National Council of La Raza v. Barbara Cegavske

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL COUNCIL OF LA RAZA; No. 13-15077
LAS VEGAS BRANCH OF THE
NAACP, Branch 1111; RENO- D.C. No.
SPARKS BRANCH OF THE NAACP, 3:12-cv-00316-
Branch 1112, RCJ-VPC
Plaintiffs-Appellants,
v. OPINION
BARBARA K. CEGAVSKE, in her
official capacity as Secretary of State
of the State of Nevada; RICHARD
WHITLEY, in his official capacity as
Director of the Department of Health
and Human Services of the State of
Nevada,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted
March 12, 2015—San Francisco, California
Filed September 3, 2015
2 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE
Before: William A. Fletcher and Morgan Christen, Circuit
Judges, and Roslyn O. Silver,* Senior District Judge.
Opinion by Judge W. Fletcher
SUMMARY**
Civil Rights
The panel reversed the district court’s dismissal of a
complaint brought by the National Council of La Raza and
the Las Vegas and Reno-Sparks chapters of the NAACP
alleging that Nevada’s Secretary of State and Director of the
Department of Health and Human Services violated, and
continue to violate, Section 7 of the National Voter
Registration Act of 1993.
Section 7 requires states to distribute voter registration
materials and to make assistance available to people who
visit, and make certain requests of, public assistance offices.
Plaintiffs alleged that Nevada’s failure to comply with
Section 7 of the Act caused them to expend additional
resources, and that “but for” the State’s failure they would
have spent these resources to accomplish other aspects of
their organizational missions, such as voter education and
registering voters not covered by the Act. The district court
*
The Honorable Roslyn O. Silver, Senior District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 3
dismissed the complaint for lack of Article III and statutory
standing.
The panel held that plaintiffs satisfied the standing
requirement of Article III by plausibly alleging they suffered
injury in fact fairly traceable to the State’s noncompliance
with Section 7 of the Act. The panel also held that plaintiffs
satisfied statutory standing in two ways. First, they notified
the State that violations were occurring 120 days before an
election, thus authorizing them to file suit after waiting 20
days from the date of their notification. Second, they
plausibly alleged that the State was violating Section 7 within
30 days of a federal election, thus permitting them to file suit
without first notifying the State (even though plaintiffs in fact
had done so). The panel remanded the matter for further
proceedings consistent with its opinion and instructed the
Chief Judge of the District of Nevada to assign the case to a
different district judge.
COUNSEL
Sarah E. Brannon, Project Vote, Washington, D.C.; Neil A.
Steiner (argued), Dechert LLP, New York, New York; Lisa
Joy Danetz, Dçmos: A Network for Ideas and Action, New
York, New York; Robert Kengle and Jon M. Greenbaum,
Lawyers’ Committee for Civil Rights Under Law,
Washington, D.C.; W. Chris Wicker, Woodburn and Wedge,
Reno, Nevada, for Plaintiffs-Appellants.
Catherine Cortez Masto, Attorney General, and K. Kevin
Benson (argued), Senior Deputy Attorney General, Nevada
Office of the Attorney General, Carson City, Nevada,
for Defendants-Appellees.
4 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE
OPINION
W. FLETCHER, Circuit Judge:
The plaintiffs in this case are three civil rights
organizations, National Council of La Raza (“NCLR”) and
the Las Vegas and Reno-Sparks chapters of the NAACP
(collectively, “Plaintiffs”). They appeal the dismissal with
prejudice of their complaint, which alleges that Nevada’s
Secretary of State and Director of the Department of Health
and Human Services (collectively, “Nevada” or “the State”)
have violated, and continue to violate, Section 7 of the
National Voter Registration Act of 1993 (“NVRA”). Section
7 requires states to distribute voter registration materials and
to make assistance available to people who visit, and make
certain requests of, public assistance offices. We must decide
whether Plaintiffs have Article III and statutory standing to
bring suit. We hold that they do and reverse the district
court’s dismissal of their complaint.
I. Facts and Procedural Background
A. The NVRA
Section 7 of the NVRA is part of a comprehensive statute
designed to facilitate voter registration. The section seeks to
increase registration of “the poor and persons with disabilities
who do not have driver’s licenses and will not come into
contact with the other princip[al] place to register under this
Act[, motor vehicle agencies].” H.R. Rep. No. 103-66, at 19
(1993), reprinted in 1993 U.S.C.C.A.N. 140, 144. To
accomplish this goal, Section 7 requires states to designate
public assistance offices as voter registration agencies.
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 5
52 U.S.C. § 20506(a)(2)(A).1 Voter registration agencies are
required to “distribute” voter registration application forms
with each application for assistance. They are also required
to “ma[k]e available” assistance in filling out voter
registration application forms to any person who applies for
public assistance or seeks recertification, renewal, or change
of address, unless that person declines in writing to register
to vote. Id. § 20506(a)(4)(A)(i)–(iii),(a)(6). Nevada law
implementing the NVRA further obligates public assistance
offices to post in conspicuous places signs informing their
clients that they can register to vote and instructing them how
to do so. See Nev. Rev. Stat. § 293.504; Nev. Admin. Code
§ 293.410.
The NVRA creates a private right of action for “[a]
person who is aggrieved by a violation of [the NVRA].”
52 U.S.C. § 20510(b); see also 138 Cong. Rec. 10,736 (1992)
(statement of Sen. Wendell Ford) (explaining that the
language providing for a private cause of action substituted
“person” for “individual” to “permit organizations as well as
individuals, and the Attorney General to bring actions under
the act”). The statute includes a notice provision that requires
an aggrieved person, in most circumstances, to notify state
officials of possible violations of the statute before filing suit.
See 52 U.S.C. § 20510(b)(1). Whether the aggrieved person
is required to give notice and how long the person must wait
to file suit after giving notice depends on the timing of the
next federal election. When the violation upon which a suit
is based occurs a substantial time before the next federal
election, the aggrieved person must notify the state of the
alleged violation and must then wait 90 days before filing
1
The NVRA was codified at the time of the complaint at 42 U.S.C.
§ 1973gg. It is now codified at 52 U.S.C. §§ 20506–20511.
6 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE
suit. Id. § 20510(b)(1)–(2). However, “if the violation
occurred within 120 days” of a federal election, the aggrieved
person must wait only 20 days after notifying the state before
bringing suit. Id. § 20510(b)(2). “If the violation occurred
within 30 days” of a federal election, the aggrieved person
does not need to give any notice before bringing suit. Id.
§ 20510(b)(3).
B. The Notice Letter
On May 10, 2012—thirty-three days before a federal
primary election—Plaintiffs sent a letter to Nevada’s
Secretary of State alerting him that, in the view of Plaintiffs,
the State was violating the public assistance provisions of
Section 7. The letter stated that “Nevada is not in compliance
with Section 7” and “is systematically failing to provide the
voter registration services mandated by the NVRA at its
public assistance offices.”
The letter provided substantial evidence in support of its
allegations. First, it cited data from the U.S. Election
Assistance Commission. The data showed that the number of
voter registration applications submitted to Nevada public
assistance offices “decreased precipitously”—by 95% from
2001–2002’s high point to 2009–2010’s low point—despite
a four-fold increase in the number of food stamp applications
during this period. Second, the letter cited U.S. Census
Bureau data from 2010, which showed that only 47.6% of
low-income Nevadans were registered to vote, compared to
72.4% of high-income Nevadans. Third, the letter presented
the results of field investigations Plaintiffs conducted in
December 2011, approximately five months before they sent
the letter. Plaintiffs’ investigators visited Nevada public
assistance offices and surveyed the clients and clerks of those
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 7
offices. They discovered that clerks in seven of nine offices
they visited provided voter registration application forms only
to people who affirmatively requested them. Office staff
indicated that this was “standard procedure.” Of the clients
surveyed, only one out of the five who affirmatively
requested a voter registration application form received one.
Two of the nine offices did not have voter registration
application forms at all. Only nine out of the 51 clients
surveyed received voter registration application forms with
their benefits applications or other forms. Only two of nine
sites displayed the notifications required by state law.
Based on this evidence, the letter concluded that Nevada
is not complying with the NVRA and informed the Secretary
of State that unless the State took corrective action, Plaintiffs
would “have no alternative but to initiate litigation at the
conclusion of the statutory 20-day waiting period.”
C. The Complaint
On June 11, 2012—thirty-two days after Plaintiffs sent
their notice letter and one day before the impending federal
primary election—Plaintiffs filed a complaint in district court
seeking declaratory and injunctive relief. The complaint
alleges that “Defendants have violated, and unless enjoined
will continue to violate, Section 7 of the NVRA.” It alleges
further that “widespread ongoing noncompliance” with, and
“systemic violations” of, Section 7 are “caused by flawed
practices and policies, insufficient oversight and inadequate
enforcement.” The complaint alleges specifically that “[t]he
violations of the NVRA described in the notice letter have not
been remedied.” In support of its allegations, the complaint
repeats the evidence previously laid out in the notice letter.
8 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE
The complaint describes plaintiff NCLR as “the largest
national Latino civil rights and advocacy organization in the
United States.” According to the complaint,
NCLR regularly has conducted and continues
to conduct voter registration drives in the
State of Nevada . . . . NCLR conducts voter
registration activities in two ways. The first is
through attending community events such as
music festivals, sporting events, cultural fairs
and national holidays and registering people
as they congregate in crowds. NCLR also
registers people to vote going door-to-door
....
The complaint alleges that Nevada’s violation of Section 7
has caused NCLR to expend additional resources in
performing its voter registration mission: “Due to defendants’
ongoing violations of the NVRA, NCLR has expended
additional resources, including staff and volunteer time, on
efforts to assist individuals with voter registration (including
updating prior voter registration) who should have been
offered voter registration through Nevada’s public assistance
offices.”
The complaint describes plaintiffs Las Vegas NAACP
and Reno-Sparks NAACP as organizations that “seek[] to
achieve equality of rights in and around” Las Vegas and
Reno-Sparks. According to the complaint, these plaintiffs
“especially encourage[] participation in federal and state
elections by traditionally underrepresented groups.” Both of
these plaintiffs allege that Nevada’s violation of Section 7 has
caused them to expend additional resources in performing
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 9
their voter registration missions. The complaint alleges as to
plaintiff Las Vegas NAACP,
If public assistance offices throughout Nevada
were complying with the requirements of the
NVRA, the Las Vegas NAACP would expend
fewer resources on voter registration drives in
communities where DHHS [Nevada
Department of Health & Human Services]
clients should be offered voter registration
opportunities at DHHS offices. But for
defendants’ violations of Section 7 of the
NVRA, the Las Vegas NAACP would be able
to allocate substantial resources to other
activities central to its mission.
The complaint alleges the same thing as to plaintiff Reno-
Sparks NAACP.
In addition, the complaint alleges that individual members
of plaintiffs Las Vegas and Reno-Sparks NAACP have been
and will be harmed by Nevada’s failure to comply with
Section 7 because their members “have not been and will not
be offered the opportunity to register to vote through DHHS
offices.” Such members include those “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.”
The complaint does not identify the members by name.
10 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE
D. Answer and Motion to Dismiss
The State filed an answer and a motion to dismiss on June
3, 2012. In its answer, the State denied that the district court
had subject matter jurisdiction. In its motion to dismiss, the
State contended that Plaintiffs did not comply with the notice
provision of Section 7 because the alleged violations
described in the complaint occurred in December 2011, when
Plaintiffs conducted their field investigations. The State
contended that because the violations were discovered more
than 120 days before the federal primary election in June
2012, Plaintiffs were obligated to give the State 90 instead of
20 days to respond to their letter before filing suit.
E. Preliminary Injunction and Plaintiffs’ Opposition to
Motion to Dismiss
Plaintiffs moved for a preliminary injunction on July 6,
2012, and submitted a memorandum opposing the State’s
motion to dismiss two weeks later. Plaintiffs attached both to
their motion and to their memorandum declarations from
individuals who are eligible to vote, who visited public
assistance offices on June 19 and 20, 2012 (after Plaintiffs
filed their complaint), and who were not given the
opportunity to register to vote. Plaintiffs also attached to the
memorandum policy manuals from the Nevada Department
of Health and Human Services instructing public assistance
clerks to interpret an applicant’s failure to fill out the voter
registration section of a benefits application as a declination
to register to vote. Plaintiffs asked the district court to grant
leave to amend their complaint to add allegations and
supporting declarations of more recent violations if the court
believed the complaint warranted dismissal without them.
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 11
The district court scheduled a hearing on the State’s
motion to dismiss and Plaintiffs’ motion for a preliminary
injunction for October 9, 2012. This date was three days after
the deadline to register to vote in the November 2012 general
election.
F. Pro Hac Vice Applications
In August 2012, eight attorneys representing Plaintiffs pro
bono filed applications with the district court to practice pro
hac vice in Nevada. The State did not oppose the
applications. Despite the State’s failure to oppose, the district
judge scheduled a hearing on the applications. At the
hearing, the district judge indicated that he had not read the
complaint and that he intended to deny six of the applications.
He remarked that he was “not obligated to admit pro hac vice
a lot of New York lawyers who in essence are representing
their own interests, their own law firms’ interests, rather than
even the plaintiff that they represent.” He observed that Mr.
Wicker, the Nevada lawyer who was representing Plaintiffs,
was “very competent.” Mr. Wicker said that he appreciated
the compliment, but responded,
I have never pursued one of these Voter
Registration Act cases, and I think that the
public interest groups . . . have pooled their
resources to pursue these cases nationwide.
. . . [I]t is a specialized area where I think the
help of these public interest agencies and
national counsel, Mr. Steiner . . . , are very
important to represent the rights of the
plaintiffs in this matter.
12 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE
The district judge responded that lawyers not admitted pro
hac vice could help write briefs. Mr. Steiner expressed
concern that if an associate from his office who had not been
admitted pro hac vice took a deposition that would “put us at
risk of violating Nevada unauthorized practice rules.” The
judge responded, “That’s true.”
At the end of the hearing the district judge announced his
intention to grant petitions for admission pro hac vice for
only two attorneys—one for NCLR and one for the two
NAACP chapters—and gave the Plaintiffs a week to decide
among themselves which attorneys to put forward. A week
later, Plaintiffs moved for reconsideration of the eight
applications or, alternatively, for approval of two attorneys
chosen by Plaintiffs. So far as the record shows, the district
court did not rule on this motion.
G. Dismissal with Prejudice
On August 29, 2012, the parties filed stipulations in the
district court under which the State withdrew its motion to
dismiss and Plaintiffs withdrew their motion for a preliminary
injunction. The district judge then vacated the scheduled
hearing on the motions. In December 2012, without referring
to the parties’ stipulations, the district judge granted with
prejudice Nevada’s withdrawn motion to dismiss and denied
as moot Plaintiffs’ withdrawn motion for a preliminary
injunction. The judge gave two reasons for the dismissal.
First, the district judge held sua sponte that Plaintiffs
lacked standing under Article III. He concluded that
Plaintiffs lacked organizational standing because they had not
shown that they suffered an injury fairly traceable to the
State. Second, the district judge held that Plaintiffs lacked
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 13
statutory standing because they complained of violations that
they knew about in December 2011, when they discovered
them in the course of their field investigations. He concluded
that since these violations occurred more than 120 days
before the then-pending federal primary election in June,
Plaintiffs were required to give the State 90 days to respond
before filing suit. The district judge rejected Plaintiffs’
allegation that the violations—which were alleged to be
systematic and ongoing—were still occurring on May 10,
when Plaintiffs sent their notice letter stating that the State
was then violating the NVRA, as well as on June 11, when
Plaintiffs filed their complaint alleging the same thing.
According to the district judge, Plaintiffs’ decision to send
the notice letter within 120 days of a federal election was due
to an “ulterior motive.” It was a “tactic[] of delaying” that
“violates the purpose of the NVRA’s notice provision; which
is to provide notice of violations long before election day so
the state can investigate and cure them without the delay and
expense of litigation.”
Despite holding that Plaintiffs lacked Article III and
statutory standing, the district judge went on, in dictum, to
discuss “for the record” the merits of Plaintiffs’ motion for a
preliminary injunction. The judge concluded that, assuming
standing, Plaintiffs had not plausibly alleged that the State
was engaged in ongoing violations of Section 7 at the time
they filed their complaint.
Plaintiffs timely appealed the dismissal.
II. Standard of Review
We review de novo a district judge’s dismissal for lack of
Article III and statutory standing, presuming that all facts
14 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE
alleged in the complaint are true. Vaughn v. Bay Envtl.
Mgmt., Inc., 567 F.3d 1021, 1024 (9th Cir. 2009).
III. Discussion
A. Article III Standing
We disagree with the district court’s conclusion that
Plaintiffs lack Article III standing. The standing
requirements of Article III are familiar. A plaintiff must
show that (1) he or she has suffered a “concrete and
particularized” injury to a cognizable interest, (2) which is
“fairly traceable to the challenged action of the defendant”
and (3) which likely can be redressed by a favorable decision.
Bennett v. Spear, 520 U.S. 154, 167 (1997); see also Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). In
deciding whether a plaintiff has made this showing, we
“accept as true all material allegations of the complaint” and
“construe the complaint in favor of the complaining party.”
Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011)
(quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)).
All three plaintiffs allege that Nevada’s failure to comply
with Section 7 of the NVRA has caused them to expend
additional resources, and that “but for” the State’s failure they
would have spent these resources to accomplish other aspects
of their organizational missions, such as voter education and
registering voters not covered by the NVRA. The district
judge concluded that this was not a sufficient allegation of
injury in fact and causation. In his view, Plaintiffs failed to
allege that Nevada’s failure to comply with Section 7 had
changed their behavior in any way.
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 15
As to plaintiff NCLR, the district judge noted that
“Plaintiff NCLR claims it has expended additional resources,
including staff and volunteer time, on efforts to assist
individuals with voter registration.” Despite his recognition
that plaintiff NCLR alleged in the complaint that it had
expended additional resources, the district judge concluded
that it had not changed its behavior. He wrote,
Because registering Hispanic American voters
is an admitted tenet of NCLR, and it regularly
has conducted voter registration drives, NCLR
has failed [to] show any “concrete and
particularized” facts that they have conducted
any voter registration drives other than what
they would have done had Nevada been in
compliance with the NVRA.
As to plaintiffs Las Vegas and Reno-Sparks NAACP, the
district judge noted that, like plaintiff NCLR, they alleged
that they expended extra resources registering voters as a
result of Nevada’s alleged failure to comply with Section 7.
He nevertheless concluded that the two NCAAP chapters had
failed to allege that they had changed their behavior. He
wrote,
It is plausible that [the] NAACP branches
have suffered harm of having to focus their
drives in low-income communities if they
would have otherwise focused elsewhere,
which they claim. However, they state that
low-income communities have been the focus
of their “numerous” drives during the past
three years. It appears, based on [the]
NAACPs’ own declarations, they were doing
16 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE
business as usual; whether Nevada was in
compliance or not.
The district judge’s conclusion that Plaintiffs lack Article
III standing because they did not change their behavior is
based on a misreading of the complaint. The complaint,
portions of which we have quoted above, clearly alleges that
Plaintiffs changed their behavior as a result of Nevada’s
alleged violation of Section 7. The complaint specifically
alleges that Plaintiffs expended additional resources that they
would not otherwise have expended, and in ways that they
would not have expended them. For example, the complaint
alleges that plaintiff NCLR “expended additional resources
. . . on efforts to assist individuals with voter registration . . .
who should have been offered voter registration through
Nevada’s public assistance offices.” It further alleges that
plaintiffs Las Vegas and Reno NAACP would spend “fewer
resources on voter registration drives in communities where
DHHS clients should be offered voter registration
opportunities at DHHS offices. But for defendants’
violations of Section 7,” Plaintiffs “would be able to allocate
substantial resources to other activities central to [their]
mission[s].”
The Supreme Court has made clear that injuries of the sort
that Plaintiffs allege are concrete and particular for purposes
of Article III. See Havens Realty Corp. v. Coleman, 455 U.S.
363, 379 (1982) (“Such concrete and demonstrable injury to
the organization’s activities—with the consequent drain on
the organization’s resources—constitutes far more than
simply a setback to the organization’s abstract social interests
. . . .”). The Court has also made clear that a diversion-of-
resources injury is sufficient to establish organizational
standing at the pleading stage, even when it is “broadly
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 17
alleged.” Id. at 379 (“If, as broadly alleged, [defendants’]
steering practices have perceptibly impaired [plaintiff
organization’s] ability to provide counseling and referral
services for low- and moderate-income homeseekers, there
can be no question that the organization has suffered injury in
fact.”); see also Lujan, 504 U.S. at 561 (“At the pleading
stage, general factual allegations of injury resulting from the
defendant’s conduct may suffice, for on a motion to dismiss
we presum[e] that general allegations embrace those specific
facts that are necessary to support the claim.” (internal
quotation marks omitted)).
Resources Plaintiffs put toward registering someone who
would likely have been registered by the State, had it
complied with the NVRA, are resources they would have
spent on some other aspect of their organizational
purpose—such as registering voters the NVRA’s provisions
do not reach, increasing their voter education efforts, or any
other activity that advances their goals. Contrary to the
district judge’s view, Plaintiffs have not alleged that they are
simply going about their “business as usual,” unaffected by
the State’s conduct. See Fair Hous. Council of San Fernando
Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir.
2012) (holding that plaintiff organizations have standing to
sue to stop a roommate-matching website from discriminating
because they undertook a campaign against discriminatory
roommate advertising, even though their ordinary business
includes investigating and raising awareness about housing
discrimination). We have no difficulty concluding that
Plaintiffs have adequately alleged that the injury they suffer
is attributable to the State. See, e.g., Georgia State
Conference of NAACP v. Kemp, 841 F. Supp. 2d 1320, 1336
(N.D. Ga. 2012) (finding that plaintiff’s allegations that it
expended resources, which it would have used on other
18 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE
projects, to register people who should have been registered
by the state “plainly satisfy the injury prong of the Article III
test for standing”); Nat’l Coal. for Students with Disabilities
Educ. & Legal Def. Fund v. Scales, 150 F. Supp. 2d 845, 850
(D. Md. 2001) (finding that “the allegations that the
[defendant]’s noncompliance frustrates these goals and
requires the organization to expend resources in facilitating
the registration of disabled persons that they otherwise would
spend in other ways is sufficient to show an actual or
threatened injury in fact that is fairly traceable to the alleged
illegal action and is likely to be redressed by a favorable court
decision ordering injunctive relief”).
The complaint also alleges that members of the two
NAACP chapters suffered injury as a result of Nevada’s
failure to comply with Section 7. Citing Summers v. Earth
Island Institute, 555 U.S. 488 (2009), the district judge held
that the chapters’ members “must be specifically identified”
in order for the chapters to satisfy Article III standing. We
are not convinced that Summers, an environmental case
brought under the National Environmental Policy Act, stands
for the proposition that an injured member of an organization
must always be specifically identified in order to establish
Article III standing for the organization. The Summers Court
refused to find standing based only on speculation that
unidentified members would be injured by a proposed action
of the National Forest Service. Id. at 498–99. Where it is
relatively clear, rather than merely speculative, that one or
more members have been or will be adversely affected by a
defendant’s action, and where the defendant need not know
the identity of a particular member to understand and respond
to an organization’s claim of injury, we see no purpose to be
served by requiring an organization to identify by name the
member or members injured.
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 19
However, even if Summers and other cases are read to
require that an organization always identify by name
individual members who have been or will be injured in order
to satisfy Article III, the district judge erred in dismissing the
complaint without granting leave to amend. The State agrees
that leave to amend should have been granted. Plaintiffs had
specifically requested (though such a request was not
necessary) permission to amend if their complaint was held
insufficient. It is black-letter law that a district court must
give plaintiffs at least one chance to amend a deficient
complaint, absent a clear showing that amendment would be
futile. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
1048, 1052 (9th Cir. 2003) (“Dismissal with prejudice and
without leave to amend is not appropriate unless it is clear on
de novo review that the complaint could not be saved by
amendment.”); see also Foman v. Davis, 371 U.S. 178, 182
(1962) (“In the absence of any apparent or declared
reason—such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc.—the leave sought should, as the
[Federal Rules of Civil Procedure] require, be ‘freely
given.’”). The Supreme Court has recently confirmed
(though such confirmation was hardly needed) that a
membership organization should have the opportunity to
provide evidence that bolsters its claim of associational
standing when the organization reasonably believes, “in the
absence of a state challenge or a court request for more
detailed information,” that “it need not provide additional
information such as a specific membership list.” Alabama
Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1269
(2015).
20 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE
B. Statutory Standing
As a threshold matter, Plaintiffs contend that the district
judge abused his discretion by granting, sua sponte, Nevada’s
withdrawn motion to dismiss on the ground that Plaintiffs
lack statutory standing. Such an action by the district court,
it hardly needs saying, was unusual. However, because we
conclude on the merits that the district court erred in
dismissing the complaint, we need not address Plaintiffs’
contention beyond noting the unusual nature of the district
judge’s action.
In relevant part, the notice provision of the NVRA
provides:
(b) Private right of action
(1) A person who is aggrieved by a
violation of this chapter 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 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
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 21
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).
52 U.S.C. § 20510(b).
The district judge held that Plaintiffs did not provide
timely notice under the NVRA and therefore lacked standing
under the statute. The State makes two arguments seeking to
justify the dismissal for lack of statutory standing. First, the
State argues that Plaintiffs’ letter did not identify any
violations of the NVRA occurring within 120 days of a
federal election, and therefore Plaintiffs were required to give
the State 90 days to cure, rather than the 20 days Plaintiffs
actually gave. Second, the State argues that Plaintiffs did not
qualify for the statute’s exception to the notice requirement
because Plaintiffs did not plausibly allege in the complaint,
which Plaintiffs filed within 30 days of a federal election, that
the State was currently violating Section 7. Both arguments
rest on the same premise—that there was no reason to believe
that the violations Plaintiffs identified in their December
2011 field investigations were still occurring in May 2012,
when Plaintiffs sent their letter, and in June 2012, when
Plaintiffs filed their complaint. We disagree with the
premise.
In their May 10, 2012 letter, Plaintiffs wrote that Nevada
was engaged in systematic and ongoing violations of Section
7 of the NVRA. Some of their evidence came from their
December 2011 field investigations. Plaintiffs provided
written notice to Nevada under paragraph (1) of § 20510(b)
about six months after completing their field investigations.
Their May 10 notice was provided “within 120 days before
22 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE
the date of the next election for Federal office,” which was to
take place on June 12, 2012. If Plaintiffs had provided notice
of discrete violations that had occurred more than 120 days
before June 12, but had not occurred thereafter, they would
have had to wait 90 days from the date of their notice before
bringing suit. But because they provided notice within the
120-day period before June 12 and alleged in their notice that
the violations were ongoing, they needed to wait only 20 days
before bringing suit.
In their June 11, 2012 complaint, Plaintiffs alleged that
the violations they described in their letter had not been
remedied. The complaint was filed one day before a federal
election. As in their letter, Plaintiffs pointed to the December
2011 field investigations and alleged that the systematic
violations they discovered in December were ongoing.
Because Plaintiffs plausibly alleged that the State was
violating the statute within 30 days of a federal election, they
were not required to give the State any prior notice of, or
opportunity to cure, the violations alleged in the complaint.
The district judge faulted Plaintiffs for not providing
notice when they completed their field investigations in
December 2011. Because Plaintiffs had not provided notice
when they discovered the alleged violations, he refused to
credit the allegations in the complaint that the violations were
ongoing as of the date of Plaintiffs’ May 10 notice letter or as
of the date of the June 11 complaint. He wrote, “If Plaintiffs
would have sent notice to [Nevada’s Secretary of State]
immediately after the December investigation, then Plaintiffs
could have reasonably argued that the violations were still
ongoing as of the notice.” That is, because Plaintiffs did not
send their notice letter in December, as soon as they
discovered the alleged violations through their field
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 23
investigations, the district judge refused to believe that they
were ongoing violations that continued to occur in May and
June. Nevada argues that the district judge was correct in
refusing to believe that Plaintiffs had properly alleged that the
violations, discovered in December, continued in May and
June.
The district judge erred in concluding that the alleged
violations were not plausibly alleged to be ongoing during the
120-day and 30-day periods before the June 12 election. For
example, the complaint alleges that it was “standard
procedure” for office staff not to ask assistance clients if they
wished to register to vote. The complaint alleges that in each
office visited by the investigators, “the clerks stated that voter
registration applications are provided only to clients who
check ‘Yes’ in response to the question whether they ‘would
. . . like to register to vote here today,’ despite the NVRA . . .
requirement that all persons engaging in covered transactions
receive a voter registration form application unless they
specifically decline, in writing, to receive such an
application.” The complaint further alleges that two of the
public assistance offices visited “did not have any voter
registration applications to provide to clients who engaged in
transactions covered by the NVRA.” One of the offices had
not had voter registration application forms for over a year.
Another office had not had the forms for over two years.
Finally, the complaint alleged, “The violations of the NVRA
described in the notice letter have not been remedied.”
It is impossible to read these allegations and to conclude
that there is no reasonable possibility that some of the
violations Plaintiffs uncovered in December were continuing
as of the dates of the notice and the complaint. Indeed, given
the extent and nature of the violations discovered in
24 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE
December it is likely, not merely plausible, that some,
perhaps all, of the violations were continuing in May and
June. See Levitt v. Yelp! Inc., 765 F.3d 1123, 1134–35 (9th
Cir. 2014) (stating that to survive a motion to dismiss for
failure to state a claim following the Supreme Court’s
decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Plaintiffs’
factual allegations “must . . . suggest that the claim has at
least a plausible chance of success.”) (quoting In re Century
Aluminum Co. Sec. Litig., 729 F.3d 1104, 1107 (9th Cir.
2013)); Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir.
2013) (“A claim is facially plausible ‘when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.’” (quoting Iqbal, 556 U.S. at 678)).
Perhaps recognizing the weakness of the justification
advanced by the district judge, the State tries to justify the
dismissal on a different ground. The State argues that it is not
enough for a notice or complaint to describe an ongoing
violation and then to use the date of the notice or complaint
as the relevant date under the statute’s notice provision. The
State argues in its brief to us that “a discrete violation within
the applicable time period must be alleged.” The State does
not define what it means by “discrete violation,” but we infer
that the State means a violation that has been actually
observed during the applicable time period. We disagree with
the State.
A plaintiff can satisfy the NVRA’s notice provision by
plausibly alleging that a ongoing, systematic violation is
occurring at the time the notice is sent or, if no notice is sent,
when the complaint is filed within 30 days of a federal
election. Neither the notice nor the complaint needs to
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 25
specify that the violation has been actually observed, and that
there is thus a “discrete violation,” during the 120-day or 30-
day period. It is enough that the notice letter and the
complaint plausibly allege the existence of an ongoing
violation within the appropriate time period, whether or not
it was “discrete” during the period. See, e.g., Scott v.
Schedler, 771 F.3d 831, 834, 840 (5th Cir. 2014) (leaving
“intact the district court’s determination that the NAACP has
complied with the notice requirement” by alleging
“systematic and ongoing violations of several provisions of
Section 7 of the NVRA”); see also Arcia v. Florida Sec’y of
State, 772 F.3d 1335, 1339 (11th Cir. 2014) (remanding to the
district court to grant summary judgment to plaintiffs
challenging a state’s program that systematically removed
suspected non-citizens from the voter rolls within 90 days of
a federal election); Valdez v. Squier, 676 F.3d 935, 939 (10th
Cir. 2012) (upholding the grant of summary judgment for a
plaintiff who alleged that a state’s policy caused “ongoing
violations” of the NVRA).
The State argues that it would frustrate the purpose of the
notice provision to permit aggrieved persons to file
complaints alleging ongoing, systematic violations of the
NVRA within 120 or 30 days of a federal election when they
knew about the violations earlier. The State, like the district
judge, is concerned that a plaintiff can avoid giving state
officials notice and an adequate opportunity to cure simply by
waiting to provide notice until 120 or 30 days before a federal
election. To some degree, we are sympathetic with this
concern. If plaintiffs discovered NVRA violations in
December and waited six months to file suit, finally doing so
on the day before the primary election, it is reasonable to
suspect that Plaintiffs may have been seeking not only the
long-term benefit of correction of the NVRA violations but
26 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE
also the short-term benefit of the publicity obtained from
filing suit the day before voters go to the polls. This concern,
however, does not alter the meaning and operation of the
NVRA.
We have two responses. First, we cannot rewrite the
statute to avoid this consequence, for the statute expressly
permits it. See Hartford Underwriters Ins. Co. v. Union
Planters Bank, N.A., 530 U.S. 1, 6 (2000) (“[W]hen the
statute’s language is plain, the sole function of the courts—at
least where the disposition required by the text is not
absurd—is to enforce it according to its terms.” (internal
quotation marks omitted)); Am. Tobacco Co. v. Patterson,
456 U.S. 63, 68 (1982) (“[W]e assume that the legislative
purpose is expressed by the ordinary meaning of the words
used.” (internal quotation marks omitted)). Second, the
temptation to engage in strategic delay may not be as great as
the State and the district judge appear to believe. Plaintiffs
who seek compliance with Section 7 have good reason to air
their concerns long before the 120- and 30-day clocks begin
to run. Such plaintiffs are interested in maximizing voter
registration. It hardly serves plaintiffs’ voter registration
purpose to delay notification of the State, for the sooner the
State comes into compliance, the more voters will be
registered. Waiting to file a complaint threatens to frustrate
plaintiffs’ voter registration purpose, for a late filing
diminishes the likelihood that they will secure meaningful
relief before voter registration closes.
C. Leave to Amend
We hold, for the reasons given above, that Plaintiffs’
complaint satisfied both Article III and statutory standing.
However, assuming for the moment that the complaint was
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 27
deficient, the district judge abused his discretion by
dismissing Plaintiffs’ complaint for lack of standing without
giving Plaintiffs an opportunity to amend. A “district court
may exercise its discretion to deny leave to amend due to
‘undue delay, bad faith or dilatory motive on part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party
. . . , [or] futility of amendment.’” Carvalho v. Equifax Info.
Servs., LLC, 629 F.3d 876, 892 (9th Cir. 2010) (quoting
Foman, 371 U.S. at 182). However, “[a] simple denial of
leave to amend without any explanation by the district court
is subject to reversal.” Eminence Capital, 316 F.3d at 1052.
“Such a judgment is ‘not an exercise of discretion; it is
merely abuse of that discretion . . . .’” Id. (quoting Foman,
371 U.S. at 182).
D. Reassignment
Plaintiffs have asked, in the event we reverse and remand,
that we assign this case to a different district judge. We
reassign only in “‘rare and extraordinary circumstances,’”
Krechman v. Cnty. of Riverside, 723 F.3d 1104, 1112 (9th
Cir. 2013) (quoting United Nat’l Ins. Co. v. R&D Latex
Corp., 242 F.3d 1102, 1118 (9th Cir. 2001)), such as when
the district court “has exhibited personal bias,” In re Ellis,
356 F.3d 1198, 1211 (9th Cir. 2004) (en banc) (quoting
United Nat’l Ins. Co., 242 F.3d at 1118), or when
“reassignment is advisable to maintain the appearance of
justice.” United States v. Kyle, 734 F.3d 956, 966–67 (9th
Cir. 2013) (quoting United States v. Lyons, 472 F.3d 1055,
1071 (9th Cir. 2006)).
We reluctantly conclude that we must reassign this case.
The errors made by the district judge may suggest to a
28 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE
reasonable outside observer that reassignment “to maintain
the appearance of justice” is necessary. The reasons for our
conclusion are apparent from what we have written above,
and we review them only briefly here. The judge sua sponte
sought to limit the effectiveness of representation by insisting
unreasonably that only two of Plaintiffs’ chosen out-of-state
attorneys be given pro hac vice status. See In re United
States, No. 14-70486, 2015 WL 3938190, at *8 (9th Cir. June
29, 2015) (“At minimum, a court’s decision to deny pro hac
vice admission must be based on criteria reasonably related
to promoting the orderly administration of justice, or some
other legitimate policy of the courts.” (citations omitted)).
The judge did this despite the plea of Plaintiffs’ Nevada
lawyer that he needed the expert assistance of out-of-state
counsel who specialize in NVRA litigation, and over the
objection of one of the would-be out-of-state counsel that the
judge’s ruling would prevent depositions from being taken in
Nevada by associates in his firm. The judge’s actions came
very shortly after the Ninth Circuit had deemed “troubling”
his comments regarding out-of-state counsel in another case
involving a different Nevada agency. Henry A. v. Wilden,
678 F.3d 991, 1012 (9th Cir. 2012). Based on this and other
cases, a reasonable observer could conclude that the judge’s
feelings against out-of-state attorneys are both well-
established and inappropriately strong. See Great Basin Res.
Watch v. United States Dep’t of the Interior, No. 3:13-CV-
00078-RCJ, 2014 WL 3697107, at *3 (D. Nev. July 23, 2014)
(this same judge expressly stated he would “presume[] that
the out-of-state lawyers are unwilling to obey the ethical
strictures that govern all other attorneys”). Further, the judge
sua sponte and without notice dismissed Plaintiffs’ case based
on a motion the State had previously withdrawn, pursuant to
a joint stipulation by the parties. Still further, the judge
misread the complaint when he concluded that Plaintiffs had
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 29
failed to allege that they had changed their behavior and had
thus suffered no injury, when Plaintiffs had alleged that they
had expended additional resources on voter registration as a
result of the State’s violation of Section 7. Finally, the judge
dismissed the complaint without leave to amend despite
Plaintiffs’ explicit request that they be allowed to amend their
complaint if the judge found its allegations insufficient.
Conclusion
Plaintiffs have satisfied the standing requirement of
Article III by plausibly alleging they have suffered injury in
fact fairly traceable to the State’s noncompliance with
Section 7 of the NVRA. Plaintiffs have also satisfied the
statute’s notice requirement in two ways. First, they notified
the State that violations were occurring 120 days before an
election, thus authorizing them to file suit after waiting 20
days from the date of their notification. Second, they
plausibly alleged that the State was violating Section 7 within
30 days of a federal election, thus permitting them to file suit
without first notifying the State (even though Plaintiffs in fact
had done so). We reverse the district court’s dismissal of the
complaint for lack of constitutional and statutory standing
and remand the matter for further proceedings consistent with
this opinion. We deny as moot Plaintiffs’ motion for judicial
notice. We instruct the Chief Judge of the District of Nevada
to assign the case to a different district judge.
REVERSED, REMANDED and REASSIGNED.