ACLJ Joins 9th Circuit Appeal Challenging Election Worker Protection Bill

“This draconian punishment hangs as a sword of Damocles over the heads of all Nevadans who wish to exercise their constitutional rights to monitor election procedures, advocate for electoral integrity, or otherwise participate in the democratic process.”–ACLJ

Today, the American Center For Law and Justice (ACLJ) announced they had filed an amicus brief (see below) in the 9th Circuit Court of Appeals, joining an appeal filed last May by Attorney and Republican National Committeewoman Sigal Chattah.

Last year, Chattah, representing four plaintiffs, sued Governor Joe Lombardo (R) and Secretary of State Cisco Aguilar (D) challenging the legality of Senate Bill 406 known as the Election Worker Protection Bill. In October 2023, U.S. District Court Judge Cristina D. Silva dismissed Chattah’s  lawsuit based on standing, but provided the plaintiff’s opportunity to amend the complaint.

Back in June, The Globe exclusively reported that the four plaintiffs maintained that the legislation created a new category for a criminal offense toward undefined election workers. The Bill was introduced by Aguilar, passed both chambers of the Nevada Legislature, and was signed into law by Governor Lombardo.

The plaintiffs maintain that an “election official”, cited in Chapter 293 of the law, is broad, undefined and relies on “absurd” subjective complaints of threats and intimidation which would result in a Class E felony of the accused. Furthermore, they allege that the law may conflict with the current Nevada law that provides the general public, poll watchers, and volunteers to observe polling places and ballot locations, such as tabulation areas and warehouses.

The ACLJ agrees and contends that key terms in the bill are undefined and “impose vague and overbroad criminal penalties that threaten to undermine the ability of Nevadans to freely participate in the electoral process as poll workers, poll watchers, and engaged citizens.”

In her temporary ruling, Judge Silva cited that the plaintiffs do not have standing as they failed to allege a threat of “imminent, credible harm” and have failed to demonstrate “that there exists a credible threat of prosecution.” “A plaintiff’s subjective and irrational fear of prosecution is not enough to confer standing,” Silva wrote.

The ACLJ disagrees and argues that the plaintiffs have standing, arguing that “when First Amendment rights are threatened, these individuals have standing to protect their constitutional rights.”

In part, the amicus brief reads:

Many of the key terms in the law, for example, “undue influence,” are undefined. Moreover, the law imposes a potential felony conviction for any violation. This draconian punishment hangs as a sword of Damocles over the heads of all Nevadans who wish to exercise their constitutional rights to monitor election procedures, advocate for electoral integrity, or otherwise participate in the democratic process. Questioning voter fraud or raising concerns about voting irregularities could now be considered a criminal act.

Regardless, the trial court here ruled that these poll workers didn’t have standing to challenge this law. They were not even allowed a day in court to challenge its effects. Our brief responded in the appellate court by arguing that when First Amendment rights are threatened, these individuals have standing to protect their constitutional rights.

The chilling effect of such a law is palpable and immediate. By wielding the threat of felony prosecution for ill-defined “undue influence” or “intimidation,” this law discouraged many Nevadans from stepping forward to serve as poll workers or poll watchers. Even those with the courage to participate were forced to carefully self-censor their speech and actions for fear of running afoul of the law’s vague prohibitions. This self-censorship strikes at the heart of the First Amendment.

Overall, we argue that these poll workers should be allowed to challenge SB 406 before its enforcement, as the mere existence of the law threatens to chill their protected speech and associational activities related to elections. Requiring them to wait until they are actually prosecuted would undermine the important principle that First Amendment rights should not be subject to such chilling effects. Appellants only need to allege conduct “arguably” within the ambit of a statute and that a “genuine threat of imminent prosecution exists” to have standing. They do not need to prove the criminal cases against them under the statute before challenging its enforcement.

In Chattah’s amended complaint, she cites Attorney General Aaron Ford’s own words to provide a “reasonable threat” of prosecution:

On or about September 29, 2020, Attorney General Aaron Ford said he was ready to prosecute anyone attempting voter intimidation in Nevada after President Donald Trump’s call during the debate to have his supporters “go into the polls and watch very carefully.” Ford, said that he considered the president’s [Trump] comments to be a “dog whistle” encouraging voter intimidation, citing the president’s past comments suggesting that voters cast both mail and in- person ballots to test the system and his instruction for the right-wing extremist “Proud Boys” group to “stand back and stand by.

Nevada’s own Attorney General unilaterally speculated and decided that a statement to poll watchers to remain vigilant and ensure elections were not tampered with, was a call to intimidate voters and threatened to prosecute poll watchers.