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1 MARC E. ELIAS, ESQ. (D.C. Bar No. 442007) (pro hac vice forthcoming)
COURTNEY A. ELGART, ESQ. (D.C. Bar No. 1645065) (pro hac vice forthcoming)
2 HENRY J. BREWSTER, ESQ. (D.C. Bar No. 1033410) (pro hac vice forthcoming)
PERKINS COIE LLP
3 700 Thirteenth Street NW, Suite 800
Washington, D.C. 20005-3960
4 Tel: (202) 654-6200
melias@perkinscoie.com
5 celgart@perkinscoie.com
hbrewster@perkinscoie.com
6
ABHA KHANNA, ESQ. (Wash. Bar No. 42612) (pro hac vice forthcoming)
7 REINA A. ALMON-GRIFFIN, ESQ. (Wash. Bar No. 54651) (pro hac vice forthcoming)
JONATHAN P. HAWLEY, ESQ. (Wash. Bar No. 56297) (pro hac vice forthcoming)
8 PERKINS COIE LLP
1201 Third Avenue, Suite 4900
9 Seattle, Washington 98101-3099
Tel: (206) 359-8000
10 akhanna@perkinscoie.com
ralmon-griffin@perkinscoie.com
11 jhawley@perkinscoie.com
12 BRADLEY SCHRAGER, ESQ. (SBN 10217)
DANIEL BRAVO, ESQ. (SBN 13078)
13 WOLF, RIFKIN, SHAPIRO,
SCHULMAN & RABKIN, LLP
14 3556 E. Russell Road, Second Floor
Las Vegas, Nevada 89120
15 Tel: (702) 341-5200
bschrager@wrslawyers.com
16 dbravo@wrslawyers.com
17 Attorneys for Proposed Intervenor-Defendants
DNC Services Corporation/Democratic National
18 Committee, DCCC, and Nevada State
Democratic Party
19
20
21

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

22 DONALD J. TRUMP FOR PRESIDENT,
INC., REPUBLICAN NATIONAL
23 COMMITTEE, and NEVADA REPUBLICAN
PARTY,
24
Plaintiffs,
25
v.
26
BARBARA CEGAVSKE, in her official
27 capacity as Nevada Secretary of State,
28

Case No.: 2:20-cv-01445-JCM-VCF
MOTION TO INTERVENE AS
DEFENDANTS
EXPEDITED BRIEFING SCHEDULE
REQUESTED

 Case 2:20-cv-01445-JCM-VCF Document 9 Filed 08/07/20 Page 2 of 15

1

Defendant,

2 and
3 DNC SERVICES
CORPORATION/DEMOCRATIC
4 NATIONAL COMMITTEE, DCCC, and
NEVADA STATE DEMOCRATIC PARTY,
5
Proposed
6
IntervenorDefendants.
7
8
9

Pursuant to Federal Rule of Civil Procedure 24, Proposed Intervenor-Defendants DNC

10 Services Corporation/Democratic National Committee (“DNC”), DCCC, and the Nevada State
11 Democratic Party (“NSDP,” and collectively, “Proposed Intervenors”) move to intervene as
12 defendants in the above-titled action. Defendant consents to this motion and Plaintiffs reserve
13 taking a position.
14

The United States is in the midst of an unprecedented public health crisis; Nevada is no

15 exception. The highly contagious coronavirus has fundamentally altered Nevadans’ daily lives—
16 including how they vote. Recognizing that the novel coronavirus will impact the November 3,
17 2020 general election (the “November Election”), the Nevada Legislature enacted Assembly Bill
18 4. It has two parts. The first—at issue in this lawsuit—articulates an infrastructure for elections
19 held during states of emergency. These changes largely incorporate and supplement Nevada’s
20 existing election laws and provide greater certainty to election officials regarding how the
21 November Election (and any future elections held during emergencies) should be conducted. The
22 second part of Assembly Bill 4—not challenged by Plaintiffs—makes general, permanent
23 changes to Nevada’s election laws. As a result, the Legislature has taken the necessary and
24 appropriate steps to ensure that all Nevadans have safe and meaningful opportunities to vote,
25 both during the pandemic and after.
26

Plaintiffs Donald J. Trump for President, Inc., Republican National Committee, and

27 Nevada Republican Party now seek to undo several of Assembly Bill 4’s important provisions.
28
2

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1 Plaintiffs allege a hodgepodge of claims, none of them viable, in an attempt to undermine the
2 State’s efforts to provide certainty to election officials and protect Nevada voters during a public
3 health crisis. Their claims thus pose a clear and direct threat to Proposed Intervenors’ rights and
4 legal interests.
5

For the reasons set forth below, Proposed Intervenors are entitled to intervene in this case

6 as a matter of right under Federal Rule of Civil Procedure 24(a)(2). Such intervention is needed
7 to protect the substantial and distinct legal interests of Proposed Intervenors, which will
8 otherwise be inadequately represented in this litigation. In the alternative, Proposed Intervenors
9 should be granted permissive intervention pursuant to Rule 24(b). In accordance with Rule 24(c),
10 a proposed Answer is attached as Exhibit 1.
11

Proposed Intervenors also respectfully request that this Court enter an expedited briefing

12 schedule on this Motion.
13
14

BACKGROUND
On March 24, 2020, in response to the coronavirus pandemic, Defendant Barbara

15 Cegavske (the “Secretary”) announced plans to “conduct an all-mail election” for the June 9,
16 2020 Primary (the “June Primary Plan”). Press Release, Nev. Sec’y of State, Secretary Cegavske
17 Announces Plan to Conduct the June 9, 2020 Primary Election by All Mail (Mar. 24, 2010),
18 https://www.nvsos.gov/sos/Home/Components/News/News/2823/23. While the June Primary
19 Plan required county election officials to mail ballots to all active registered voters, it
20 significantly reduced in-person voting opportunities, allocating only one polling location for each
21 county regardless of population. Id. Moreover, the June Primary Plan did not address the impacts
22 of Nevada election laws that burdened the right to vote for Nevadans attempting to vote by mail.
23

A.

24

On April 10, NSDP sent a letter to the Secretary expressing concern about the lack of in-

The State Court Action

25 person polling locations in Nevada’s more populous counties and the likely disenfranchising
26 impact of Nevada’s voter assistance ban. See Letter to Hon. Barbara Cegavske, NSDP (Apr. 10,
27 2020),

https://nvdems.com/wp-content/uploads/2020/04/200410-Letter-to-Hon.-Barbara-

28
3

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1 Cegavske.pdf. On April 16, after the Secretary refused to address NSDP’s concerns, see April
2 Corbin Girnus & Arianna Skibell, Nevada Dems Push for Changes to Upcoming All-Mail
3 Primary, Nev. Current (Apr. 15, 2020), https://www.nevadacurrent.com/2020/04/15/nevada4 dems-push-for-changes-to-upcoming-all-mail-primary,

Proposed

Intervenors—joined

by

5 Priorities USA and a group of concerned Nevada voters (collectively, the “State Court
6 Plaintiffs”)—filed a lawsuit in Nevada state court seeking declaratory and injunctive relief (the
7 “State Court Action”). See Compl. for Declaratory and Injunctive Relief, Corona v. Cegavske,
8 No. 20 OC 00064 1B (Nev. Dist. Ct. Apr. 16, 2020).1 The State Court Plaintiffs’ complaint and
9 subsequently filed motion for preliminary injunction argued, among other things, that the Nevada
10 and U.S. Constitutions require Nevada election officials to provide additional voting locations in
11 more populous counties and allow third parties to assist voters in returning their mail ballots. The
12 Republican National Committee and Nevada Republican Party, both Plaintiffs here, moved for
13 and were granted intervention as defendants in the State Court Action. The State Court Plaintiffs
14 withdrew their request for an injunction as to the June 2020 primary election (the “June
15 Primary”) when Clark County agreed to open additional polling locations and provide other
16 remedial measures that would help people vote.2
17

Following the June Primary, on June 19, the State Court Plaintiffs filed an amended

18
19

1

21

2

The Corona complaint can also be found attached to Proposed Intervenors’ motion to intervene
in a separate federal court action. See Mot. to Intervene as Defendants, Ex. 3, Paher v. Cegavske,
20 No. 3:20-cv-00243-MMD-WGC (D. Nev. Apr. 27, 2020), ECF No. 27-3.

22
23
24
25
26
27

Around the same time, a different set of voters filed suit in this Court, challenging the June
Primary Plan’s requirement that election officials mail ballots to active, registered voters. See
Verified Compl. for Declaratory and Injunctive Relief, Paher v. Cegavkse, No. 3:20-cv-00243MMD-WGC (D. Nev. Apr. 21, 2020), ECF No. 1. Among other things, the Paher plaintiffs
argued that vote by mail would result in an increased risk of voter fraud that threatened to dilute
their votes. Proposed Intervenors sought and were granted intervention as of right in that case.
See Paher v. Cegavske, No. 3:20-cv-00243-MMD-WGC, 2020 WL 2042365, at *1 (D. Nev.
Apr. 28, 2020). This Court ultimately rejected the Paher plaintiffs’ claims—including their
“speculative claim of voter fraud”—and dismissed the case. Paher v. Cegavkse, No. 3:20-cv00243-MMD-WGC, 2020 WL 2089813, at *1, *5 (D. Nev. Apr. 30, 2020); see also Paher v.
Cegavkse, No. 3:20-cv-00243-MMD-WGC, 2020 WL 4431567, at *7 (D. Nev. July 31, 2020).

28
4

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1 complaint narrowing their claims to the State’s ban on voter assistance in returning mail ballots
2 and its signature match laws for mailing and absentee ballots. See Am. Compl. for Declaratory
3 and Injunctive Relief, Corona v. Cegavske, No. 20 OC 00064 1B (Nev. Dist. Ct. June 19, 2020).
4 Trial was set for August 17, 2020, and discovery commenced.
5

In the meantime, the coronavirus pandemic worsened. Shortly before Nevada’s election

6 officials decided to convert the June Primary to a mail-based election, on March 12, 2020,
7 Nevada reported 11 total cases of COVID-19. See Nevada Coronavirus Map and Case Count,
8 N.Y. Times https://www.nytimes.com/interactive/2020/us/nevada-coronavirus-cases.html (last
9 visited Aug. 7, 2020). By July, Nevada was reporting between 412 and 1,437 new cases of
10 COVID-19 each day. See id. In total, Nevada has experienced more than 53,000 confirmed case
11 of COVID-19 to date. See id.3
12

B.

13

On August 3, the Nevada Legislature enacted Assembly Bill 4 (“A.B. 4”). See AB4, Nev.

14 Elec.

Assembly Bill 4

Legis.

Info.

Sys.,

15 https://www.leg.state.nv.us/App/NELIS/REL/32nd2020Special/Bill/7150/Text (last visited Aug.
16 7, 2020). Assembly Bill 4 makes several updates to the Nevada election code, only some of
17 which are at issue in this case. Sections 2 to 27 codify procedures for conducting elections during
18 declared states of emergency, including the November Election, with the stated purpose of
19 ensuring that “[e]lection officials have certainty concerning the procedures to prepare for and
20 conduct an” affected election and that “voters have faith and confidence that they can participate
21 in [an] affected election and exercise their right to vote without fear for their health, safety and
22 welfare under such circumstances.” A.B. 4, § 2.
23

Relevant here, Sections 2 to 10 set forth the general principles governing interpretation of

24
3

The number of confirmed deaths from COVID-19 has also greatly increased since Governor
Sisolak first declared a state of emergency. On March 16, 2020, Nevada reported its first
26 confirmed death from COVID-19. See Nevada Coronavirus Map, supra. Since then, at least 900
Nevadans have died from the disease. See id.
27
25

28
5

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1 the law, and when the law applies. For example, Sections 5 and 8 define an “affected election”
2 subject to Sections 2 to 27 as one occurring when either the Governor or the Legislature has
3 proclaimed a state of emergency or declaration of disaster by a certain time. And Section 9
4 clarifies that the other, non-conflicting provisions of Chapter 293 of the Nevada Revised Statutes
5 (“N.R.S.”)—the election code—continue to apply to mail-based elections. Next, Sections 11 to
6 13 address the long lines experienced in the states’ most populous counties during the June
7 Primary by requiring Nevada counties to offer a minimum number of vote center polling
8 locations based on population. Then, Sections 15 and 16 modify Nevada’s current election
9 laws—which previously allowed counties to mail ballots to voters, see N.R.S. 293.213(4)—to
10 require counties to do so if an election is affected by a state of emergency. Finally, Sections 17
11 to 27 provide an infrastructure for mail-based elections, incorporating and on building upon
12 preexisting election laws to ensure that mail-based elections under Assembly Bill 4 are
13 administered consistently with other Nevada elections. For example, Section 20 applies the
14 postmark law that already exists for absentee ballots to mail ballots. Compare A.B. 4, § 20 with
15 N.R.S. 293.317. And Section 22 codifies the authority county election officials already possess
16 and exercise to create procedures for processing ballots. Assembly Bill 4 also addresses the
17 concerns raised in the State Court Action by allowing third parties to assist voters in returning
18 mail ballots both in a state of emergency, see A.B. 4, § 21, and otherwise, see id., §§ 44, 70.
19

Following the passage of Assembly Bill 4, but before it was even signed by the

20 Governor, counsel for Plaintiffs Republican National Committee and Nevada Republican
21 Party—intervenor-defendants in the State Court Action—demanded immediate dismissal of the
22 State Court Plaintiffs’ amended complaint in light of Assembly Bill 4, threatening to move for
23 sanctions if they did not oblige. The State Court Plaintiffs, acknowledging that Assembly Bill 4
24 fully addressed their claims, voluntarily dismissed the case on August 4.
25

C.

26

Later that day, Plaintiffs initiated this suit. Their complaint lodges five challenges to

The Present Litigation

27 Assembly Bill 4, all confined to Sections 2 to 27. Count I challenges its postmark law in the
28
6

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1 context of mail-based elections. Count II challenges its guidelines for allocating vote center
2 polling locations. Count III challenges Section 22, which allows county election officials to
3 establish the procedures for processing and counting mail ballots. Count IV challenges Section
4 25, which provides guidance on the processing of ballots that are folded together in the same
5 return envelope. And Count V challenges Assembly Bill 4’s entire mail-based election
6 infrastructure set forth in Sections 2 to 27 as a violation of the right to vote, based on the
7 purported threat of voter fraud.
8

Plaintiffs’ success in this litigation would make it more difficult for Proposed

9 Intervenors’ supporters and members to vote and threaten to undo the basis on which Proposed
10 Intervenors dismissed the State Court Action—both of which are interests not shared by the
11 present parties in this litigation. For these and other reasons, Proposed Intervenors now move to
12 intervene.
13
14

STANDARD OF LAW
“Rule 24 traditionally receives liberal construction in favor of applicants for

15 intervention.” Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003); accord Venetian
16 Casino Resort, LLC v. Enwave Las Vegas, LLC, No. 2:19-CV-1197 JCM (DJA), 2020 WL
17 1539691, at *3 (D. Nev. Jan. 7, 2020) (noting intervention requirements “are broadly interpreted
18 in favor of intervention” (quoting Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006))); see
19 also W. Expl. LLC v. U.S. Dep’t of Interior, No. 3:15-cv-00491-MMD-VPC, 2016 WL 355122,
20 at *2 (D. Nev. Jan. 28, 2016) (noting Rule 24’s liberal construction and “focus[] on practical
21 considerations rather than technical distinctions”).
22

The Ninth Circuit “require[s] applicants for intervention as of right pursuant to Rule

23 24(a)(2) to meet a four-part test”:
24
25
26
27

(1) the motion must be timely; (2) the applicant must claim a “significantly
protectable” interest relating to the property or transaction which is the subject of
the action; (3) the applicant must be so situated that the disposition of the action
may as a practical matter impair or impede its ability to protect that interest; and
(4) the applicant’s interest must be inadequately represented by the parties to the
action.

28
7

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1 United States v. Aerojet Gen. Corp., 606 F.3d 1142, 1148 (9th Cir. 2010) (quoting California ex
2 rel. Lockyer v. United States, 450 F.3d 436, 440 (9th Cir. 2006)).
3

“Rule 24(b) permits the Court to allow anyone to intervene who submits a timely motion

4 and ‘has a claim or defense that shares with the main action a common question of law or fact.’”
5 Nevada v. United States, No. 3:18-cv-569-MMD-CBC, 2019 WL 718825, at *2 (D. Nev. Jan. 14,
6 2019) (quoting Fed. R. Civ. P. 24(b)(1)(B)).
7
8
9

ARGUMENT
I.

Proposed Intervenors satisfy Rule 24(a)’s requirements for intervention as a matter
of right.

10

Proposed Intervenors satisfy each of the four requirements of Rule 24(a).

11

First, the motion is timely. Plaintiffs filed their complaint on August 4, 2020; this motion

12 follows three days later, and before any substantive activity in the case. There has therefore been
13 no delay, and no possible risk of prejudice to the other parties. See League of United Latin Am.
14 Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997); see also Nevada, 2019 WL 718825, at
15 *2 (granting motion to intervene filed several weeks after action commenced); W. Expl., 2016
16 WL 355122, at *2 (granting motion to intervene filed nearly two months after action
17 commenced).
18

Second and third, Proposed Intervenors have significant protectable interests in this

19 lawsuit that might be impaired by Plaintiffs’ causes of action. “An applicant [for intervention]
20 has a ‘significant protectable interest’ in an action if (1) it asserts an interest that is protected
21 under some law, and (2) there is a ‘relationship’ between its legally protected interest and the
22 plaintiff’s claims.” W. Expl., 2016 WL 355122, at *2 (quoting Lockyer, 450 F.3d at 441). In
23 assessing whether such an interest is sufficiently “impair[ed] or impede[d],” Fed. R. Civ. P.
24 24(a)(2), courts “look[] to the ‘practical consequences’ of denying intervention.” Nat. Res. Def.
25 Council v. Costle, 561 F.2d 904, 909 (D.C. Cir. 1977) (quoting Nuesse v. Camp, 385 F.2d 694,
26 702 (D.C. Cir. 1967)). “Once an applicant has established a significantly protectable interest in
27 an action, courts regularly find that disposition of the case may, as a practical matter, impair an
28
8

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1 applicant’s ability to protect that interest.” Venetian Casino Resort, 2020 WL 1539691, at *3
2 (citing Lockyer, 450 F.3d at 442).
3

Plaintiffs’ challenge to Assembly Bill 4 would impair Proposed Intervenors’ legally

4 protected interests. In addition to representing the interests of its members who risk
5 disenfranchisement, Proposed Intervenors also possess organizational interests that are
6 threatened by Plaintiffs’ lawsuit. If Plaintiffs succeed and the challenged portions of Assembly
7 Bill 4 are enjoined, then Proposed Intervenors—each of which is an organization dedicated to
8 promoting the franchise and supporting the election of Democratic Party candidates—will suffer
9 direct injury because fewer Democratic voters will have an opportunity to vote and have their
10 votes counted in the November Election and future contests. Without expansive opportunities to
11 vote by mail coupled with meaningful opportunities to vote in person, many Nevadans will be
12 forced to choose between risking their health to vote and participating in the November Election.
13 The result will be far less robust turnout among Democratic supporters. Courts have routinely
14 concluded that interference with a political party’s electoral prospects constitutes a direct injury
15 that satisfies Article III standing, which goes beyond the requirement needed for intervention
16 under Rule 24(a)(2) in this case. See, e.g., Owen v. Mulligan, 640 F.2d 1130, 1132 (9th Cir.
17 1981) (holding that “the potential loss of an election” is sufficient injury to confer Article III
18 standing); see also Tex. Democratic Party v. Benkiser, 459 F.3d 582, 586–87 (5th Cir. 2006)
19 (recognizing that “harm to [] election prospects” constitutes “a concrete and particularized
20 injury”); cf. Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017) (noting that an
21 intervenor by right only needs “Article III standing in order to pursue relief that is different from
22 that which is sought by a party with standing”). Indeed, Proposed Intervenors have intervened in
23 several voting cases this cycle on this very theory. See Issa v. Newsom, No. 2:20-cv-0104424 MCE-CKD, 2020 WL 3074351, at *3 (E.D. Cal. June 10, 2020) (granting intervention of right to
25 DCCC); Republican Nat’l Comm. v. Newsom, No. 2:20-cv-01055-MCE-CKD, slip op. at 5 (E.D.
26 Cal. June 10, 2020), ECF No. 38 (same); Paher v. Cegavske, No. 3:20-cv-00243-MMD-WGC,
27 2020 WL 2042365, at *2 (D. Nev. Apr. 28, 2020) (granting intervention as of right to DNC,
28
9

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1 DCCC, and NSDP where “Plaintiffs’ success on their claims would disrupt the organizational
2 intervenors’ efforts to promote the franchise and ensure the election of Democratic Party
3 candidates”).
4

Moreover, the disruptive and disenfranchising effects of Plaintiffs’ action would require

5 Proposed Intervenors to divert resources to address restricted voting opportunities—another
6 legally protected interest that is implicated by Plaintiffs’ claims. See, e.g., Crawford v. Marion
7 Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007) (concluding “new law injure[d] the
8 Democratic Party by compelling the party to devote resources” that it would not have needed to
9 devote absent the new law), aff’d, 553 U.S. 181 (2008); Democratic Nat’l Comm. v. Reagan, 329
10 F. Supp. 3d 824, 841 (D. Ariz. 2018) (finding standing where law “require[d] Democratic
11 organizations . . . to retool their [get-out-the-vote] strategies and divert [] resources”), rev’d on
12 other grounds sub nom. Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989 (9th Cir. 2020) (en
13 banc). Accordingly, Proposed Intervenors satisfy the second and third requirements of Rule
14 24(a)(2).
15

Fourth, Proposed Intervenors cannot rely on the parties in this case to adequately

16 represent their interests. “Courts consider three factors when assessing whether a present party
17 will adequately represent the interests of an applicant for intervention”:
18
19
20

(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
willing to make such arguments; and (3) whether a proposed intervenor would
offer any necessary elements to the proceeding that other parties would neglect.

21 W. Expl., 2016 WL 355122, at *3 (quoting Arakaki, 324 F.3d at 1086). “[T]he requirement of
22 inadequacy of representation is satisfied if the applicant shows that representation of its interests
23 ‘may be’ inadequate,” and therefore “the burden of making this showing is minimal.” Id.
24 (quoting Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir. 1983)).
25

While the Secretary has an undeniable interest in defending the actions of state

26 government, Proposed Intervenors have a different focus: ensuring that every Democratic voter
27 in Nevada has a meaningful opportunity to cast a ballot and have that ballot counted, both in the
28
10

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1 November Election and in future elections. Courts have “often concluded that governmental
2 entities do not adequately represent the interests of aspiring intervenors.” Fund for Animals, Inc.
3 v. Norton, 322 F.3d 728, 736 (D.C. Cir. 2003); accord Citizens for Balanced Use v. Mont.
4 Wilderness Ass’n, 647 F.3d 893, 899 (9th Cir. 2011) (“[T]he government’s representation of the
5 public interest may not be ‘identical to the individual parochial interest’ of a particular group just
6 because ‘both entities occupy the same posture in the litigation.’” (quoting WildEarth Guardians
7 v. U.S. Forest Serv., 573 F.3d 992, 996 (10th Cir. 2009))). That is the case here, where Proposed
8 Intervenors have specific interests and concerns—from their overall electoral prospects to the
9 most efficient use of their limited resources to promote get-out-the-vote-efforts—that neither the
10 Secretary nor any other party in this lawsuit shares. See Paher, 2020 WL 2042365, at *3
11 (granting intervention as of right where proposed intervenors “may present arguments about the
12 need to safeguard Nevada[ns’] right to vote that are distinct from [state defendants’]
13 arguments”); Associated Gen. Contractors of Am. v. Cal. Dep’t of Transp., No. 09-01622, 2009
14 WL 5206722, at *2–3 (E.D. Cal. Dec. 23, 2009) (granting intervention where defendant state
15 agency’s “main interest is ensuring safe public roads and highways” and agency “is not charged
16 by law with advocating on behalf of minority business owners” as intervenors would). Indeed,
17 the Secretary’s inability to adequately safeguard Proposed Intervenors’ interests is evidenced by
18 the course of the State Court Action, in which Proposed Intervenors and the Secretary were
19 opposing parties. Proposed Intervenors cannot rely on the Secretary―their adversary in the State
20 Court Action―to adequately safeguard their legally protected interests in this case.
21

Phrased in the parlance of Rule 24, neither Plaintiffs nor the Secretary have interests

22 “such that [they] will undoubtedly make all of” Proposed Intervenors’ arguments. W. Expl., 2016
23 WL 355122, at *3 (quoting Arakaki, 324 F.3d at 1086). While the Secretary might defend
24 Assembly Bill 4 as a law properly passed by the Nevada Legislature, she is less likely to join
25 Proposed Intervenors in advocating that certain of Assembly Bill 4’s policies challenged in this
26 suit are required to safeguard Nevadans’ right to vote. By actively arguing against Proposed
27 Intervenors’ positions in the State Court Action, the Secretary has clearly demonstrated that she
28
11

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1 is neither “capable [nor] willing to make such” critical arguments. W. Expl., 2016 WL 355122, at
2 *3 (quoting Arakaki, 324 F.3d at 1086); see also, e.g., Kleissler v. U.S. Forest Serv., 157 F.3d
3 964, 974 (3d Cir. 1998) (granting motion to intervene as of right where private parties’ interests
4 diverged from the government’s interest in representation, and where “[t]he early presence of
5 intervenors may serve to prevent errors from creeping into the proceedings, clarify some issues,
6 and perhaps contribute to an amicable settlement”); Venetian Casino Resort, 2020 WL 1539691,
7 at *4 (granting intervention where intervenor and defendant “ha[d] a similar interest” but it was
8 “conceivable that [defendant’s] interest . . . could conflict with [intervenor’s] interest”); Ohio
9 River Valley Envtl. Coal., Inc. v. Salazar, No. 3:09-0149, 2009 WL 1734420, at *1 (S.D.W. Va.
10 June 18, 2009) (granting motion to intervene as of right where defendant and proposed
11 intervenor had identical goals but the “difference in degree of interest could motivate the
12 [intervenor] to mount a more vigorous defense” and “[t]he possibility that this difference in vigor
13 could unearth a meritorious argument overlooked by the current Defendant justifies the potential
14 burden on having an additional party in litigation”).
15

Proposed Intervenors intend to forcefully promote the ability of all eligible Nevadans to

16 cast ballots in the November Election and have those ballots counted. Because these arguments
17 will not be made by the current parties to the litigation, Proposed Intervenors cannot rely on the
18 Secretary to provide adequate representation. They have thus satisfied the four requirements for
19 intervention as of right under Rule 24(a)(2). See Paher, 2020 WL 2042365, at *3 (granting DNC,
20 DCCC, and NSDP intervention as of right in challenge to the June Primary Plan).
21

II.

22

Alternatively, Proposed Intervenors satisfy Rule 24(b)’s requirements for
permissive intervention.

23

Even if this Court were to find Proposed Intervenors ineligible for intervention as of

24 right, they easily satisfy the requirements for permissive intervention under Rule 24(b), which
25 provides the Court with broad discretion “to allow anyone to intervene who submits a timely
26
27
28
12

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1 motion and ‘has a claim or defense that shares with the main action a common question of law or
2 fact.’” Nevada, 2019 WL 718825, at *2 (quoting Fed. R. Civ. P. 24(b)(1)(B)).4 “Because a court
3 has discretion in deciding whether to permit intervention, it should consider whether intervention
4 will cause undue delay or prejudice to the original parties, whether the applicant’s interests are
5 adequately represented by the existing parties, and whether judicial economy favors
6 intervention.” Id. (citing Venegas v. Skaggs, 867 F.2d 527, 530–31 (9th Cir. 1989)).
7

For the reasons discussed in Part I supra, Proposed Intervenors’ motion is timely, and

8 they cannot rely on the Secretary to adequately protect their interests. Proposed Intervenors also
9 have defenses to Plaintiffs’ claims that share common questions of law and fact—for example,
10 whether Plaintiffs have stated a claim under the Equal Protection Clause.
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And significantly, intervention will result in neither prejudice nor undue delay. Proposed

12 Intervenors have an undeniable interest in a swift resolution of this action to ensure that
13 Assembly Bill 4 is timely implemented to allow every eligible Nevadan to cast a ballot—and
14 have that ballot counted—in the November Election. Indeed, Proposed Intervenors contend that
15 this action itself threatens to cause harmful delays that could stymie the State’s efforts to
16 circulate mail ballots. Proposed Intervenors therefore have a strong interest in defending
17 Assembly Bill 4 and opposing Plaintiffs’ lawsuit. Given the legal and factual shortcomings of
18 Plaintiffs’ claims, Proposed Intervenors are confident that their intervention in this case, and the
19 filings that will follow, will result in expeditious resolution of this litigation.
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REQUEST TO EXPEDITE BRIEFING SCHEDULE

21

Proposed Intervenors believe that expeditious resolution of the Motion would serve the

22 interests of judicial efficiency and ensure that Proposed Intervenors are able to protect their
23 rights and interests. Proposed Intervenors respectfully request the following briefing schedule:
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4

Although permissive intervention also generally requires that “the court has an independent
basis
for jurisdiction,” that finding “is unnecessary where, as here, in a federal question case the
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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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 Case 2:20-cv-01445-JCM-VCF Document 9 Filed 08/07/20 Page 14 of 15

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•

Responses to Proposed Intervenors’ Motion to Intervene as Defendants shall be

2 filed on or before Wednesday, August 12, 2020; and
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•

Proposed Intervenors’ reply briefs, if any, shall be filed on or before Thursday,

4 August 13, 2020.
5
6

CONCLUSION
For the reasons stated above, Proposed Intervenors respectfully request that the Court

7 grant their motion to intervene as a matter of right under Rule 24(a)(2) or, in the alternative,
8 permit them to intervene under Rule 24(b).
9

DATED this 7th day of August, 2020

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WOLF, RIFKIN, SHAPIRO,
SCHULMAN & RABKIN, LLP

12

By:

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/s/ Bradley Schrager
Bradley S. Schrager, Esq., SBN 10217
Daniel Bravo, Esq., SBN 13078
3556 E. Russell Road, Second Floor
Las Vegas, Nevada 89120
Marc E. Elias, Esq.*
Courtney A. Elgart, Esq.*
Henry J. Brewster, Esq.*
PERKINS COIE LLP
700 Thirteenth Street NW, Suite 800
Washington, D.C. 20005-3960
Abha Khanna, Esq.*
Reina A. Almon-Griffin, Esq.*
Jonathan P. Hawley, Esq.*
PERKINS COIE LLP
1201 Third Avenue, Suite 4900
Seattle, Washington 98101-3099
Attorneys for Proposed Intervenor-Defendants DNC
Services Corporation/Democratic National
Committee, DCCC, and Nevada State Democratic
Party
*Pro hac vice applications forthcoming

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 Case 2:20-cv-01445-JCM-VCF Document 9 Filed 08/07/20 Page 15 of 15

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2

CERTIFICATE OF SERVICE
I hereby certify that on this 7th of August, 2020 a true and correct copy of MOTION TO

3 INTERVENE AS DEFENDANTS was served via the United States District Court’s CM/ECF
4 system on all parties or persons requiring notice.
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By: /s/ Dannielle Fresquez
Dannielle Fresquez, an Employee of
WOLF, RIFKIN, SHAPIRO, SCHULMAN &
RABKIN, LLP

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