Progressive Leadership Alliance Of Nev. v. Cegavske (Ballot Issue) ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
PROGRESSIVE LEADERSHIP No. 85434
ALLIANCE OF NEVADA,
Appellant,
vs.
BARBARA K. CEGAVSKE, IN HER MEP
OFFICIAL CAPACITY AS NEVADA
OCT 25 2022
SECRETARY OF STATE,
Respondent. JpktEMII. C.CJI.JR7
DEPu
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a motion
for a preliminary injunction in a ballot matter. First Judicial District Court,
Carson City; James E. Wilson, Judge.
Appellant Progressive Leadership Alliance of Nevada (PLAN)
filed a complaint to block a temporary regulation promulgated by
respondent the Secretary of State. The regulat.ion would allow counties, i.f
they complied with certain requirements, to hand count votes as their
primary vote count method in the November 2022 election. PLAN sought a
preliminary injunction to prevent implementation of the regulation, which
the district court denied. This appeal followed.'
1 We ordered briefing on an expedited schedule as the parties asked
for a decision by October 21, 2022.
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"A party seeking a preliminary injunction must show a
likelihood of success on the merits of their case and that they will suffer
irreparable harm without preliminary relief." Shore.s u. Glob. Experience
Specialists, Inc., 134 Nev. 503, 505, 422 P.3d 1238, 1241 (2018). "[C]ourts
also weigh the potential hardships to the relative parties and others, and
the public interest." Univ. & Cmty. Coll. Sys. of Nev. v. Nevadans for Sound
Gov't, 120 Nev. 712, 721, 100 P.3d 179, 187 (2004). Reversal of a decision
granting or denying a preliminary injunction motion is only warranted
where the district court abuses its discretion or where it "based its decision
on an erroneous legal standard or on clearly erroneous findings of fact."
Shores, 134 Nev. at 505, 422 P.3d at 1241. (quoting Excellence Crnty. Mgmt.,
LLC u. Gilmore, 131 Nev. 347, 351, 351 P.3d 720, 722 (2015)) (further
internal quotation marks omitted).
We perceive no abuse of discretion in the district court's finding
that PLAN failed to show irreparable harm would result in the absence of
an injunction. We therefore affirm. First, no purported harm will result
from the regulation itself because no county submitted the proposed plan
required by the regulation in order to use hand-counting as its primary vote
count method for the upcoming election and the deadline to do so has
passed.2 And unless a special election takes place, the regulation will expire
before the next scheduled election. See NRS 233B.063(3) (providing that
any temporary regulation an agency adopts "between August 1 of an even-
numbered year and July 1 of the succeeding odd-numbered year without
2The regulation required any county seeking to hand count ballots as
its primary vote count method to submit a plan by October 9, 2022.
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following [certain] procedure[s] . . . expires by limitation on November 1 of
the odd-numbered year"). Second, PLAN failed to show how hand counting
ballots as a primary method of vote tabulation pursuant to the challenged
regulation causes any harm. Moreover, invalidating the regulation or
enjoining the Secretary of State via a preliminary injunction would not
prevent counties from conducting secondary hand counts of ballots if they
chose to do so.3 In light of this conclusion, we need not address PLAN's
remaining arguments regarding its likelihood of success on the merits or
the balancing of hardships and the public interest. See Boulder Oaks Cmty.
Ass'n v. B&J Andrews Enters., 125 Nev. 397, 403 n.6. 215 P.3d 27, 31 n.6
(2009) (recognizing that the moving party's failure to satisfy its burden as
to one element of a preliminary injunction is fatal to the motion); see also
42 Am. Jur. 2d Injunctions § 35 (2022) (deeming irreparable harm as "the
most important requirement for an injunction" and noting that "[e]ven a
strong likelihood of prevailing on the merits cannot make up for a deficient
showing of irreparable injury").
3PLAN's argument that granting the injunction would not harm the
Secretary of State or the public is irrelevant under the irreparable harm
prong; as the moving party, PLAN must demonstrate irreparable harm. See
Excellence Crnty. Mgrnt., 131 Nev. at 353, 351 P.3d at 723 (requiring the
moving party to show "an injury for which compensatory damages is an
inadequate remedy"); see also 42 Am. Jur. 2d Injunctions § 35 (stating that
the moving party bears the burden of showing irreparable harm with no
consideration for the lack of harm to the nonmoving party if the motion is
granted).
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Based on the foregoing, we
ORDER the judgment of the district court AFFIRMED.4
Parraguirre
, J.
Hardesty Stiglich
, •
Cadish Pickering
Herndon
cc: Hon. James E. Wilson, District Judge
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP/Las Vegas
Elias Law Group LLP/Wash DC
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP/Reno
Attorney General/Las Vegas
Attorney General/Carson City
Carson City Clerk
'The Honorable Abbi Silver having retired, this matter was decided
by a six-justice court.
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0 ), 19-17A