are you telling me that the statute does not exclude or specifically not apply to the very conduct that your clients claim that they're going to participate in?

[00:04:44] Speaker 03:
Well, the statute specifically does not exclude acts that we have alleged in the complaint, which would include also poll workers.

[00:04:58] Speaker 03:
And in the context that a poll worker might engage in an activity, whether it's a poll observer or a poll worker, might engage in an activity that is actually violative of their First Amendment right based on that subjective idea of what exactly are we dealing with when we are dealing with intimidation, harassment, undue influence, and so on.

[00:05:26] Speaker 01:
Maybe I'm not sure I totally understood that, but maybe to come at it from another angle, could you?

[00:05:33] Speaker 01:
The complaint is, on my reading, a little bit vague about exactly what the conduct is that you want to engage in at polling places.

[00:05:43] Speaker 01:
So can you sort of spell out a little what your proposed course of conduct would be that you fear might get you in trouble under the statute?

[00:05:53] Speaker 03:
Well, I think the analysis that needs to be made is because the statute itself is vague, what the conduct is, is the appellant in this case didn't participate in the 2024 poll observing.

[00:06:11] Speaker 01:
Okay, but if you win or if the statute disappeared, what is it that you want to do?

[00:06:16] Speaker 04:
Or what is it that your clients did not do that they would want it to have done?

[00:06:21] Speaker 03:
Well, at the outset, they did not engage in the poll working and poll observing in the 2024 election.

[00:06:29] Speaker 02:
That's not prohibited by the statute, though.

[00:06:32] Speaker 03:
Agreed.

[00:06:33] Speaker 03:
Agreed.

[00:06:33] Speaker 03:
But what is prohibited by the statute is any act that would intimidate, harass, undue influence.

[00:06:41] Speaker 04:
So your clients want to intimidate.

[00:06:43] Speaker 04:
They want to harass.

[00:06:45] Speaker 03:
They want to threaten acts of violence?

[00:06:48] Speaker 03:
No, Your Honor, they do not want to intimidate and harass.

[00:06:51] Speaker 03:
But what the problem was, because there is no definition on what intimidation is, what is harassment, what is undue influence, the statute itself is so vague as to that definition that

[00:07:09] Speaker 03:
appellants were fearful that any type of act taken subjectively may have been viewed as intimidating, harassing.

[00:07:21] Speaker 01:
Can you give us some examples of the kinds of acts that your clients wanted to engage in that they feared might be deemed intimidating?

[00:07:29] Speaker 03:
So if, for example, a poll worker, and we have this delineated in the complaint, there's things called rovers that work at poll locations.

[00:07:41] Speaker 03:
If, for example, a rover gets into a dispute,

[00:07:46] Speaker 03:
with one of the other elections workers, and the rover uses a certain tone with that election worker.

[00:07:55] Speaker 03:
And that election worker might take that as, oh, well, you're trying to interfere with my ability.

[00:08:02] Speaker 03:
Now, when we deal with the issue of taking it from a criminal context,

[00:08:07] Speaker 03:
One of the things that we mention in the briefs is because the standard is so subjective at what would be interfering or intimidating, that is a type of example that we had made in the complaint and in the briefing.

[00:08:29] Speaker 03:
So I could give you another example.

[00:08:33] Speaker 01:
And this maybe goes back to Judge Rawlinson's first question.

[00:08:40] Speaker 01:
Do you have any reason to think that the people responsible for prosecution would deem that to be a violation and would then bring a prosecution?

[00:08:49] Speaker 03:
Well, and that brings us back to what the courts have stated in U.S.

[00:08:55] Speaker 04:
v. Fisher, where basically... I think the question... I'd really like you to answer the question I think that's been asked now several times by several members of this panel, which is, don't cite to a case.

[00:09:08] Speaker 04:
Tell us factually what you are alleging.

[00:09:12] Speaker 04:
constitutes the basis of what you believe is, gives rise to the possibility that this law will be enforced the way that you claim that it is going to be enforced against your client.

[00:09:24] Speaker 04:
So what specific things, and I'm looking in your complaint and all that I can see is a reference to a 2020 tweet that's been made by the Nevada Attorney General, which of course predated the enactment of this law.

[00:09:39] Speaker 04:
So to me that doesn't really fit.

[00:09:41] Speaker 04:
What else can you point to that indicates that you believe there is going to be a credible threat of enforcement?

[00:09:49] Speaker 04:
Not a law, but facts.

[00:09:51] Speaker 03:
Okay.

[00:09:52] Speaker 03:
Well, as far as, just so I'm understanding the question correctly, as far as what kind of threats would be made as to the specific acts that these appellants would engage in?

[00:10:07] Speaker 04:
Your argument is that there is going to be an infringement on the constitutional rights of your clients.

[00:10:17] Speaker 04:
And we have to be able to identify whether or not there is actually any evidence to support the notion that this law will be enforced in the way that you are alleging

[00:10:30] Speaker 04:
that it is.

[00:10:31] Speaker 04:
What are those facts?

[00:10:33] Speaker 03:
Okay, well we know that the law was actually passed and the decision was made before the 2024 election.

[00:10:42] Speaker 03:
That being said, what

[00:10:46] Speaker 03:
What we have to realize is that while there has been no threat of prosecution as to the appellants, because the appellants themselves did not participate in the 2024 election for fear of this prosecution, what we look at is we do look at the context... Have there been any threats of prosecution against Rovers, for example?

[00:11:10] Speaker 03:
against rovers, against other employees, supervisors, all the possibilities?

[00:11:17] Speaker 04:
No, no, not possibility.

[00:11:18] Speaker 04:
Have there been threats of enforcement against poll observers, poll workers, rovers?

[00:11:25] Speaker 04:
Any of those?

[00:11:27] Speaker 03:
During the 2024 election, no, not that I know of.

[00:11:29] Speaker 03:
Not that I know of.

[00:11:32] Speaker 03:
That being said, I think it is a credible statement that a 2020 tweet that had taken place calling poll watchers

[00:11:45] Speaker 03:
election interference, engaging in election interference, and alleging that necessarily poll watchers were going to be used as a, this was some kind of a dog whistle to actually interfere with an election, actually

[00:12:02] Speaker 03:
does make sense to a credible threat on a law that was already on the books in 2020, which would have been the law that is the harassment of the public official and so on and so forth.

[00:12:21] Speaker 02:
Do either of those officials have the authority to prosecute under the statute?

[00:12:28] Speaker 03:
Both of those have the authority to commence the investigation and the prosecution.

[00:12:34] Speaker 03:
The governor is the chief.

[00:12:37] Speaker 02:
How would the governor commence a prosecution?

[00:12:41] Speaker 03:
Well, I think that the governor is calling on the attorney general's office.

[00:12:47] Speaker 04:
They could make a referral, potentially.

[00:12:49] Speaker 03:
Why didn't you sue the attorney general?

[00:12:51] Speaker 03:
I don't have an answer to that.

[00:12:56] Speaker 01:
But neither, I mean, is your answer to Judge Rawlinson's question that neither the governor nor the secretary of state can on his or her own bring a criminal prosecution?

[00:13:06] Speaker 03:
I think that the secretary of state actually can bring a prosecution because he is the, I believe, the chief law enforcement officer on elections.

[00:13:20] Speaker 04:
I think the Secretary of State is the chief elections officer for the state.

[00:13:25] Speaker 03:
Yes, I'm sorry.

[00:13:26] Speaker 03:
But not law enforcement.

[00:13:28] Speaker 03:
No, on the elections.

[00:13:30] Speaker 01:
And sort of the flip side, if a county prosecutor were to bring a prosecution, would either the governor or the Secretary of State have authority to order the county prosecutor not to proceed with that prosecution?

[00:13:43] Speaker 03:
I think that under the governor's powers, he does have the ability to preclude a county prosecutor from prosecution.

[00:13:54] Speaker 02:
What statute would say that?

[00:13:56] Speaker 03:
It is in my brief.

[00:14:01] Speaker 03:
I believe it is the court's indulgence.

[00:14:05] Speaker 02:
I've been in the DA's office for 17 and a half years, and I never knew the governor to tell the DA when

[00:14:13] Speaker 02:
he or she could he could prosecute.

[00:14:15] Speaker 03:
It is in my brief, Your Honor.

[00:14:18] Speaker 02:
Let's have that statute.

[00:14:20] Speaker 03:
I'm sorry.

[00:14:20] Speaker 03:
Oh, you can't.

[00:14:21] Speaker 03:
You don't recall it right now.

[00:14:22] Speaker 03:
I'm not off the top.

[00:14:23] Speaker 02:
I had your honor.

[00:14:24] Speaker 03:
It is in my briefing, though.

[00:14:27] Speaker 03:
Actually,

[00:14:31] Speaker 03:
I apologize, the court's indulgence.

[00:14:34] Speaker 03:
The governor, Article 5, Section 13 of the Nevada Constitution includes pardons, reprieves, and commutations of sentences, remissions of fines, and forfeiture.

[00:14:45] Speaker 03:
The governor shall have the power to suspend the collection of...

[00:14:51] Speaker 03:
fines, forfeitures, and reprieves for a period not exceeding from the time of conviction for all offenses except in cases of impeachment.

[00:14:59] Speaker 03:
So I do find that Article 5.

[00:15:02] Speaker 02:
Pardon authority, but it can't tell the DA.

[00:15:06] Speaker 02:
The governor cannot tell the DA to cease a prosecution or to commit a prosecution.

[00:15:17] Speaker 03:
Any further questions?

[00:15:18] Speaker 01:
And if that's right, it doesn't follow that even if you had an injury in fact, that injury was not caused by these defendants and could not be redressed by relief against these defendants because the prosecution would be brought by the AG or the county prosecutors or some other people, right?

[00:15:38] Speaker 03:
There could be that argument that is made that the governor cannot bring prosecutions.

[00:15:47] Speaker 01:
But, I mean, if that argument is made and is accepted, doesn't that mean that you lack standing here because you can't establish causation and redressability?

[00:16:00] Speaker 01:
Possibly.

[00:16:00] Speaker 02:
Did you want to save some time for regardless?

[00:16:04] Speaker 03:
Yes, Your Honor.

[00:16:05] Speaker 03:
I would like to.

[00:16:05] Speaker 03:
I'm down to four minutes.

[00:16:06] Speaker 03:
Thank you.

[00:16:08] Speaker 02:
We're here for the state.

[00:16:13] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:16:15] Speaker 00:
I'm Lena St.

[00:16:16] Speaker 00:
Jules on behalf of the Nevada Secretary of State.

[00:16:18] Speaker 00:
With me here today is Jessica Whalen on behalf of the governor.

[00:16:21] Speaker 00:
I'll be arguing on behalf of both defendants.

[00:16:25] Speaker 00:
This case concerns reasonable protections designed to stem the tide of incredible turnover in elections officials across the state due to harassment and death threats.

[00:16:36] Speaker 00:
SB 406 was enacted to protect elections officials

[00:16:40] Speaker 00:
who are performing their elections duties.

[00:16:42] Speaker 00:
This case was properly dismissed, and we ask that this court affirm.

[00:16:47] Speaker 00:
Plaintiff's complaint fails for a number of independently sufficient reasons.

[00:16:51] Speaker 00:
I'll start first by discussing why plaintiff's claims are not justiciable, and I'll also discuss the 11th Amendment issue.

[00:16:58] Speaker 00:
So turning to justiciability, as the court is aware, conduct that is arguably prescribed by statute must be alleged.

[00:17:06] Speaker 00:
And here we simply just don't have that.

[00:17:08] Speaker 04:
Let me ask you this.

[00:17:09] Speaker 04:
In the First Amendment context, plaintiffs don't need to show a specific threat of enforcement.

[00:17:15] Speaker 04:
If their alleged speech is arguably prescribed by the statute, that's enough.

[00:17:20] Speaker 04:
So if there's a circumstance in which a poll observer saw something that they didn't agree with or they thought was wrong and they, after

[00:17:30] Speaker 04:
sharing their disagreement or telling the elections administrator or the person administering the election that they disagreed or they thought it was wrong made a threat to file a lawsuit.

[00:17:43] Speaker 04:
Would that be enough to come under the ambit of this particular statute in terms of the chilling of speech?

[00:17:51] Speaker 00:
I don't believe so.

[00:17:52] Speaker 00:
I think there's laws on intimidation, and I don't think just filing a lawsuit is enough to give rise to criminal prosecution.

[00:17:58] Speaker 04:
So because there's no definition of the term in this particular statute, how can we know that threatening a lawsuit, for example, after sharing some disagreement about

[00:18:08] Speaker 04:
the administration of election isn't enough.

[00:18:10] Speaker 00:
Intimidation has been defined in other contexts by this court and other courts, and I don't think I've ever seen a case suggesting that that could be extended to bringing a lawsuit.

[00:18:24] Speaker 00:
I think the settled legal meeting wouldn't include that.

[00:18:27] Speaker 04:
So tell us why, even if we were to find that there's arguably some sort of prescribed conduct under the statute, we still can find in your favor with respect to the standing issue.

[00:18:38] Speaker 00:
Well, I think traceability is also an issue.

[00:18:40] Speaker 00:
They've sued the wrong defendants.

[00:18:42] Speaker 00:
And the governor and the secretary, there is nothing in the record that suggests they have criminal prosecutorial authority.

[00:18:50] Speaker 01:
So I think... It's not really a record question.

[00:18:52] Speaker 01:
It's just a question of Nevada law.

[00:18:54] Speaker 01:
I mean, is it your representation that under Nevada law, neither the governor nor the secretary of state can bring a criminal prosecution or direct the bringing of a criminal prosecution?

[00:19:05] Speaker 00:
I haven't found any statute that would suggest they have that authority.

[00:19:08] Speaker 01:
And does either of them have authority if some other official who does have authority were to bring a prosecution, would either the governor or the secretary of state have authority to tell them to stop?

[00:19:21] Speaker 00:
Again, I've seen no statute suggesting as much.

[00:19:27] Speaker 00:
So I think on its face, nothing in the complaint alleges conduct that could possibly be reached by SB 406.

[00:19:35] Speaker 00:
And we're dealing with what's alleged in the complaint.

[00:19:37] Speaker 00:
And I don't see any conduct other than working as a poll worker or as a poll observer.

[00:19:41] Speaker 00:
And those aren't covered by SB 406 without something more.

[00:19:49] Speaker 00:
So I think for those reasons, standing fails.

[00:19:53] Speaker 00:
I'll turn to the 11th Amendment.

[00:19:57] Speaker 00:
Nevada has not waived its 11th Amendment immunity, so plaintiffs would have to establish that the state officer defendants have some connection with the enforcement of the act, and that must be fairly direct.

[00:20:09] Speaker 00:
For that reason, a governor who only has a general duty to enforce the state's laws is entitled to 11th Amendment immunity as held in Association des Éleveurs.

[00:20:17] Speaker 00:
While plaintiffs refer to the governor's post-conviction clemency powers, that does not give him a connection to the front-end enforcement of SB 406.

[00:20:26] Speaker 00:
And for essentially the same reasons, the secretary also does not have a sufficiently direct connection to the enforcement of SB 406.

[00:20:33] Speaker 00:
He is Nevada's chief election officer, but he only has a general duty to enforce the elections laws.

[00:20:40] Speaker 00:
There's nothing more that connects him

[00:20:41] Speaker 00:
to the enforcement, for instance, I'm not aware of anything that gives him policing or investigatory authority, or the power to arrest, or the power to institute administrative proceedings, or the power to refer for criminal prosecution, or the power to assist in a prosecution, or the power to criminally enforce a statute.

[00:21:05] Speaker 00:
to try to salvage their claims.

[00:21:13] Speaker 00:
They point to the secretary's ability to enact regulations.

[00:21:18] Speaker 00:
He hasn't enacted any regulations relating to SB 406, and in any event, enacting regulations in Nevada generally requires legislative approval.

[00:21:29] Speaker 00:
Plaintiffs also argue that the governor signed SB 406 into law, but all of these acts touch on legislative functions, not on questions of enforcement.

[00:21:39] Speaker 00:
And as the Supreme Court has held, officials outside of the legislative branch are entitled to legislative immunity when they perform legislative functions.

[00:21:48] Speaker 00:
This is Bogan v. Scott Harris, 523 U.S.

[00:21:50] Speaker 00:
44.

[00:21:52] Speaker 00:
So 11th Amendment bars this action and force substantially the same reasons.

[00:21:57] Speaker 00:
Traceability just doesn't exist here either.

[00:21:59] Speaker 00:
I'd be happy to go into the merits if Your Honors have any questions.

[00:22:03] Speaker 02:
It appears not.

[00:22:04] Speaker 00:
Well, thank you, Your Honor.

[00:22:14] Speaker 03:
Thank you, Your Honors.

[00:22:15] Speaker 03:
I'd like to respond to one of the questions that was posed.

[00:22:21] Speaker 03:
NRS 293-124 actually does state that the Secretary of State shall serve as Chief Executive Officer.

[00:22:29] Speaker 03:
As Chief Officer, the Secretary of State is responsible for execution and enforcement of Title

[00:22:35] Speaker 03:
24 NRS and all provisions of state and federal law relating to elections.

[00:22:42] Speaker 03:
So he does have the power to enforce these laws, whether by utilizing the Attorney General's office or the 17 counties district attorneys.

[00:22:53] Speaker 03:
Another one of the issues that I did want to bring up that I feel needs to be clarified

[00:22:59] Speaker 03:
is that when we talk about the actual criminal penalties that are involved, one of the things that we need to address is that the physical act of committing a crime under SB 406 threatens the First Amendment.

[00:23:14] Speaker 03:
And that is at the outset because of the undefined scope of its prohibitions.

[00:23:21] Speaker 03:
And again, when we talk about

[00:23:23] Speaker 03:
the vagueness of what it means to actually be intimidating or undue influence or harassment.

[00:23:37] Speaker 03:
And one of the things that I believe when we look at Fisher v. US that Justice Roberts had clearly indicated that a phrase that can have more focused terms

[00:23:53] Speaker 03:
and a more focused meaning to it should be used rather than vague terms such as that do not put our appellants, first of all, or any individual on notice of what is the crime that they are potentially going to be charged with and whether that has any further ramifications on that.

[00:24:15] Speaker 03:
And our request is that the court

[00:24:19] Speaker 03:
reverse and remand the case for further adjudication.

[00:24:24] Speaker 03:
Thank you.

[00:24:25] Speaker 02:
Thank you, counsel.

[00:24:26] Speaker 02:
Thank you to both counsel for your helpful arguments.

[00:24:29] Speaker 02:
The case just argued is submitted for decision by the court.

[00:24:32] Speaker 02:
That completes our calendar for the day and for the week.

[00:24:36] Speaker 02:
We are adjourned.

[00:25:02] Speaker 03:
There's more for this session.