National Council of La Raza et al v. Miller et al, No. 3:2012cv00316 - Document 70 (D. Nev. 2012)

Court Description: ORDER granting 22 Motion to Dismiss; denying as moot 24 Motion for Preliminary Injunction. The Complaint 1 is DISMISSED with prejudice. Signed by Chief Judge Robert C. Jones on 12/19/12. (Copies have been distributed pursuant to the NEF - JC)

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National Council of La Raza et al v. Miller et al Doc. 70 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 NATIONAL COUNCIL OF LA RAZA, LAS VEGAS BRANCH OF THE NAACP (BRANCH 1111), and RENO-SPARKS BRANCH OF THE NAACP (BRANCH 1112) 3:12-cv-316-RCJ-VP 9 Plaintiffs, 10 vs. 11 ROSS MILLER, in his official capacity as Secretary of State of the State of Nevada; and MICHAEL WILLDEN, in his official capacity as Directory of the Department of Health & Human Services of the State of Nevada. 12 13 14 ORDER Defendants. 15 Before the Court are motions for a preliminary injunction and to dismiss for failure to 16 state claim. Plaintiffs sent a statutorily mandated notice letter to Defendant to inform him of 17 Nevada’s alleged violations of a federal voter registration statute, and then, per statutory 18 provision, brought this action 31 days later. Plaintiffs seek a preliminary injunction to require 19 Defendants to immediately implement provisions required under the statute. Defendants move to 20 dismiss, asserting Plaintiffs failed to provide proper statutory notice. The issue is whether the 21 clock for notice starts on the date of the alleged violations or on the date of the notice letter. 22 Because Plaintiffs failed to provide proper statutory notice before filing the Complaint, 23 they lack statutory standing, and dismissal is proper under Rule 12(b)(6) for failure to state a 24 claim. However, Plaintiffs assert that since the Complaint was filed within 30 days of the 25 Dockets.Justia.com 1 election, and they allege past and ongoing violations, they are now within the 30-day statutory 2 exception to mandatory notice. The Court disagrees and rules that Plaintiffs’ tactic of delaying 3 the notice letter and then filing the Complaint within 30 days of the election cannot circumvent 4 the statutory notice requirement. Additionally, although neither party addressed Article III 5 standing, the Court, sua sponte, finds Plaintiffs lack Article III standing to bring this action. 6 Finally, dismissal renders Plaintiffs’ motion for a preliminary injunction moot. 7 I. 8 9 FACTS AND PROCEDURAL HISTORY This case is about Nevada’s alleged past and ongoing violations of Section 7 of the National Voter Registration Act of 1993 (“NVRA”). See National Voter Registration Act 10 (NVRA) of 1993, 42 U.S.C. § 1973gg (1993). The right to vote has long been recognized as 11 fundamental in order to protect the other rights guaranteed in our country. As noted by the 12 Supreme Court in Wesbury v. Sanders, 376 U.S. 1, 17 (1964), “Other rights, even the most 13 basic, are illusory if the right to vote is undermined.” The Congress enacted the NVRA because 14 “[t]he right of the citizens of the United States to vote is a fundamental right” and 15 “discriminatory and unfair registration . . . procedures can have a . . . damaging effect on voter 16 participation in elections for federal office.” 42 U.S.C. § 1973gg(a). The NVRA includes 17 provisions aimed at reducing the burdens involved in registering to vote. See id at § 1973gg-5. 18 Primarily, Section 7 of the NVRA “[establishes] procedures that will increase the number of 19 eligible citizens who register to vote in elections for federal office.” Id. at § 1973gg(b)(1). 20 Section 7 of the NVRA designates all offices in the state that provide public assistance as voter 21 registration agencies. Id. at § 1973gg-5(a)(2)(A). Additionally, public assistance offices must 22 distribute voter registration applications and provide voter registration services with each 23 application, renewal, or change of address, unless the applicant, in writing, declines to register to 24 vote. Id. at 1973gg-5(6)(a)(ii). This provision, and Plaintiffs’ allegations of the state of Nevada’s 25 Page 2 of 31 1 2 noncompliance with it, is the crux of the present action. Plaintiffs National Council of La Raza (“NCLR”) and the Las Vegas and Reno branches 3 of the National Association for the Advancement of Colored People (individually “Las Vegas 4 NAACP,” “Reno Sparks NAACP,” and collectively “NAACP”) have named as Defendants Ross 5 Miller in his official capacity as Secretary of State of the State of Nevada and Ross Willden in his 6 official capacity as Director of the Department of Health and Human Services of the State of 7 Nevada). (Complaint, ECF Nos.1 at 1–2). 8 On May 10, 2012, Plaintiffs sent Miller a written notice (the “Notice Letter”) that Nevada 9 was not in compliance with the NVRA. (Id. at 2–4). In the Notice Letter, Plaintiffs claim to have 10 discovered violations through field investigations conducted in December of 2011. (Id. at 2). 11 The investigations consisted of visiting Nevada’s public assistance offices in three counties and 12 interviewing their clients and staff regarding the extent of assistance offered with voter 13 registration. (Id. at 2–4). The Notice Letter claims the December investigation revealed multiple 14 incidents of individuals not being offered voter registration applications. (Id.). Additionally, the 15 letter alleges the state has failed to comply with the statute for years, evidenced by declining 16 voter registration statistics reported from the state’s public assistance offices. (Id.). The letter 17 informed Miller if he did not provide a comprehensive plan of compliance with the NVRA 18 within 20 days, Plaintiffs would have no alternative but to initiate litigation per the NVRA notice 19 provision. (Id. at 4). 20 On May 22, 2012, a representative from the Nevada Secretary of State’s Elections 21 Division contacted Plaintiffs seeking an extension of time to investigate and respond to the 22 notice letter. (Id. at 17). Plaintiffs responded in a May 24 e-mail, proposing to allow the delay if 23 Defendants would, among other things, provide current organizational charts for the various 24 public assistance offices, including management evaluation forms for those 25 Page 3 of 31 1 Departments/Divisions. (Id.). On June 5, 2012, the Election Division responded indicating it 2 would not comply with Plaintiffs’ e-mail proposal. (Id.). On June 11, 2012, Plaintiffs filed the 3 Complaint. 4 The Complaint alleges Nevada has disenfranchised thousands of low-income citizens due 5 to “[f]lawed practices and policies, insufficient oversight and inadequate enforcement” of the 6 NVRA. (Id. at 3–4). In support of Plaintiffs’ allegations, the Complaint references the stated 7 violations from the December field investigation. (Id. at 4–5, 15–16). Plaintiffs claim they have 8 suffered harm due to “expending additional resources, including staff and volunteer time, on 9 efforts to assist individuals with voter registration.” (Id. at 17–21). Plaintiffs ask the Court to 10 declare that Defendants have violated the NVRA by failing to provide the required voter 11 registration materials and services through Nevada’s public assistance offices. (Id. at 21–23). 12 Plaintiffs ask the Court to enjoin Defendants from failing to develop, implement, and enforce 13 practices and policies to ensure compliance with the NVRA. (Id. at 23). Further, Plaintiffs 14 request the Court approve and enforce a plan of reporting and monitoring. (Id.) 15 On July 3, 2012, Defendants moved to dismiss the Complaint, arguing that Plaintiffs’ 16 failure to comply with the notice requirement deprives them of statutory standing. Plaintiffs’ 17 response asserts continuous and ongoing violations, arguing the Notice Letter, as well as the 18 Complaint are compliant with the time requirements of the notice provision. 19 On July 6, 2012, Plaintiffs filed a motion for a preliminary injunction requiring 20 Defendants to implement the mandatory provisions of the NVRA and to take immediate remedial 21 measures to correct the alleged harm caused by Defendants’ violations. To support their 22 allegations of ongoing violations, Plaintiffs provided recent declarations by three Nevada public 23 assistance clients who claim they were not provided the opportunity to register to vote while 24 renewing their benefits—a violation of the NVRA. (Confer Decl., June 19, 2012, ECF Nos. 25-2; 25 Page 4 of 31 1 Hulbert Decl., June 20, 2012, ECF No. 25-3, Phillips Decl., June 19, 2012, ECF No. 25-4). 2 Defendants responded with sworn affidavits by state employees attesting they researched the 3 state records of the three declarants and discovered documentation conflicting with the 4 declarants’ stated claims. (Walker Aff., July 20, 2012, ECF Nos. 32-7; Allard Aff., July 23, 2012, 5 ECF No. 32-6). 6 II. LEGAL STANDARDS 7 A. 8 Federal courts are courts of limited jurisdiction, possessing only those powers granted by 9 Rule 12(b)(1) the Constitution and statute. See United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008) 10 (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). The party 11 asserting federal jurisdiction bears the burden of overcoming the presumption against it. 12 Kokkonen, 511 U.S. at 377. Rule 12(b)(1) provides an affirmative defense for lack of subject 13 matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Additionally, a court may raise the question of 14 subject matter jurisdiction sua sponte at any time during an action. United States v. Moreno- 15 Morillo, 334 F.3d 819, 830 (9th Cir. 2003). Regardless of who raises the issue, “when a federal 16 court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in 17 its entirety.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (citing 16 J. Moore et al., 18 Moore’s Federal Practice § 106.66[1], pp. 106-88 to 106-89 (3d ed. 2005)). 19 B. 20 Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action Rule 12(b)(6) 21 that fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to 22 dismiss under Rule 12(b)(6) tests the complaint’s sufficiency. See North Star Int’l. v. Arizona 23 Corp. Comm’n., 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under 24 Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does 25 Page 5 of 31 1 not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. 2 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint 3 is sufficient to state a claim, the court will take all material allegations as true and construe them 4 in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th 5 Cir. 1986). The court, however, is not required to accept as true allegations that are merely 6 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden 7 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 8 9 “Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion . . . However, material which is properly submitted as part of the 10 complaint may be considered on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner 11 & Co., 896 F.2d 1542, 1555 (9th Cir. 1990). Similarly, “documents whose contents are alleged 12 in a complaint and whose authenticity no party questions, but which are not physically attached 13 to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without 14 converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 15 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule of Evidence 201, a court may take 16 judicial notice of “matters of public record.” Mack v. South Bay Beer Distrib., 798 F.2d 1279, 17 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, 18 the motion to dismiss is converted into a motion for summary judgment. See Arpin v. Santa 19 Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001). 20 If the court grants a motion to dismiss a complaint, it must then decide whether to grant 21 leave to amend. The court should “freely give” leave to amend when there is no “undue delay, 22 bad faith[, or] dilatory motive on the part of the movant . . . undue prejudice to the opposing 23 party by virtue of . . . the amendment, [or] futility of the amendment . . . .” FED . R. CIV . P. 15(a); 24 Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is 25 Page 6 of 31 1 clear that the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. Yellow 2 Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 3 C. 4 To bring an action under a federal statute, a plaintiff must not only have Article III Statutory Standing 5 standing, but also statutory standing. See Leeson v. Transamerica Disability Income Plan, 671 6 F.3d 969, 976 (9th Cir. 2012); see also Vaughn v. Bay Environmental Mgmt. Inc., 567 F.3d 1051, 7 1024 (9th Cir. 2009). A Rule 12(b)(6) statutory standing dismissal for failure to state a claim is 8 proper when there are “non-jurisdictional limitations on causes of actions” to which the plaintiff 9 has not complied (such as a notice requirement). See Leeson at 976. 10 D. 11 To satisfy Article III’s case or controversy requirement, the litigant must establish: (1) 12 that he has suffered an injury-in-fact; (2) that the injury is traceable to the challenged action of 13 the defendant; and (3) that the injury can be remedied by a favorable decision. Clark v. City of 14 Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001). Importantly, a plaintiff “must show, first and 15 foremost, an invasion of a legally protected interest that is concrete and particularized and actual 16 or imminent.” Arizonan’s for Official English v. Arizona, 520 U.S. 43, 64 (1997). If a person 17 lacks Article III standing, the case is subject to dismissal for lack of subject matter jurisdiction 18 pursuant to Rule 12(b)(1). See Maya v. Centex Corp., 658 F. 3d 1060, 1067 (9th Cir. 2011). Article III Standing 19 E. 20 A preliminary injunction is an extraordinary remedy that should not be granted unless the 21 movant can clearly show: “1) he is likely to succeed on the merits of such a claim; 2) he is likely 22 to suffer irreparable harm in the absence of preliminary relief; 3) the balance of equities tips in 23 his favor; and 4) that an injunction is in the public interest.” Winter v. NRDC, Inc., 555 U.S. 7, 24 20 (2008). 25 Preliminary Injunctive Relief Page 7 of 31 1 2 III. ANALYSIS Section 7 of the NVRA was legislated to facilitate voter registration for traditionally 3 under-represented constituents. See 42 U.S.C. § 1973gg(a). The NVRA provides a means for an 4 aggrieved person to bring suit when a violation of the statute occurs. Id. at § 1973gg-9(b). Here, 5 Plaintiffs bring such an action and ask the Court for a preliminary injunction claiming irreparable 6 harm in its absence. Defendants ask the Court to dismiss for lack of statutory standing, claiming 7 Plaintiffs did not provide proper notice before filing the Complaint. The Court, sua sponte, also 8 analyzes Plaintiffs’ Article III standing. 9 10 A. Motion to Dismiss The NVRA provides for a private cause of action but also requires written notice be given 11 before a lawsuit is initiated. Id. at § 1973gg-9(b). Defendants ask the Court to dismiss due to 12 Plaintiffs’ failure to provide proper notice as required under the NVRA. Generally, a 90-day 13 notice is required to allow the state to cure the violation(s). Id. at § 1973 gg-9(b). If the violation 14 occurs more than 30, but less than120 days before an election, only a 20-day notice is required. 15 Id. However, if the violation is within 30 days of an election, no notice is required prior to 16 commencing litigation. Id. Thus, violations occurring more than 120 days before a federal 17 election require a written notice and an allowance of 90 days to remedy the problem(s). See id. 18 Plaintiffs’ notice letter dated May 10, 2012, references a field investigation conducted in 19 December 2011. (Notice Letter, ECF Nos. 1-1 at 2). “[T]he results of our most recent field 20 investigations conducted in December 2011 make clear that Nevada’s public assistance offices 21 still have not achieved compliance with their obligations under the NVRA.” (Id. (emphasis 22 added)). It further outlines the specific findings of violations from the field investigation at 23 various offices within the state. (Id. at 2–3). All of the alleged violations were from the same 24 December 2011 field investigation. (Id.). The letter clearly states that it is a notice letter pursuant 25 Page 8 of 31 1 2 to 42 U.S.C. § 1973gg-9(b) and provides a 20-day period to take corrective action. (Id. at 3). Defendants ask the Court to dismiss for Plaintiffs’ failure to provide the required 90-day 3 notice under NVRA’s mandatory notice provision. Since Plaintiffs only provided a 20-day 4 notice to correct the violations prior to filing suit, and then filed the Complaint 31days later, 5 Defendants contend Plaintiffs have not complied with the statute and thus lack standing to bring 6 an action. Defendants argue that because the alleged violations identified in the field 7 investigations happened in December 2011, the violations occurred more than six months prior 8 to the June 12, 2012 primary elections, which is outside the 120-day period before a federal 9 election. Specifically, they argue, “[n]othing in the letter or the complaint identifies any violation 10 11 that occurred later than December 2011.” (Mot. Dismiss, ECF No. 22 at 5). Plaintiffs maintain the violations of Section 7 are ongoing and continuous. Plaintiffs 12 argue they “[a]re not required to identify separate incidents that violate the NVRA, only to give 13 notice of the violations sufficient for Defendants to correct them.” (Resp. Mot. Dismiss, ECF No. 14 30 at 13). Plaintiffs ague: 15 16 17 18 Under Defendants’ theory, the only ‘violations’ that one could insert in a valid notice letter would be violations that arise in specific transactions, as Defendants discount or ignore all other violations. If that were the case, states could escape litigation simply by remedying the violations that occurred in those specific transactions, hardly advancing the NVRA’s stated goal of promoting voter registration. (Id at n. 8). 19 Plaintiffs’ reasoning fails to embrace the plain meaning and intent of the notice statute. It is this 20 Court’s reading of the provision that identifying specific violations of the NVRA and the harm 21 that arises from them is the purpose of providing notice to the state so that it can remedy the 22 harm to the person(s) through corrective measures. See § 1973gg-9(b). Nevertheless, if 23 Plaintiffs’ notice were proper under the statutory meaning, the foregoing discussion would be 24 25 Page 9 of 31 1 immaterial to standing. A reading of the notice provision reveals some key words which provide 2 clarity regarding the issue. 3 Appropriate analysis of questions of statutory interpretation begins with the plain 4 language of the statute. Jimenez v. Quarterman, 555 U.S. 113, 118 (2009). “It is well 5 established that when the statutory language is plain, the court must enforce it according to its 6 terms.” Id. Courts must also fit all parts of a statute “into an harmonious whole,” if possible. 7 Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). “It is a 8 fundamental canon of statutory construction that the words of a statute must be read in their 9 context and with a view to their place in the overall statutory scheme.” Davis v. Mich. Dept. of 10 Treas., 489 U.S. 803, 809 (1989). 11 The statutory notice provision follows: 12 (b) Private right of action. (1) A person who is aggrieved by a violation of this subchapter may provide written notice of the violation to the chief election official of the State involved. (2) If the violation is not corrected within 90 days after the receipt of a notice under paragraph (1), or within 20 days after receipt of the notice if the violation occurred within 120 days before the date of an election for Federal office, the aggrieved person may bring a civil action in an appropriate district court for declaratory or injunctive relief with respect to the violation. (3) If the violation occurred within 30 days before the date of an election for Federal office, the aggrieved person need not provide notice to the chief election official of the State under paragraph (1) before bringing a civil action under paragraph (2). (Bolded for emphasis) 13 14 15 16 17 18 42 U.S.C. § 1973gg-9(b) (emphases added). 19 The notice provision has two broad purposes. First, It provides a cause of action for 20 persons injured by a state’s violation of the NVRA. See id. Thus, a person can bring an action in 21 federal court if they can satisfy Article III standing requirements and show they have been injured 22 by the state’s violation of the NVRA. Id. Second, it spells out precisely when and how much 23 notice must be given before bringing an action. Id. In all alleged violations, except those 30 days 24 25 Page 10 of 31 1 prior to a federal election, the notice statute provides specific time parameters for the state to 2 investigate and cure any alleged violation before facing litigation. Id. Plaintiffs’ contention that 3 the notice provision is not to provide notice of specific violations so the states can remedy those 4 violations and escape litigation appears contrary to the plain language above; the language clearly 5 outlines exactly that purpose: to correct the violation and avoid litigation. See id. Litigation is 6 costly to all parties. Arguably, the notice provision was included to not only provide standing to 7 sue in federal court, but also to deter litigation by forcing aggrieved parties to notify the state in 8 an attempt to correct the problem(s) outside the courts. See id. When followed, it saves time and 9 resources of extensive, and often unnecessary, litigation. However, if the properly noticed state 10 has not remedied the violation(s), the statute allows the aggrieved party to plead for injunctive 11 relief in court. See id. 12 In interpreting the statute, the first issue to address is whether the notice is required or 13 optional. Although Plaintiffs have not contested whether notice is required, the language could 14 be misleading and therefore should be addressed. The use of the word may instead of must or 15 shall in paragraph (1), while referring to the written notice, could lead one to presume the notice 16 is not mandatory. See id. However, when the word is read in its context and with a view to its 17 place in the overall statutory scheme (see Davis, 489 U.S. at 809), it is understood and 18 acknowledged that written notice is mandatory. See Nat’l Coalition for Students with Disabilities 19 Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 286 (4th Cir. 1998); see also Broyles v. Texas, 20 618 F. Supp. 2d 661, 691–92 (S.D. Tex. 2009). The word may refers to when a violation occurs 21 within 30 days of a federal election; then, notice may be given, but none is required. Allen, 152 22 F.3d at 286. Although the Ninth Circuit has not addressed the NVRA’s notice requirement, other 23 Circuits, as noted above, have. Id. This Court is in agreement with the Fifth Circuit’s reading in 24 Broyles v. Texas. There, the court disagreed with the plaintiff who argued that notice under the 25 Page 11 of 31 1 statute was discretionary because “a person who is aggrieved by a violation of this subchapter 2 may provide notice . . . .” Broyles, 618 F. Supp. 2d at 691. The court stated in all other instances 3 (outside the 30-day window of an election) it is required to provide a notice letter prior to 4 commencing litigation. Id at 692. The court explained that “[i]f notice was [sic] optional, the 90- 5 day cure period would be superfluous.” Id. This Court agrees with this district’s finding. A look 6 into the statute makes it clear, “[i]f the violation occurred within 30 days before the date of an 7 election for federal office, the aggrieved person need not provide notice to the chief election 8 official of the state.” § 1973gg–9(b)(3) (emphasis added). That the aggrieved person need not 9 provide notice before filing suit under these conditions evidences that notice is otherwise 10 mandatory. See Broyles, 618 F. Supp 2d at 692. 11 The next issue to determine is whether the notice letter was proper and followed NVRA’s 12 notice requirements. Miller received the notice letter dated May 10, 2012 alleging Nevada’s 13 public assistance offices were still in violation of the NVRA. (Notice Letter, ECF No. 1-1 at 2). 14 Here, the adverb still refers to the time between the alleged noncompliance in 2008 and the 15 December 2011 investigation. (Id.). Plaintiffs assert the letter notifies Defendants of ongoing 16 violations, as referenced by the December investigation. Following is an exert from the May 10, 17 2012 notice letter: 18 As you know, your office was first contacted about these issues in 2008, when DEMOS, one of the undersigned organizations, advised your office of its findings concerning Nevada’s noncompliance with the public agency requirements of the NVRA. We very much appreciate the subsequent discussions your office has had with DEMOS in an effort to improve Nevada’s compliance, but unfortunately the results of our most recent field investigations conducted in December 2011 make clear that Nevada’s public assistance offices still have not achieved compliance with their obligations. 19 20 21 22 (Id.). 23 Defendants correctly argue the purpose of the notice letter is to identify specific 24 violations and provide the state an opportunity to correct them—in fact, that is precisely what the 25 Page 12 of 31 1 notice provision is in place to do. It states “[i]f the violation is not corrected (within the 2 specified notice periods) . . . the aggrieved person may bring a civil action . . . for declaratory or 3 injunctive relief with respect to the violation.” § 1973gg-9(b)(2) (emphases added). Defendants 4 further argue that Plaintiffs did not provide proper notice in relation to the time period between 5 the violations discovered in December and the upcoming federal elections. Plaintiffs maintain 6 the violations were ongoing at the time of the Notice Letter, and therefore notice was proper in 7 relation to the time between the Notice Letter and the election. If Plaintiffs would have sent 8 notice to Miller immediately after the December investigation, then Plaintiffs could have 9 reasonably argued that the violations were still ongoing as of the notice. 10 The violations of which Plaintiffs notified Miller were alleged to have occurred in 11 December of 2011, yet the notice was not provided until May 10, 2012—five months after the 12 investigation. The lack of urgency Plaintiffs demonstrated in providing notice to Miller indicates 13 an ulterior motive. Otherwise, why not quickly provide notice to rectify the alleged violations? 14 The record is void of any explanation by Plaintiffs. Yet, even with so much time having elapsed 15 sinse the initial investigation, a follow–up inquiry of even one person to show any continuous 16 and ongoing violations would have validated Plaintiffs’ Notice Letter. Plaintiffs argue that they 17 have “unambiguously indicated in both the Notice Letter and the Complaint, that NVRA 18 violations were ongoing and were occurring well within the 120-day pre-election window (and, 19 the Complaint was within the 30 day window of the June 12 primary.)” (Resp. Mot. Dismiss, at 20 3(emphasis added)). Plaintiffs now assert that since the Complaint alleges continuous and 21 ongoing violations, and it was filed within the 30-day window of the elections, they are within 22 their statutory rights to bring the action—even without notice. 23 24 25 The allegations in both the Notice Letter and the Complaint that Nevada’s public assistance offices still have not achieved compliance with the NVRA, when six months had Page 13 of 31 1 elapsed from the time of Plaintiffs’ December field investigations to the filing of this Complaint, 2 undermines the purpose of the NVRA’s notice requirement. Further, to bring an action claiming 3 past and ongoing violations, yet failing to provide evidence of ongoing violations other than a six 4 month-old investigation hardly withstands the Supreme Court’s requirement to avoid a dismissal 5 for failure to state a claim (wherein the non moving party must show “enough facts to state a 6 claim to relief that is plausible on its face.”) See Twombly, 550 U.S. 544, at 570. Here, where the 7 relief sought is compliance, without showing more recent facts of Defendants’ noncompliance 8 than a five month-old investigation reduces the statement of continuous and ongoing violations 9 from a factual allegation (to be viewed in a light most favorable to the nonmoving party) to a 10 11 conclusory assertion (which will not withstand the requirements in Twombly ). See id. The notice provision uses the word violation no less than six times in its three short 12 paragraphs. See § 1973gg-9(b). The statute specifically states “[i]f the violation occurred within 13 . . . ” certain periods of time before an election, then a notice letter must be sent. Id. (emphasis 14 added). It states “[if] the violation is not corrected within . . . ” the specified time, then the 15 aggrieved person may bring an action for “declaratory or injunctive relief with respect to the 16 violation.” Id. (emphases added). Because the NVRA’s notice provision specifically outlines the 17 required timeliness of the notice, both in respect to an election and to the amount of notice 18 required, it only follows that the aggrieved person must give notice of the specific violation with 19 the date of its occurrence, and all provisional notice requirements then relate to that violation. 20 See id. However, because Plaintiffs waited five months before sending the Notice Letter, they 21 left the door open to speculation as to whether the December violations are still ongoing. 22 Plaintiffs would ask this Court to rule that so long as an aggrieved person alleges in the notice 23 letter that violations are ongoing, the date of the notice letter controls for notice purposes. In this 24 case that would include even if the violations of which the person alleges any factual knowledge 25 Page 14 of 31 1 about occurred months earlier. The notion of such a rule is illogical and it contradicts the plain 2 language of the statute—which is concerned with the dates of the violations in respect to the 3 election dates, not the dates the notice letters were dispatched. To enforce the statute more 4 broadly by allowing the aggrieved party to claim “continuous and ongoing” violations, when the 5 only actual alleged violations occurred months earlier, undermines the very time–sensitive 6 purpose of the NVRA’s notice provision. Therefore, the date of the alleged violations contained 7 in the notice letter in relation to the next federal election date are the only relevant dates to 8 consider in determining the adequacy of proper notice under the NVRA. See id. For these 9 reasons, the Court finds the Plaintiffs failed to follow the statutory notice provisions of the 10 11 NVRA. A Rule 12(b)(6) Dismissal for failure to state a claim is proper when plaintiff lacks 12 statutory standing and the statutory provision is not clearly jurisdictional. Leeson, 671 F.3d 969 13 at 976-77. Here, the NVRA notice provision is non–jurisdictional. Plaintiffs failed to provide 14 proper notice as required under the NVRA’s notice provision. Therefore, Defendants’ Rule 15 12(b)(6) motion to dismiss for failure to state a claim is proper because plaintiffs do not have 16 statutory standing to bring this action. 17 The next issue, regarding the timing of the Plaintiffs’ action, was previously mentioned 18 but not yet analyzed. Plaintiffs’ filed the Complaint within 30 days of the June 12, 2012 19 primaries, and it contains the single allegation of past and ongoing violations. (Compl., at 2). 20 Yet, in the complaint, the only evidence of violations are in reference to the December 2011 field 21 investigations. ( Id. at 8-16). The ongoing allegations alleged in the Complaint must, by lack of 22 any other reference, be in reference to the December 2011 violations. At the time the Complaint 23 was filed, the referenced field investigations were more than six months old. (Id.). Plaintiffs had 24 not, prior to filing this action, conducted any follow-up investigation. (Id.). They submitted the 25 Page 15 of 31 1 results from the December 2012 investigation and filed a complaint that mirrored the allegations 2 presented in the Notice Letter. (Id.). 3 Here, the issue is whether a complaint that is filed without notice, as provided under the 4 NVRA’s 30-day notice exception, is in compliance with the scope of the statute if the complaint 5 merely asserts “past and ongoing violations,” even though the date of the investigation wherein 6 the violations were discovered falls outside the 30-day pre-election window. The Court rules that 7 a plaintiff fails to comply with the NVRA’s notice provision under such conditions. However, as 8 mentioned above, a follow–up inquiry within the 30-day window that evidences a violation will 9 satisfy the statute. See § 1973gg-(9)(b). The statute does not require a follow–up inquiry, only 10 that the date of the violation be within a certain period of time prior to an election. Yet, a 11 follow–up inquiry that evidences a violation will necessarily restart the clock, thus providing a 12 new date and relevant reference point for determining proper notice. 13 Plaintiffs reiterate that both in the Notice Letter and the Complaint, they allege “Nevada’s 14 ineffectual public assistance voter registration program is the result of years of neglect.” 15 (Compl., at 4; Not. Let., at 3–4). Plaintiffs reference reported data from the Federal Elections 16 Assistance Commission where the state showed 10 years of declining numbers of voters who 17 were registered through the public assistance offices. (Compl., at 14). The number of 18 registrations reached a peak of 39,444 voter registration applications in the reporting period of 19 2001–2002 and thereafter declined to 1,677 in the most recent 2009–2010 reporting period. (Id.). 20 The peak of 39,444 is clearly an outlier in the table provided where the next highest amount of 21 registered voters is 13,200 in the 1995–1996 season, and all the rest of the years are closer to the 22 1,677 low. (Id.). Plaintiffs use this data to conclude that “[t]hese numbers paint a dismal picture 23 of Nevada’s compliance with the NVRA’s public assistance agency registration requirements.” 24 (Id.). The Court disagrees and finds the data could evidence a number of possible underlying 25 Page 16 of 31 1 causes, some of which would have nothing to do with Nevada’s noncompliance with the NVRA. 2 The data alone may be consistent with a violation, but under Twombly more facts are needed to 3 argue the plausibility of Nevada’s alleged violations. See Twombly, In fact, NCLR proclaims in 4 the Complaint that “[a]s a means of improving opportunities for Hispanic Americans, NCLR has 5 been a strong advocate for citizens to participate in the electoral process.” (Compl., at 17). The 6 Complaint continues, “NCLR encourages Hispanic voter registration and participation, 7 particularly among the low–income citizens . . . [thus] NCLR regularly has conducted and 8 continues to conduct voter registration drives in the state of Nevada (including, for example, 9 registering over 21,500 voters in Nevada since 2008.” (Id.). Similarly, the Las Vegas NAACP 10 stated it “organizes and conducts numerous voter registration drives in Nevada (including, for 11 example, conducting approximately four or five major and ten to twelve smaller voter 12 registration drives in Nevada in the last three years.)” (Id. at 19). The Reno–Sparks NAACP 13 stated similar claims as the Las Vegas branch. (Id. at 20). Therefore, it is possible the decline in 14 the number of registrations culminating from Nevada’s public assistance offices over the years is 15 due to Plaintiffs positive efforts in assisting with large numbers of voter registrations. (See id.). 16 The following simple logic supports the Court’s reasoning. The facts show that Plaintiffs are 17 conducting voter registration drives among Nevada’s low–income communities (NCLR 18 registering 21,500 voters since 2008), which, by the registration drive’s very existence, would 19 necessarily reduce the numbers of applicants at the state offices of public assistance. The facts 20 also show that Defendants are providing their clients with applications to register to vote (EAC 21 data validates the same). Therefore, it is likely that the reduction in reported numbers is due to 22 Plaintiffs’ positive efforts rather than Defendants’ alleged failings. Thus, the Court finds 23 Plaintiffs’ assertions of Nevada’s ongoing noncompliance with the NVRA from this evidence are 24 conclusory. 25 Page 17 of 31 1 Moreover, though the Notice Letter and Complaint contain broad assertions of Nevada’s 2 ongoing noncompliance with the NVRA, it wasn’t until Plaintiffs moved the Court for a 3 preliminary injunction that they provided more specific evidence (including names and dates) to 4 support their assertions. (Confer Decl.; Hulbert Decl.; Phillips Decl.). More than a week after the 5 June Complaint was filed, in an attempt to bolster their motion for a preliminary injunction, 6 Plaintiffs hastily scrambled three witnesses to sign a pre-printed declaration to attest the 7 violations were, indeed, continuous and ongoing. (See Id.) These people claimed they were not 8 offered voter registration applications in the public assistance offices in both Las Vegas and 9 Carson City. (Id.). Also attached was a declaration by the person who conducted the December 10 2011 field investigations. (Khan Decl., July 6, 2012, ECF Nos. 25-1). Included in her statement 11 were accounts of two other named public assistance clients who claimed to have checked ‘Yes’ 12 to the voter preference question, but did not receive applications. (Id. at 4–5). One claims to 13 have never received an application and the other claimed the employee told her she would mail 14 her an application at a later date. (Id.). 15 The Defendants, upon reviewing the declarations, investigated internal records of each of 16 the declarants and responded to the Plaintiffs’ motion with sworn affidavits. (Allard Aff., July 17 23, 2012, ECF Nos. 32-6; Walker Aff., July 20, 2012, ECF No. 32-7). In each case, the 18 declarants’ paperwork showed they had actually checked and initialed the “no” box (indicating 19 they would not like to register to vote). (Id.). By so doing, under the NVRA, no voter registration 20 forms are required to be provided to the clients. See § 1973gg-5(6)(A)(ii). 21 The Court finds that Plaintiffs’ tactics of delaying the Notice Letter for five months in 22 order to provide almost no notice (20 days) before commencing litigation, and then, without a 23 single follow-up inquiry, filing this Complaint (claiming ongoing violations in order to be within 24 the 30-day “no notice” exception) violates the purpose of the NVRA’s notice provision; which is 25 Page 18 of 31 1 to provide notice of violations long before election day so the state can investigate and cure them 2 without the delay and expense of litigation. For the aforementioned reasons, the Court rules that 3 Plaintiffs have failed to comply with the notice provision of the NVRA and, thus, Defendants’ 4 motion to dismiss is granted. 5 B. Article III Standing 6 Federal courts are courts of limited jurisdiction, possessing only those powers granted by 7 the Constitution and statute. See United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008) 8 (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). The party 9 asserting federal jurisdiction bears the burden of overcoming the presumption against it. 10 Kokkonen, 511 U.S. at 377. Federal Rule of Civil Procedure 12(b)(1) provides an affirmative 11 defense for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Additionally, a court 12 may raise the question of subject matter jurisdiction sua sponte at any time during an action. 13 United States v. Moreno-Morillo, 334 F.3d 819, 830 (9th Cir. 2003). Regardless of who raises 14 the issue, “when a federal court concludes that it lacks subject-matter jurisdiction, the court must 15 dismiss the complaint in its entirety.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (citing 16 16 J. Moore et al., Moore’s Federal Practice § 106.66[1], pp. 106-88 to 106-89 (3d ed. 2005)). 17 In order to bring an action in federal court, Article III requires there exist a case or 18 controversy. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Thus, the core 19 component of standing is the case or controversy requirement. Id. As defined in Lujan, the 20 irreducible constitutional minimum of standing contains three elements: (1) that plaintiff has 21 suffered an injury–in–fact; (2) that there is a causal connection wherein the injury is traceable to 22 the challenged action of the defendant; (3) that it’s likely the injury can be remedied by a 23 favorable decision. Id. Here, while all three Plaintiffs claim to have suffered harm from 24 Nevada’s failure to comply with the NVRA, the facts show Plaintiffs have neither sustained harm 25 Page 19 of 31 1 sufficient for individual standing, nor obtained associational standing on behalf of a harmed 2 member of their organizations. Plaintiffs argue they have suffered injury by expending additional 3 resources, including staff and volunteer time, on efforts to assist individuals with voter 4 registration. (Compl., at 17–20). The NAACP additionally claims their members have been 5 harmed by not being offered the opportunity to register to vote through Nevada’s public 6 assistance offices. (Id., at 18–21). 7 Though this is a case of first impression in the Ninth Circuit, there is a case directly on 8 point from the Fifth Circuit. In that case, the Association of Community Organizations for 9 Reform Now (“ACORN”) sued a Louisiana official for roughly the same violations of the 10 NVRA. See Ass’n of Cmty. Orgs for Reform Now v. Fowler, 178 F.3d 350, 354–55 (5th Cir. 11 1999). In Fowler, ACORN’s standing was at issue. Id. ACORN supported its claim that it 12 suffered an injury sufficient enough to meet the Article III standing requirements with three 13 categorical arguments. Id. at 358. First, that it had expended resources litigating Louisiana’s 14 alleged failure to implement the NVRA; second, that it had expended resources to monitor 15 Louisiana’s implementation of the NVRA; and third, that it had expended resources registering 16 voters. Id. 17 Here, since Plaintiffs’ standing was not challenged by Defendants, they have not provided 18 arguments defending their constitutional standing. The facts are similar to Fowler, though, and it 19 is likely similar defenses would be raised if their standing were challenged. In Fowler, the court 20 rejected ACORN’s first two arguments. Fowler, 178 F.3 at 354. The Fowler court followed 21 Supreme Court precedent in that one cannot fabricate standing through self-inflicted injury. Id.; 22 see also Bennett v. Spear, 520 U.S. 154, 162 (1997). The Court in Bennett held that the pursuit 23 of litigation alone cannot constitute an injury sufficient to establish standing under Article III. 24 Bennett at 520 U.S 154 at 162; see also Spann v. Colonial Village Inc., 899 F.2d 24, 27 (D.C. 25 Page 20 of 31 1 Cir. 1990) (“An organization cannot, of course, manufacture the injury necessary to maintain a 2 suit from its expenditure of resources on that very suit. Were the rule otherwise, any litigant 3 could create injury in fact by bringing a case, and Article III would present no real limitation.”). 4 Ultimately, Fowler held that unless ACORN could produce evidence that it would have been 5 using its resources differently had Louisiana been in compliance with the NVRA, it lacked injury 6 sufficient for Article III standing. Fowler, 178 F.3d at 359. This Court agrees with Fowler in its 7 application of Bennett regarding the rejection of ACORN’s claim to injury from self-inflicted 8 expenditures and would hold likewise if Plaintiffs brought similar arguments. 9 Plaintiffs’ claimed injury and assertions of causation, “[b]ut for defendants’ violations of 10 the NVRA, . . . volunteers and members would not have expended as much of their limited 11 resources assisting these Nevada citizens with voter registration,” is directly on point with 12 ACORN’s third argument. (Compl., at 20). Likewise, ACORN argued it suffered the injury 13 necessary for standing by expending resources to register voters that it would have otherwise 14 allocated to other activities. Fowler, 178 F.3d at 360. The Fowler court upheld ACORN’s 15 standing with respect to setting up voter registration tables within Louisiana’s welfare waiting 16 rooms, unemployment offices, and on Food Stamp lines. Id. at 361. However, the court 17 specifically rejected ACORN’s “allegations of injury due to including voter registration 18 applications with its membership applications or setting up a voter registration table at housing 19 fairs that it already attends suffice to confer standing on ACORN to sue on its own behalf.” Id. ( 20 emphasis added) Here, the NCLR and both branches of the NAACP claim they expended 21 additional resources, including staff and volunteer time, on efforts to assist individuals with voter 22 registration who should have been offered registration through Nevada’s public assistance 23 offices. Yet, by their own declarations in the Complaint, Plaintiffs objectives and practice are to 24 conduct numerous voter registration campaigns in the state of Nevada. (Id.). The difference 25 Page 21 of 31 1 between ACORN’s and Plaintiffs’ facts are significant. ACORN actually conducted voter 2 registration drives within the public assistance offices, whereas here, Plaintiffs did not. See 3 Fowler, 178 F.3d, 359–61. The court reasoned because ACORN would not have conducted its 4 voter registration drives within the public assistance offices but for ACORN’s belief that 5 Louisiana was not in compliance with section 7 of the NVRA, those voter registration drives 6 were expenditures and resources that would have otherwise been allocated to other activities. Id. 7 at 361. Here, Plaintiff’s claim makes no reference to conducting voter registration drives within 8 any public assistance offices, even though, like ACORN, Plaintiffs believed Nevada was in 9 violation of Section 7 of the NVRA by failing to provide voter assistance to public assistance 10 11 clients. The Court finds Plaintiffs’ self–described business objectives, activities, and practice 12 contradict their assertion to have spent additional resources. Plaintiff NCLR claims it has 13 expended additional resources, including staff and volunteer time, on efforts to assist individuals 14 with voter registration. Yet, the Complaint specifically states that NCLR “. . . has been a strong 15 advocate for citizens to participate in the electoral process. NCLR encourages Hispanic voter 16 registration and participation, particularly among low-income citizens.” (Compl. at 18). Further, 17 the Complaint states, “NCLR regularly has conducted and continues to conduct voter registration 18 drives in Nevada (including, for example, registering over 21,500 voters in the sate of Nevada 19 since 2008).” (Id. at 17). Because registering Hispanic American voters is an admitted tenet of 20 NCLR, and it regularly has conducted voter registration drives, NCLR has failed show any 21 “concrete and particularized” facts that they have conducted any voter registration drives other 22 than what they would have done had Nevada been in compliance with the NVRA. Thus, 23 NCLR’s claim of harm due to expending additional resources because of Nevada’s alleged 24 noncompliance with the NVRA is not substantiated by any facts in the Complaint. (See Compl.). 25 Page 22 of 31 1 Therefore, because NCLR has not shown they have suffered an injury-in-fact causally connected 2 to Nevada’s alleged noncompliance with the NVRA, they lack standing to be a party to this suit 3 under Article III and will be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction. 4 See Lujan, 504 U.S. at 560. 5 Plaintiffs Las Vegas and Reno branches of NAACP specifically allege harm because 6 “Nevada’s continuing violations of Section 7 of the NVRA have frustrated the Las Vegas 7 NAACP’s efforts, as low-income citizens and citizens of color have been deprived of 8 opportunities to register to vote at DHHS offices.” (Compl. at 18–20). Additionally, comporting 9 with the specific assertions of the NCLR supra, Las Vegas and Reno NAACP allege the same 10 harm, “but for defendants’ violations of the NVRA, NAACP volunteers and members would not 11 have expended as much of their limited resources assisting these Nevada citizens with voter 12 registration.” (Id.). Yet, similar to NCLR’s declarations, both branches of NAACP state they 13 “organize and conduct numerous voter registration drives in Nevada (including, for example, 14 conducting approximately four or five major and ten to twelve smaller voter registration drives in 15 Nevada in the last three years).” (Id.). Further, NAACP branches state they “[d]evote substantial 16 resources to voter registration drives every year, including recent and present efforts registering 17 voters at grocery stores, parks, and libraries in low-income neighborhoods.” (Id.). Unlike NCLR, 18 NAACP branches attempt to offer some specific facts to show how Nevada’s alleged violations 19 have harmed them in their “ongoing” voter registration programs. (Id.). NAACP branches 20 allege that in “promoting these drives, the NAACP organizers target, among others, families who 21 live in low income housing.” (Id.). NAACP states, “If public assistant offices throughout 22 Nevada were complying with the requirements of the NVRA, the branches of NAACP would 23 expend fewer resources on voter registration drives in communities where DHHS clients should 24 be offered voter registration opportunities at DHHS offices.” (Id.). It is plausible that NAACP 25 Page 23 of 31 1 branches have suffered harm of having to focus their drives in low-income communities if they 2 would have otherwise focused elsewhere, which they claim. However, they state that low- 3 income communities have been the focus of their “numerous” drives during the past three years. 4 (Id.). It appears, based on NAACPs’ own declarations, they were doing business as usual; 5 whether Nevada was in compliance or not. (See Id.) (Since the NAACP has been conducting 6 voter registration drives in the low-income communities for at least two years prior to their “field 7 investigation,” Plaintiffs business objectives, including budgets and expenditures, included these 8 voter registration drives). Thus, the NAACP has failed to show “concrete and particularized” 9 facts that they have conducted any voter registration drives other than what they would have done 10 had Nevada been in compliance with the NVRA. Therefore, like the NCLR supra, Plaintiffs 11 NAACP lack standing by not satisfying Article III’s case and controversy requirement. 12 However, Unlike the NCLR, The NAACP claims members of their organizations have 13 been harmed due to Nevada’s noncompliance, thereby providing associational standing to bring 14 the action. (See Compl., at 19–21). Plaintiffs, NAACP state: 15 NAACP members , including individuals who have not been and will not be offered the opportunity to vote through DHHS offices, are harmed by defendants violations of the law, and will continue to be so harmed until defendants are required to comply with Section 7 of the NVRA. This includes members who are not registered to vote and members who are registered to vote but have moved or will move and thus have an interest in promptly receiving information and assistance regarding changing their voter registration to match their new address. 16 17 18 19 (Id.). 20 In order to acquire associational standing on behalf of the members of an organization, 21 there are three defined requirements. Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 22 333, 383 (1977). The Supreme Court in Hunt stated: 23 24 25 [a]n association has standing to bring suit on behalf of its members when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to Page 24 of 31 1 the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation in the lawsuit of each of the individual members. 2 Hunt, 432 U.S. at 383 (quoting Warth v. Seldin, 422 U.S. 490 (1975). The first prong of the 3 Hunt test is a traditional standing inquiry grounded in the Article III case or controversy 4 requirement. Id. Hunt does not require that the organization has suffered injury Id. Rather, the 5 organization must establish the members it represents have suffered injury sufficient to confer 6 standing. See id. The organization need not establish that a significant number of its members 7 have suffered injury; injury to a single member will suffice. Id. However, that member must be 8 specifically identified. Summers v. Earth Island Institute, 555 U.S. 488 (2009). This case is on 9 point with the issues here regarding associational standing. In Summers, the Congress had 10 enacted the Forest Service Decision Making and Appeals Reform Act. Id. Among other things, 11 this required the Forest Service to establish a notice, comment, and appeal process for proposed 12 activities and projects as well as filing an environmental impact statement (EIS). Id. The Forest 13 Service had adopted a rule that certain fire rehabilitation projects which did not cause a 14 significant environmental impact would be categorically exempt from the requirement to file an 15 EIS. Id. In 2002, a fire burnt an area of Sequoia National Forest and the Forest Service 16 designated a timber salvage sale project which was exempt from an EIS. Id. Earth Island 17 Institute brought suit on behalf of one of its members and had established standing based on the 18 alleged harm to the named affiant. Id. His intention was to visit the area and his enjoyment of the 19 floral and fauna would be in jeopardy if the Forest Service proceeded with their plans. Id. The 20 Forest Service settled with the affiant at the district level. Id. Yet, Earth Island institute 21 continued adjudicating the issues based on the harm to members in future salvage projects. Id. 22 The Court found that because the original affiant had settled, there was no longer a case or 23 controversy with his issues. Id. The affiant, thus, no longer met the immediacy and redressability 24 25 Page 25 of 31 1 requirements and, therefore, no longer had standing. Id. Since Earth Island had not named 2 another specific member, the Court found they no longer had associational standing to continue 3 with the suit. Id. The decent in Summers argued that “. . . accepting the organization’s self- 4 description of the activities of its members, there is a statistical probability that some of those 5 members are threatened with concrete injury.” Id. The dissent offered the Sierra Club’s 6 pleadings as a basis for the logic underlying probability. Id. The dissent reasoned that with 7 700,000 members nationwide, including thousands in the state of California, who use and enjoy 8 the Sequoia National Forest, it is statistically probable that at least one will venture on to a small 9 tract that the Forest Service is rehabilitating and suffer concrete harm as a result. Id. Justice 10 11 12 13 14 15 16 Scalia, writing for the majority, responded: This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm. In Defenders of Wildlife, supra, at 563, we held that the organization lacked standing because it failed to “submit affidavits ... showing, through specific facts ... that one or more of [its] members would ... be ‘directly’ affected” by the allegedly illegal activity. Id. at 498. Even if the NAACP shows facts in the Complaint that have potentially harmed their 17 members, they fail to name any who is a member of their organization that was harmed due to 18 Nevada’s alleged noncompliance with the NVRA. Furthermore, the persons named in Plaintiffs’ 19 motion for a preliminary injunction, who signed declarations stating they were not provided voter 20 registration applications, were not identified as members of the NAACP. (See Mot. Prelim. Inj., 21 at 2-4). Plaintiffs fail the first prong of the Hunt factors by not identifying a specific member 22 who has been harmed by Nevada’s alleged noncompliance with the NVRA. The Court will not 23 entertain the balance of the Hunt factors of associational standing and their application to the 24 NAACP in this case. 25 Page 26 of 31 1 2 For the above stated reasons, the Court holds that Plaintiffs NAACP lack Article III associational standing to bring this action in federal court. 3 C. Motion for Preliminary Injunction 4 Because the motion to dismiss is granted, there is no case or controversy wherein 5 irreversible harm will occur. Therefore, the preliminary injunction is moot. However, the Court 6 will discuss Plaintiffs’ motion for a preliminary injunction for the record. 7 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should not be 8 granted unless the movant , by a clear showing, carries the burden of persuasion.’” Lopez v. 9 Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 10 (1997)). This burden requires the plaintiff to show: “1) he is likely to succeed on the merits of 11 such a claim; 2) he is likely to suffer irreparable harm in the absence of preliminary relief; 3) the 12 balance of equities tips in his favor; and 4) that an injunction is in the public interest.” Id. (citing 13 Winter v. National Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). All four of the Winter factors 14 must be met. Alliance for the Wild Rockies v. Cotrell, 632 F.3d 1127, 1132 (9th Cir. 2011). Yet, 15 these factors may be balanced against each other so that a stronger showing on one factor may 16 offset a weaker showing on another. Id. at 1131–32. 17 Plaintiffs argue that courts in the Ninth Circuit recognize two standards for evaluating 18 claims for injunctive relief. Plaintiffs contend “[i]t is a well–established rule that where 19 Congress expressly provides for injunctive relief to prevent violations of a statute, a plaintiff 20 need not demonstrate irreparable harm to secure an injunction.” (Mot. Prelim. Inj., at 11). 21 “Where, as here, Congress expressly provides for injunctive relief to prevent violations of a 22 federal statute, the ‘standard requirements for equitable relief need not be satisfied . . . .’” (Id. at 23 10) (quoting Trailer Train Co. v. State Bd. of Equalization, 697 F.2d 860, 869 (citing Atchison, 24 Topeka & Santa Fe Ry. v. Lennon, 640 F.2d 255, 259–61 (10th Cir. 1981); United States v. City 25 Page 27 of 31 1 and Cnty. of S.F., 310 U.S. 16, 30–31, (1940)). Plaintiffs argue the court should simply apply the 2 statute to prevent the violation. Plaintiffs are misguided in their application of this precedent. In 3 Trailer Train, the case involved the Railroad Revitalization and Regulatory Reform Act of 1976, 4 which prohibited “taxation of rail-transportation property at a higher rate than the rate generally 5 applicable to commercial and industrial property in the same assessment jurisdiction.” Trailer 6 Train, 697 F.2d at 862–63. The appellants argued that the district court erred in entering a 7 preliminary injunction without requiring plaintiffs to meet the usual standards. Id. at 868-69. 8 The court rejected this argument, explaining: “The standard requirement for equitable relief need 9 not be satisfied when an injunction is sought to prevent the violation of a federal statute which 10 specifically provides for injunctive relief.” Id. at 869. Here, Plaintiffs attempt to apply this 11 statement to the NVRA; however, it is not applicable due to differences in statutory language. In 12 Trailer Train, the relevant part of the statute declared, “a district court of the United States has 13 jurisdiction . . . to grant such mandatory or prohibitive injunctive relief, interim equitable relief, 14 and declaratory judgments as may be necessary to prevent . . . any acts in violation of this 15 section.” Id. The court found an exception to the traditional preliminary injunction standards 16 because the statute specifically called for injunctive relief to prevent acts in violation to the 17 statute. Id. The NVRA, however, does not limit courts’ equity jurisdiction by mandating that 18 courts enter a preliminary injunction whenever a violation has occurred or is threatened. See § 19 1973gg-(9). Courts “do not lightly assume that Congress has intended to depart from established 20 principles [of equitable discretion].” Owner Operator Indep. Drivers Ass’n Inc. v. Swift Transp. 21 Co., Inc., 367 F3d 1108, 1112 (9th Cir. 2004) (quoting Weinberger v. Romero-Barcelo, 456 U.S. 22 305, 313 (1982)). “Therefore, unless a statute in so many words, or by a necessary and 23 inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction 24 is to be recognized and applied.” Id. (internal quotation marks omitted). Further, a federal judge 25 Page 28 of 31 1 is not mechanically obligated to grant an injunction for every violation of law. See Weinberger, 2 456 U.S. at 313. Accordingly, just because a statute permits an injunction as one form of 3 remedy, this is not sufficient to find that Congress intended to constrain the equity jurisdiction of 4 the courts, and thus, dispose of balancing the traditional preliminary injunction factors. Swift 5 Transp., 367 F.3d at 1115. For these reasons, the Ninth Circuit in Swift Transportation affirmed 6 the district court’s use of the traditional balancing factors of a preliminary injunction. Id. The 7 statute in question in Swift Transportation is similar in wording to the NVRA statute. It reads, 8 “A person injured because a carrier [violates the Truth-in-Leasing regulations] may bring a civil 9 action to enforce [the regulations]. A person may bring a civil action for injunctive relief for 10 violations [thereof].” Id. at 1114 (alterations and emphasis in original). The court reasoned: 11 While this language clearly authorizes injunctive relief, it plainly does not, “in so many words, or by a necessary and inescapable inference,” require an injunction to issue to prevent violations of the Truth-in-Leasing regulations irrespective of traditional equitable considerations. 12 13 Id. 14 Similarly, the NVRA provides in relevant part: “the aggrieved person may bring a civil 15 action in an appropriate district court for declaratory or injunctive relief with respect to the 16 violation.” 42 U.S.C. § 1973gg-9(b)(2). As in Swift Transportation, there is nothing in the 17 NVRA that requires an injunction to issue irrespective of traditional equitable considerations in 18 order to prevent the violation(s). Id. For these reasons, the Court will use the four Winters 19 factors in evaluating Plaintiffs’ motion for a preliminary injunction. 20 The first factor to consider is whether Plaintiffs are likely to succeed on the merits of their 21 claim. See Winter, 555 U.S. at 20. Plaintiffs, to support their claims of Nevada’s systemic 22 failures under the NVRA, and needed urgency for an injunction, provide statistics from the U.S. 23 Census Bureau which shows that only 47.6% of eligible Nevada citizens who live in households 24 25 Page 29 of 31 1 earning $25,000 a year or less are registered to vote, compared to 72.4% of eligible citizens 2 living in households earning $100,000 a year or more. Plaintiffs allege this “voter registration 3 gap” show past and ongoing noncompliance with the NVRA. The Court finds these statistics are 4 conclusory and do not plausibly indicate that Nevada is not in compliance with the NVRA. First, 5 the data is from 2010 and earlier, which does not provide any measurement of Nevada’s present 6 state of affairs. Second, the fact that a lower percentage of people living in lower income 7 households are registered to vote than people living in a higher income households does not 8 demonstrate any causal link between this data and any alleged noncompliance by Defendants of 9 the NVRA. In fact, the figures Plaintiffs rely on for alleging Nevada’s noncompliance with the 10 NVRA are similar to the “voter registration gap” that exists nationally. Defendants point out, 11 according to 2010 U.S. Census Bureau national statistics, 58.1% of persons living in households 12 with earnings under $20,000 were registered to vote and 79.9% of persons living in households 13 with earnings over $100,000 were registered to vote. Nationally there is a “voter registration 14 gap” of 21.8% compared to Plaintiffs’ findings in Nevada of 24.8%. Thus there is a 3 percent 15 difference between Nevada and the national average. Plaintiffs also rely on data from the 16 Elections Assistance Committee (“EAC”) which reports the number of voter registration 17 applications submitted from public assistance offices. Like the Census Bureau data, the most 18 recent data is at least two years old. Plaintiffs contend Nevada is in noncompliance as evidenced 19 by the declining numbers of reported applications even though there has been a large increase of 20 people on welfare over the same period of time. Defendants, however, contend the numbers are 21 incomplete due to a number of counties not reporting, as well as containing obvious errors with 22 outlying numbers. Perhaps, as discussed supra, an equally conclusory explanation for the 23 declining numbers of applications generated through the public assistance offices is the result of 24 Plaintiffs’ success in conducting voter registration drives in the low-income communities. 25 Page 30 of 31 1 Additionally, as discussed supra, Plaintiffs’ affidavits concerning failures to present an 2 opportunity to register are not credible. 3 In addressing the second factor of the Winter test, the Court finds Plaintiffs will not suffer 4 irreparable harm in the absence of a preliminary injunction. There are two potential harms which 5 could occur in denying this motion. First, Plaintiffs have claimed harm due to expending 6 additional resources due to Nevada’s noncompliance with the NVRA. The alleged harm to the 7 Plaintiffs’ organizations is questionable factually and is monetary in nature, and therefore not 8 irreparable. Second, Plaintiffs claim hundreds of thousands of low-income Nevadans will be 9 deprived voter registration rights absent preliminary injunctive relief. There is no evidence 10 before the Court supporting Plaintiffs’ assertion that this harm will occur. Plaintiffs, therefore, 11 do not meet the second factor of the Winter test, which requires showing the likelihood of 12 irreparable harm in the absence of a preliminary injunction. 13 The final two Winter factors do not require an analysis, as the Motion fails under the first 14 two factors. For these reasons, if the issue were not moot, the Court would deny Plaintiffs’ 15 motion for a preliminary injunction. 16 17 CONCLUSION IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 22) is GRANTED. The 18 Motion for a Preliminary Injunction (ECF No. 24) is DENIED as moot and on its merits. 19 Further, the Court finds Plaintiffs lack Article III standing. The Complaint (ECF No. 1) is 20 DISMISSED with prejudice. 21 DATED: December 19, 2012. 22 23 24 25 __________________________________ ROBERT C. JONES Chief Judge Page 31 of 31

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