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DNC Motion To Intervene
DNC Motion To Intervene
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UNITED STATES DISTRICT COURT
18 DISTRICT OF NEVADA
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JILL STOKKE, CHRIS PRUDHOME, Case No.: 2:20-cv-02046-APG-DJA
20 MARCHANT FOR CONGRESS, RODIMER
FOR CONGRESS, MOTION TO INTERVENE AS
21 DEFENDANTS BY DNC AND
Plaintiffs, NEVADA STATE DEMOCRATIC
22 PARTY
v.
23 EXPEDITED CONSIDERATION
BARBARA CEGAVSKE, in her official REQUESTED
24 capacity as Nevada Secretary of State; Clark
County Registrar of voters JOSEPH P.
25 GLORIA, in his official capacity,
26 Defendant,
27 .
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Case 2:20-cv-02046-APG-DJA Document 10 Filed 11/06/20 Page 2 of 10
1 For the fifth time since April, a conservative leaning entity or organ of the Republican
2 Party has run to a Nevada state or federal court with entirely fabricated claims of voter fraud and
3 vote dilution.1 Each time, their claims have been unsuccessful. Indeed, just four days ago, in a
4 nearly identical case, Judge Wilson from the District Court in Carson City found after an eight-
5 hour evidentiary hearing that the same lawyers who filed this lawsuit had failed to offer evidence
6 of “any fraudulent ballot being validated or any valid ballot invalidated” or any evidence of
7 “debasement or dilution of a citizen’s vote” because of Clark County’s use of a signature match
8 machine. Ex. B, Nov. 2, 2020 Order, Kraus v. Cegavske, No. 20-OC-00142-1B, Dept. 2, at 4, 13.
9 Similarly, Judge Wilson found baseless Plaintiffs’ claims that public observation of the process
10 was being in any way unlawfully impeded. Id. at 10-11. Now, with nearly all of the votes in the
11 state having already been counted, a group of plaintiffs backed by President Trump’s campaign
12 has filed a lawsuit requesting a remedy that would meaningfully slow Clark County’s ballot
13 processing just as its votes could swing the presidential election.2 The Democratic National
14 Committee (“DNC”) and Nevada State Democratic Party (“NSDP,” together, “Proposed
16 For the first time in a general election, the vast majority of Nevadans cast their ballots by
17 mail. This sea change in election administration, all done during a pandemic, has demanded
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19 Donald J. Trump for President, Inc. v. Cegavske, No. 220CV1445JCMVCF, 2020 WL
5626974, at *7 (D. Nev. Sept. 18, 2020) (dismissing lawsuit by Trump campaign challenging
20 constitutionality of Assembly Bill 4 for lack of standing); Paher v. Cegavske, 457 F. Supp. 3d
919, 935 (D. Nev. 2020) (denying preliminary injunction challenging Secretary Cegavske’s plan
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for the June primary brought by a conservative-leaning entities); Ex. C, Sep. 28, 2020 Order, The
22 Election Integrity Project of Nevada et. al v. State of Nevada et al., No. A-20-820510-C, Dept.
13 (denying preliminary injunction by conservative-leaning group challenging constitutionality
23 of Assembly Bill 4).
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24 While the President’s campaign is not a party to this lawsuit, several individuals closely
associated with the Trump campaign came to Nevada and held a press conference on the
25 morning of November 5 announcing their intention to file these claims in federal court by day’s
end. Kyle Wilcox & Matthew Seeman, Trump Campaign alleges “illegal votes” in Nevada,
26 provides no evidence, NBC 3 News, Las Vegas, Nov. 5, 2020,
https://news3lv.com/news/local/trump-campaign-las-vegas-press-conference-nevada-election.
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1 significant adaptations from Nevada’s county elections officials, including in Clark County,
2 home to nearly 75% of the state’s population. Two days after the election and after the canvass is
3 well under way, two individual voters and two Republican congressional campaigns
4 (“Plaintiffs”) filed this lawsuit challenging Clark County’s election procedures. Plaintiffs’ claims
6 Proposed Intervenors meet the applicable requirements for intervention as of right and
7 permissive intervention under Rule 24 of the Federal Rules of Civil Procedure. The motion to
8 intervene is timely, submitted the morning after the complaint was filed. An unknown number of
9 Democratic voters could be disenfranchised (and affiliated candidates harmed) if Plaintiffs are
10 able to delay Nevada’s counting process and to challenge voters’ signatures based on no apparent
12 Intervenors share with the current Defendants an interest in the smooth and orderly
14 contests—have interests that the current Defendants do not adequately represent. As required by
15 Federal Rule of Civil Procedure 24(c), this Motion is accompanied by a Proposed Answer, which
17 Counsel for Proposed Intervenors contacted the counsel for Defendants to ascertain their
18 position on this motion, and both Defendants assent to intervention. As of the time of this filing,
19 Plaintiffs’ counsel has not provided their position to Proposed Intervenors’ intervention.
20 Proposed Intervenors also respectfully request that this Court enter an expedited briefing
21 schedule on this Motion, or, in the alternative, consider it at an expedited hearing held remotely.
22 ARGUMENT
23
I. Proposed Intervenors satisfy Rule 24(a)’s requirements for intervention as a matter
24 of right.
25 Proposed Intervenors qualify for intervention as of right. Intervention as of right must be
26 granted when (1) the motion to intervene is timely, (2) the Proposed Intervenors possess an
27 “significantly protectable” interest in the subject matter of the action; (3) denial of the motion to
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1 intervene would “impair or impede” the Proposed Intervenors’ ability to protect their interests,
2 and (4) the proposed intervenor’s interests are not adequately represented by the existing parties
3 to the lawsuit. United States v. Aerojet Gen. Corp., 606 F.3d 1142, 1148 (9th Cir. 2010) (quoting
4 California ex rel. Lockyer v. United States, 450 F.3d 436, 440 (9th Cir. 2006)). “Rule 24
6 Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003); accord Venetian Casino Resort, LLC v. Enwave
7 Las Vegas, LLC, No. 2:19-CV-1197 JCM (DJA), 2020 WL 1539691, at *3 (D. Nev. Jan. 7,
9 (quoting Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006))); see also W. Expl. LLC v. U.S.
10 Dep’t of Interior, No. 3:15-cv-00491-MMD-VPC, 2016 WL 355122, at *2 (D. Nev. Jan. 28,
11 2016) (noting Rule 24’s liberal construction and “focus[] on practical considerations rather than
12 technical distinctions”). Proposed Intervenors satisfy each of the four requirements of Rule 24(a).
15 filed; Defendants have not yet made an appearance, and no substantive activity has taken place in
16 the case. There has therefore been no delay, and no possible risk of prejudice to the other parties.
17 See League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997); see also
18 Nevada, 2019 WL 718825, at *2 (granting motion to intervene filed several weeks after action
19 commenced); W. Expl., 2016 WL 355122, at *2 (granting motion to intervene filed nearly two
24 this litigation. Proposed Intervenors are dedicated to supporting the election of Democratic
25 candidates across Nevada. They seek to intervene as defendants in this matter to prevent
26 Plaintiffs’ requested intrusion on the ballot processing procedures and to protect the rights of
27 their members and affiliated candidates across Nevada. Specifically, Plaintiffs’ eleventh-hour
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1 request to upend Clark County’s procedures for counting and verifying mail ballots carries with
2 it the prospect of disenfranchising Proposed Intervenors’ members who have submitted ballots
3 by mail. See e.g., Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 189 n.7 (2008) (agreeing
4 with the unanimous view of the Seventh Circuit that the Indiana Democratic Party had standing
5 to challenge a voter identification law that risked disenfranchising its members). And the
6 threatened challenge to the verification of these ballots risks harming the electoral prospects of
7 Democratic candidates up and down the ballot. See Owen v. Mulligan, 640 F.2d 1130, 1132
8 (holding that “the potential loss of an election” inflicts injury on political party).
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C. Denial of the motion to intervene will impair Proposed Intervenors’ ability to
10 protect their interests.
11 Third, disposition “of the action may as a practical matter impair or impede” Proposed
12 Intervenors’ ability to protect their interests. Fed. R. Civ. P. 24(a)(2). Where, as here, a proposed
13 intervenor has a protectable interest in the outcome of the litigation, courts generally have “little
14 difficulty concluding” that their interests will be impaired. California ex rel. Lockyer v. United
15 States, 450 F.3d 436, 442 (9th Cir. 2006); see also Brody, 957 F.2d at 1123 (noting that if the
16 intervenor “can show that they possess a legal interest in this action, then it naturally follows that
18 There can be no doubt that disposition of this matter has the potential to impair the
19 Proposed Intervenors’ ability to protect their interests. Courts have routinely concluded that
20 interference with a political party’s electoral prospects constitutes a direct injury that satisfies
21 Article III standing, which goes beyond the requirement needed for intervention under Rule
22 24(a)(2) in this case. See, e.g., Owen, 640 F.2d at 1132 (holding that “the potential loss of an
23 election” is sufficient injury to confer Article III standing). Indeed, Proposed Intervenors have
24 intervened in several voting cases this cycle on this very theory, including twice in this very
25 court. See Donald J. Trump for President, Inc. v. Cegavske, No. 220CV1445JCMVCF, 2020 WL
26 5229116, at *1 (D. Nev. Aug. 21, 2020) (granting intervention to DNC, DCCC, and NSDP in
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1 WGC, 2020 WL 2042365, at *2 (D. Nev. Apr. 28, 2020) (granting intervention as of right to
2 DNC, DCCC, and NSDP where “Plaintiffs’ success on their claims would disrupt the
3 organizational intervenors’ efforts to promote the franchise and ensure the election of
5 3074351, at *3 (E.D. Cal. June 10, 2020) (granting intervention of right to DCCC); Republican
6 Nat’l Comm. v. Newsom, No. 2:20-cv-01055-MCE-CKD, slip op. at 5 (E.D. Cal. June 10, 2020),
7 ECF No. 38 (same). There is no reason for the Court to depart from that precedent here.
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D. Proposed Intervenors’ interests are not adequately represented by
10 Defendants.
11 Fourth, Proposed Intervenors cannot rely on the parties in this case to adequately
12 represent their interests. “Courts consider three factors when assessing whether a present party
14 (1) whether the interest of a present party is such that it will undoubtedly make all
of a proposed intervenor’s arguments; (2) whether the present party is capable and
15 willing to make such arguments; and (3) whether a proposed intervenor would
offer any necessary elements to the proceeding that other parties would neglect.
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17 W. Expl., 2016 WL 355122, at *3 (quoting Arakaki, 324 F.3d at 1086). “[T]he requirement of
18 inadequacy of representation is satisfied if the applicant shows that representation of its interests
19 ‘may be’ inadequate,” and therefore “the burden of making this showing is minimal.” Id.
20 (quoting Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir. 1983)).
21 Defendants’ interest is defined solely by their statutory duties to conduct elections. But
22 the Proposed Intervenors’ interests are broader: they seek to ensure that as many of their
23 affiliated voters can cast valid ballots as possible and have them counted without improper
25 officials—cannot adequately represent the Proposed Intervenors’ interests. See Issa, 2020 WL
27 executives and their responsibility to properly administer election laws, the [intervenor is]
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1 concerned with ensuring their party members and the voters they represent have the opportunity
2 to vote in the upcoming federal election, advancing their overall electoral prospects, and
3 allocating their limited resources to inform voters about the election procedures.”). Courts have
4 “often concluded that governmental entities do not adequately represent the interests of aspiring
5 intervenors,” Fund for Animals, Inc. v. Norton, 322 F.3d 728, 736 (D.C. Cir. 2003); accord
6 Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 899 (9th Cir. 2011);
7 Associated Gen. Contractors of Am. v. Cal. Dep’t of Transp., No. 09-01622, 2009 WL 5206722,
8 at *2–3 (E.D. Cal. Dec. 23, 2009) (granting intervention where defendant state agency’s “main
9 interest is ensuring safe public roads and highways” and agency “is not charged by law with
11 in cases regarding the right to vote, see Paher, 2020 WL 2042365, at *3 (granting intervention as
12 of right where Proposed Intervenors “may present arguments about the need to safeguard
13 Nevada[ns’] right to vote that are distinct from [state defendants’] arguments”).
14 Accordingly, Proposed Intervenors have satisfied the four requirements for intervention
15 as of right under Rule 24(a)(2). See Paher, 2020 WL 2042365, at *3 (granting DNC, DCCC, and
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II. Alternatively, Proposed Intervenors satisfy Rule 24(b)’s requirements for
18 permissive intervention.
19 Even if this Court were to find Proposed Intervenors ineligible for intervention as of
20 right, they readily satisfy the requirements for permissive intervention under Rule 24(b), which
21 provides the Court with broad discretion “to allow anyone to intervene who submits a timely
22 motion and ‘has a claim or defense that shares with the main action a common question of law or
23 fact.’” Nevada, 2019 WL 718825, at *2 (quoting Fed. R. Civ. P. 24(b)(1)(B)).3 “Because a court
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Although permissive intervention also generally requires that “the court has an independent
26 basis for jurisdiction,” that finding “is unnecessary where, as here, in a federal question case the
proposed intervener raises no new claims.” Nevada, 2019 WL 718825, at *2 (quoting Donnelly
27 v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998)).
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1 has discretion in deciding whether to permit intervention, it should consider whether intervention
2 will cause undue delay or prejudice to the original parties, whether the applicant’s interests are
3 adequately represented by the existing parties, and whether judicial economy favors
4 intervention.” Id. (citing Venegas v. Skaggs, 867 F.2d 527, 530–31 (9th Cir. 1989)).
5 For the reasons discussed in Part I supra, Proposed Intervenors’ motion is timely, and
6 they cannot rely on the Defendants to adequately protect their interests. Proposed Intervenors
7 also have defenses to Plaintiffs’ claims that share common questions of law and fact—for
9 Significantly, intervention will result in neither prejudice nor undue delay. Proposed
10 Intervenors have an undeniable interest in a swift resolution of this action to ensure that Nevada
11 can continue its routine ballot verification and tabulation processes without undue interference.
12 Indeed, Proposed Intervenors contend that this action itself threatens to cause harmful delays that
13 could stymie Nevada’s efforts to tabulate mail ballots. Given the legal and factual shortcomings
14 of Plaintiffs’ claims, Proposed Intervenors are confident that their intervention in this case will
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1 CONCLUSION
2 For the reasons stated above, Proposed Intervenors respectfully request that the Court
3 grant their motion to intervene as a matter of right under Rule 24(a)(2) or, in the alternative,
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WOLF, RIFKIN, SHAPIRO,
7 SCHULMAN & RABKIN, LLP
8 By: /s/ Bradley S. Schrager
Bradley S. Schrager, Esq., SBN 10217
9 Daniel Bravo, Esq., SBN 13078
3556 E. Russell Road, Second Floor
10 Las Vegas, Nevada 89120
11 Marc E. Elias*
John Devaney*
12
Perkins Coie LLP
13 700 Thirteenth Street NW, Suite 600
Washington, D.C. 20005-3960
14 Telephone: (202) 654-6200
Facsimile: (202) 654-6211
15 [email protected]
16 [email protected]
17 Abha Khanna*
Perkins Coie LLP
18 1201 Third Avenue, Suite 4900
Seattle, Washington 98101-3099
19 Tel: (206) 359-8000
[email protected]
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Case 2:20-cv-02046-APG-DJA Document 10 Filed 11/06/20 Page 10 of 10
1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 6th of November, 2020 a true and correct copy of MOTION
3 TO INTERVENE AS DEFENDANTS BY DNC AND NEVADA STATE DEMOCRATIC
4 PARTY was served via the United States District Court’s CM/ECF system on all parties or
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