Case: Fight for Nevada v. Cegavske

2:20-cv-00837 | U.S. District Court for the District of Nevada

Filed Date: May 11, 2020

Closed Date: May 26, 2020

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Case Summary

This lawsuit challenged a statutory deadline for gathering signatures on a petition for the recall of an elected official during the COVID-19 pandemic. On May 11, 2020, a committee established for the purpose of recalling Nevada's Governor Steve Sisolak filed suit under 42 U.S.C. § 1983 in the U.S. District Court for the District of Nevada against the Nevada Secretary of State in her official capacity, pursuant to the First and Fourteenth Amendments to the U.S. Constitution. The committee, repr…

This lawsuit challenged a statutory deadline for gathering signatures on a petition for the recall of an elected official during the COVID-19 pandemic. On May 11, 2020, a committee established for the purpose of recalling Nevada's Governor Steve Sisolak filed suit under 42 U.S.C. § 1983 in the U.S. District Court for the District of Nevada against the Nevada Secretary of State in her official capacity, pursuant to the First and Fourteenth Amendments to the U.S. Constitution. The committee, represented by a private law firm, sought declaratory judgment and permanent, preliminary, and emergency injunctive relief to prevent the Nevada Secretary of State from enforcing a state law setting the deadline for petitions to recall a public officer. The case was assigned to Judge Richard Boulware II.

The plaintiffs argued that the normal statutory deadline for obtaining the requisite number of signatures to trigger a recall election of a public officer should be extended given the hardship imposed by the COVID-19 pandemic and Governor Sisolak’s ensuing emergency directives. Under NRS 306.105, a group wishing to trigger a special recall election of a public official must obtain the signatures of 25% of the “registered voters who voted in the State . . . at the general election at which the public officer was elected.” Here, the committee needed to acquire approximately 249,500 signatures in order to successfully petition for a recall election.

After the committee filed the required notice of intent with the Secretary of State, the state statute provided 90 days for the committee to obtain the appropriate signatures for the petition, with one required check-in with the Secretary at the halfway mark. The committee filed its notice of intent on February 14, 2020 and provided the Secretary an updated list of signatures on March 30, 2020, thus complying with the midpoint check-in requirement. However, at that midpoint, it had only obtained about 6.5% of the required signatures, with the deadline of May 14, 2020 fast approaching. 

In the meantime, Governor Sisolak issued emergency directives in response to the COVID-19 pandemic in March 2020, which included shutting down non-essential businesses and ordering individuals to refrain from leaving their residences except for essential purposes. Given these directives, the plaintiffs argued that they could not comply with the May 14, 2020 deadline and sought to prevent the Secretary from enforcing it, alleging that the Secretary’s denial to extend the deadline violated its First and Fourteenth Amendment rights to free speech, freedom of political association, equal protection, and due process. The Secretary had declined to extend the deadline, stating that it was not within her legal authority to do so. The committee also filed a Temporary Restraining Order asking the court to grant an extension of the filing deadline by an amount of time equal to the duration of Governor Sisolak’s emergency directives.

Four days later, Judge Richard F. Boulware denied the plaintiffs' request for a TRO, holding that they could not establish a likelihood of success on the merits of their First and Fourteenth Amendment claims and had not established irreparable injury. 460 F.Supp.3d 1049. The bulk of the court’s analysis focused on the First Amendment ballot-access issue. The court acknowledged a federally protected right to vote and associate for political purposes, but found that the committee had not adequately demonstrated that such federally protected rights extend to the filing of recall petitions. The plaintiffs “appear[ed] to be conflating the right to submit a recall petition with the right to vote in the special election that follows it.”

Additionally, the court held that even if the committee had raised a valid First Amendment ballot-access claim, the election regulations at issue would only require rational basis review, not strict scrutiny. The plaintiffs did not present evidence sufficient to demonstrate a severe burden on any First Amendment right. As the plaintiffs acknowledged, nothing prevented them from filing another notice of intent and filing another petition if the deadline for the petition at issue lapsed. Although the court acknowledged that restarting the process could impose some burden on the committee, the committee itself did not set forth facts establishing the extent of any additional expense or time. Given the slim likelihood of success on the merits, the court denied the motion for a TRO.

On May 26, 2020, the plaintiffs filed a Notice of Voluntary Dismissal without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1). The court subsequently terminated the case.

Summary Authors

Zoe Goldstein (1/31/2022)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/17145806/parties/fight-for-nevada-v-cegavske/


Judge(s)

Boulware, Richard Franklin II (Nevada)

Youchah, Elayna J (Nevada)

Attorney for Plaintiff

Barnes, Robert E (California)

Jaeger, Jeffrey (Nevada)

Attorney for Defendant

Zunino, Gregory Louis (Nevada)

Judge(s)

Boulware, Richard Franklin II (Nevada)

Youchah, Elayna J (Nevada)

Attorney for Defendant

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Documents in the Clearinghouse

Document

2:20-cv-00837

Docket [PACER]

May 26, 2020

May 26, 2020

Docket
1

2:20-cv-00837

Complaint for Injunctive and Declaratory Relief

May 11, 2020

May 11, 2020

Complaint
17

2:20-cv-00837

Order

May 15, 2020

May 15, 2020

Order/Opinion

460 F.Supp.3d 460

18

2:20-cv-00837

Notice of Dismissal Pursuant to F.R.C.P. 41(a)(1)

May 26, 2020

May 26, 2020

Pleading / Motion / Brief

Resources

Docket

See docket on RECAP: https://www.courtlistener.com/docket/17145806/fight-for-nevada-v-cegavske/

Last updated March 18, 2024, 3:04 a.m.

ECF Number Description Date Link Date / Link
1

COMPLAINT against Barbara C. Cegavske (Filing fee $400 receipt number 0978-5998334) by Fight for Nevada. Proof of service due by 8/9/2020. (Attachments: # 1 Civil Cover Sheet, # 2 Summons) (Jaeger, Jeffrey) NOTICE of Certificate of Interested Parties requirement: Under Local Rule 7.1-1, a party must immediately file its disclosure statement with its first appearance, pleading, petition, motion, response, or other request addressed to the court. (Entered: 05/11/2020)

1 Civil Cover Sheet

View on PACER

2 Summons

View on PACER

May 11, 2020

May 11, 2020

Clearinghouse

Standing Order

May 11, 2020

May 11, 2020

PACER

Assign Judges in Civil Case

May 11, 2020

May 11, 2020

PACER

Case randomly assigned to Judge Richard F. Boulware, II and Magistrate Judge Elayna J. Youchah. (JM)

May 11, 2020

May 11, 2020

PACER
2

STANDING ORDER. This case has been assigned to the Honorable Judge Richard F. Boulware, II. Judge Boulware's Chambers Practices, which are posted on the U.S. District Court, District of Nevada public website, may also be accessed directly via this hyperlink: www.nvd.uscourts.gov. (Copies have been distributed pursuant to the NEF - JM) (Entered: 05/11/2020)

May 11, 2020

May 11, 2020

PACER
3

Summons Issued as to Barbara Cegavske. (JM) (Entered: 05/11/2020)

May 11, 2020

May 11, 2020

PACER
4

NOTICE TO COUNSEL PURSUANT TO LOCAL RULE IA 11-2. Counsel Robert E. Barnes to comply with completion and filing of the Verified Petition and Designation of Local Counsel. For your convenience, click on the following link to obtain the form from the Court's website - www.nvd.uscourts.gov. Upon approval of the Verified Petition, counsel is required to register for the Court's Case Management and Electronic Case Filing (CM/ECF) system and the electronic service of documents. Please visit the Court's website www.nvd.uscourts.gov to register Attorney. Verified Petition due by 5/25/2020. (no image attached) (JM) (Entered: 05/11/2020)

May 11, 2020

May 11, 2020

PACER
5

Emergency MOTION for Temporary Restraining Order by Plaintiff Fight for Nevada. (Attachments: # 1 Declaration, # 2 Proposed Order) (Barnes, Robert) (Entered: 05/12/2020)

1 Declaration

View on RECAP

2 Proposed Order

View on RECAP

May 12, 2020

May 12, 2020

RECAP

~Util - Terminate Deadlines/Hearings

May 12, 2020

May 12, 2020

PACER
6

MOTION/VERIFIED PETITION for Permission to Practice Pro Hac Vice by Robert E. Barnes and DESIGNATION of Local Counsel Jeffrey Jaeger (Filing fee $ 250 receipt number 0978-6000538) by Plaintiff Fight for Nevada. (Barnes, Robert) (Entered: 05/12/2020)

May 12, 2020

May 12, 2020

PACER
7

MINUTE ORDER IN CHAMBERS of the Honorable Richard F. Boulware, II on 5/12/2020. IT IS ORDERED that Defendant shall make an appearance in this action for the purpose of responding to Plaintiff's 5 Emergency Motion for Temporary Restraining order. Defendant shall file its response by May 13, 2020 at 10:00 AM. The appearance does not constitute a waiver of service. The courtroom deputy is directed to notice defense counsel. (no image attached) (Copies have been distributed pursuant to the NEF - BEL) (Entered: 05/12/2020)

May 12, 2020

May 12, 2020

PACER
8

CLERK'S NOTICE Regarding Local Rule IC 5-1(b). ECF Nos. 1 and 5 were not filed pursuant to LR IA 10-2. Documents are not properly formatted. Also, see LR IA 6-2. A signature block must not being on a separate page. Attorney Robert Barnes is advised in the future to file documents pursuant to the Local Rules.No further action is required concerning this document at this time. Do NOT refile. (no image attached) (MMM) (Entered: 05/12/2020)

May 12, 2020

May 12, 2020

PACER
9

WAIVER of SERVICE by Barbara Cegavske. (Zunino, Gregory) Modified event on 5/13/2020 (MMM). (Entered: 05/12/2020)

May 12, 2020

May 12, 2020

PACER
10

DECLARATION of Wayne Thorley re 1 Complaint, 5 Motion for TRO by Defendant Barbara Cegavske. (Attachments: # 1 Exhibit Notice of Intent) (Zunino, Gregory) (Entered: 05/12/2020)

1 Exhibit Notice of Intent

View on PACER

May 12, 2020

May 12, 2020

RECAP
11

RESPONSE to 5 Motion for TRO by Defendant Barbara Cegavske. Replies due by 5/20/2020. (Zunino, Gregory) (Entered: 05/13/2020)

May 13, 2020

May 13, 2020

RECAP

~Util - Terminate Deadlines/Hearings

May 13, 2020

May 13, 2020

PACER

Order on Verified Petition for Permission to Practice Pro Hac Vice

May 13, 2020

May 13, 2020

PACER
12

MINUTE ORDER IN CHAMBERS of the Honorable Richard F. Boulware, II on 5/13/2020. IT IS ORDERED that Plaintiff shall file a reply, if Plaintiff so desires, by no later than 4:00 PM today, May 13, 2020. (no image attached) (Copies have been distributed pursuant to the NEF - BEL) (Entered: 05/13/2020)

May 13, 2020

May 13, 2020

PACER
13

MINUTE ORDER IN CHAMBERS of the Honorable Judge Richard F. Boulware, II on 5/13/2020. IT IS HEREBY ORDERED that a ruling on Verified Petition for Permission to Practice Pro Hac Vice and Designation of Local Counsel 6 is DEFERRED. IT IS FURTHER ORDERED that Petitioner Robert E. Barnes shall provide a current Certificate of Good Standing from EACH state in which Petitioner has been admitted to practice law, in accordance with the instruction set forth on Page 2, No. 3 of the Verified Petition For Permission To Practice In This Case Only By Attorney Not Admitted To The Bar Of This Court And Designation Of Local Counsel. Petitioner shall have 14 days from the entry of this order to file the corrected Verified Petition using the "Notice of Corrected Image/Document" event. Failure to timely remedy this deficiency will result in the denial of the Verified Petition, and Petitioner will be required to refile and to repay the filing fee. (Copies have been distributed pursuant to the NEF - CVL) (Entered: 05/13/2020)

May 13, 2020

May 13, 2020

PACER
14

REPLY to Response to 5 Motion for TRO by Plaintiff Fight for Nevada. (Barnes, Robert) (Entered: 05/13/2020)

May 13, 2020

May 13, 2020

RECAP
15

MINUTE ORDER IN CHAMBERS of the Honorable Richard F. Boulware, II on 5/14/2020. WHEREAS, The Chief Judge of the District due to the global pandemic has declared an emergency in this District pursuant to General Orders 2020-02 through 2020-05, which have significantly limited and restricted courthouse operations, including the elimination of almost all in-person court proceedings; WHEREAS, this Court has also found, due to the danger to the community, including the parties, court staff and the attorneys in this case, that in-person appearances must be restricted until courthouse operations can safely resume and that cases will generally be heard only by remote appearance; WHEREAS, the Court has reviewed the record in this case and finds that the a Status Conference Hearing shall be set for by videoconference appearance is set for May 14, 2020 at 4:00 PM in LV Courtroom 7C before Judge Richard F. Boulware, II. The Courtroom Deputy will provide further instructions to the parties about how the videoconference will be conducted. (no image attached) (Copies have been distributed pursuant to the NEF - BEL) Modified on 5/14/2020 (BEL). (Entered: 05/14/2020)

May 14, 2020

May 14, 2020

PACER
16

MINUTES OF PROCEEDINGS - Motion Hearing held on 5/14/2020 before the Honorable Richard F. Boulware, II. Crtrm Administrator: Blanca; Pla Counsel: Robert Barnes, Esq.; Def Counsel: Gregory Zunino, Deputy A.G.; Court Reporter: Patty Ganci; Time of Hearing: 4:07 PM - 4:32 PM; Courtroom: 7C. Appearing telephonically, Wayne Thorley with the Nevada Secretary of State's Office along with Secretary of State Nevada, Barbara Cegavaske. The Court makes preliminary statements and hears representations from the parties regarding 5 motion for temporary restraining order and takes the motion under submission. A written order will issue.(no image attached) (Copies have been distributed pursuant to the NEF - BEL) (Entered: 05/15/2020)

May 14, 2020

May 14, 2020

PACER
17

ORDER Denying 5 Motion for Temporary Restraining Order. Signed by Judge Richard F. Boulware, II on 5/15/2020. (Copies have been distributed pursuant to the NEF - MR) (Entered: 05/15/2020)

May 15, 2020

May 15, 2020

RECAP

~Util - Terminate Deadlines/Hearings

May 16, 2020

May 16, 2020

PACER
18

NOTICE of Voluntary Dismissal by Plaintiff Fight for Nevada. (Barnes, Robert) (Entered: 05/26/2020)

May 26, 2020

May 26, 2020

PACER

Terminated Case

May 26, 2020

May 26, 2020

PACER

Civil Case Terminated per 18 Notice of Voluntary Dismissal. (ADR)

May 26, 2020

May 26, 2020

PACER

Case Details

State / Territory: Nevada

Case Type(s):

Election/Voting Rights

Special Collection(s):

COVID-19 (novel coronavirus)

Healthy Elections COVID litigation tracker

Key Dates

Filing Date: May 11, 2020

Closing Date: May 26, 2020

Case Ongoing: No

Plaintiffs

Plaintiff Description:

A committee for the recall of the election of Governor Sisolak

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Secretary of State, State

Defendant Type(s):

Jurisdiction-wide

Case Details

Causes of Action:

42 U.S.C. § 1983

Constitutional Clause(s):

Due Process

Freedom of speech/association

Equal Protection

Available Documents:

Trial Court Docket

Complaint (any)

Any published opinion

Outcome

Prevailing Party: Defendant

Nature of Relief:

None

Source of Relief:

None

Content of Injunction:

Preliminary relief denied

Issues

Voting:

Voting: General & Misc.

Candidate qualifications

Election administration