Chattah v. Cegavske (Ballot Issue)

IN THE SUPREME COURT OF THE STATE OF NEVADA
SIGAL CHATTAH, AN INDIVIDUAL, No. 85302
Appellant,
vs.
BARBARA K. CEGAVSKE, IN HER FILED
OFFICIAL CAPACITY AS NEVADA
SECRETARY OF STATE; AND JOHN T. SEP 2 9 2022
KENNEDY, AN INDIVIDUAL, TH A. BROWN
U EME COURT
Res • ondents. BY
DEPU Y CLERK
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a motion
for a preliminary injunction and application for a temporary restraining
order in an action challenging a candidate's qualifications for the Office of
Attorney General. First Judicial District Court, Carson City; James E.
Wilson, Judge."
Appellant is a candidate for Nevada attorney general, and in
district court she moved for a preliminary injunction to enjoin respondent
Secretary of State from including respondent John T. Kennedy's name on
the November ballot as the Libertarian Party's attorney general candidate
because Kennedy is not eligible for the office. The Secretary of State
opposed the motion to the extent that appellant sought relief beyond what
NRS 293.2045 permits when, as here, an elector files her challenge after the
statutory deadline for revising the general election ballot. Following a non-
'Pursuant to NRAP 34(0(1), we have determined that oral argument
is not warranted.
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evidentiary hearing, 2 the district court denied appellant's motion for a
preliminary injunction and application for a temporary restraining order.
To obtain a preliminary injunction, the movant must
"demonstrate that [she] has a reasonable likelihood of success on the merits
and that, absent a preliminary injunction, [she] will suffer irreparable harni
for which compensatory damages would not suffice." Excellence Cmty.
Mgrnt. Gilmore, 131 Nev. 347, 350-51, 351 P.3d 720, 722 (2015). "While the
moving party need not establish certain victory on the merits, [she] must
rnake a prima facie showing through substantial evidence that [she] is
entitled to the preliminary relief requested." Shores v. Glob. Experience
Specialists, Inc., 134 Nev. 503, 507, 422 P.3d 1238, 1242 (2018); see Coronet
Homes, Inc. v. Mylan, 84 Nev. 435, 437, 442 P.2d 901, 902 (1968) (observing
that in the absence of testimony, exhibits, or documentary material to
support a request for preliminary injunctive relief, such relief should be
denied).
Having reviewed the record and considered the parties'
arguments in light of these standards, the controlling law, and the type of
relief appellant requested, we conclude that the district properly denied
appellant's motion for a preliminary injunction. Excellence Crnty. Mgrnt.,
131 Nev. at 351, 351 P.3d at 722 (recognizing that Nevada appellate courts
will not reverse a district court decision denying preliminary injunctive
relief unless the district court abused its discretion, applied an erroneous
legal standard, or relied on clearly erroneous factual findings). Applying
the preliminary injunction standards, the district court correctly
2 Theparties agreed to have the district court decide the matter on the
briefing and arguments they made at district court conferences and without
an evidentiary hearing.
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determined that neither the statutes governing candidate challenges nor
any other law or equity required Kennedy's name to be removed from the
ballot after the statutory deadline for finalizing the ballots had passed.
The record supports the district court's conclusion that
appellant failed to show a sufficient likelihood of success on the merits to
justify the extent of relief sought (removal of Kennedy's name from the
general election ballot or having county election officials include an insert
with mail ballots regarding Kennedy's ineligibility for office). In particular,
appellant did not timely challenge Kennedy's candidacy in accordance with
governing statutes,3 and thus her rernedy was statutorily limited to signs
posted at polling places to notify voters of Kennedy's disqualification.4 NRS
293.2045(2) (providing that when a candidate's qualifications are
challenged after "the statutory deadline for making changes to the ballot
has passed," the appropriate remedy is to "post a sign at each polling place
3Appellant filed her challenge to Kennedy's candidacy 105 days after
the statutory deadline for doing so, and 4 days after the statutory deadline
for changing the ballot had passed.
4Appellant asked the court to afford a remedy the statute does not
allow on the ground that the available remedy at this point (signage at
polling places) is inadequate because voters using mail-in ballots will not
see such signs. That issue, however, is beyond the scope of this appeal,
which concerns only whether the district court abused its discretion in
denying injunctive relief based on the statutory remedies presently
available in preelection candidacy challenges, depending on when the
challenge is made. See NRS 293.2045(1), (2).
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where the person's name will appear on the ballot informing voters that the
person is disqualified from entering upon the duties of the office");5 see NRS
293.182(1) (providing a deadline for an elector to challenge a person's
qualifications for an office); see also NRS 293.165(4) (stating, in the context
of procedures to fill vacancies in nominations, that "[n]o change may be
made on the ballot for the general election after 5 p.m. on the fourth Friday
in July of the year in which the general election is held"); NRS 293.166(3)
(same in the context of procedures to fill vacancies in certain nominations).
In reaching that conclusion, the district court properly rejected
appellant's argument that it was the Secretary's burden to verify the
qualifications of every person who submits a declaration of candidacy.
Appellant's argument in that regard is based on an overreading of NRS
293.124(1), which provides that the Secretary "is responsible for the
execution and enforcement of the provisions of title 24 of NRS and all other
provisions of state and federal law relating to elections in this State." As
the district court concluded, the statutory scheme contemplates that the
Secretary will rely on the candidate's declaration, which is made under
penalty of perjury and includes a representation that the candidate is
qualified, see, e.g., NRS 293.177, and provides that the Attorney General or
5 Inmoving for a preliminary injunction, appellant did not seek relief
in the form of signs at polling places, although NRS 293.2045(2) allows for
such a remedy under the circumstances here. She likewise does not indicate
in her appellate brief that she was challenging the district court's order on
the basis that it did not enter a preliminary injunction requiring such
signage. We therefore do not further address the issue.
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District Attorney, not the Secretary, will investigate if an elector timely
challenges a candidate's qualifications, see NRS 293.182 (making it
incumbent on an elector to file a challenge within that statute's deadline).
As to the irreparable harm element, we perceive no abuse of
discretion in the district court's determination that the harm alleged was
speculative and could have been avoided by a timely challenge. See
Oakland Tribute, Inc. v. Chronicle Pub'g Co., 762 F.2d 1374, 1377 (9th Cir.
1985) (concluding that a "long delay before seeking a prelirninary injunction
implies a lack of urgency and irreparable harm"). Finally, we conclude that
the district court did not abuse its discretion in finding that the relative
hardships and public interest weighed against the preliminary injunctive
relief sought, as the court appropriately considered appellant's interest in
having voters decide between qualified candidates, the significant cost to
taxpayers for the extra-statutory remedies appellant sought given her delay
in challenging Kennedy's candidacy, and the Secretary of State's and
public's interest in having electors timely comply with election statutes.6
Univ. and Crnty. Coll. Sys. of Nev. v. Nevadans for Sound Gov't, 120 Nev.
712, 721, 100 P.3d 179, 187 (2004) (recognizing that, in considering a
preliminary injunction, courts also "weigh the potential hardships to the
relative parties and others, and the public interest").
6Appellant's argument regarding hearsay evidence, assuming she
raised this argument below, does not warrant reversal, particularly when
appellant, as plaintiff, had the burden of making a prima facie case in
support of the relief requested and she declined the opportunity to develop
a factual record through an evidentiary hearing.
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In sum, we conclude that the district court was within its
discretion to deny appellant's request for preliminary injunctive relief, and
we therefore
ORDER the judgment of the district court AFFIRMED.%
J.
arraguirre Hardesty
.414G4-12 , J. J.
Stiglich Cadish
Pickering Herndon
cc: Hon. James E. Wilson, District Judge
Joey Gilbert Law
Attorney General/Las Vegas
Gallian Welker & Beckstrom, LC/Las Vegas
Carson City Clerk
%The Honorable Abbi Silver, Justice, did not participate in the
decision of this matter.
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