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    Pigpen Project Writ of Mandamus Carson City

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    Jessica Hill
    Citizens Outreach Foundation lawsuit

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    Pigpen Project Writ of Mandamus Carson City

    Uploaded by

    Jessica Hill
    286 views43 pages
    Citizens Outreach Foundation lawsuit

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    Pigpen Project writ of Mandamus Carson City

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    Citizens Outreach Foundation lawsuit

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    Download as pdf
    286 views43 pages

    Pigpen Project Writ of Mandamus Carson City

    Uploaded by

    Jessica Hill
    Citizens Outreach Foundation lawsuit

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    CaseNo: Lid EW b0 10 18 RECs & FILED Dept. No mt SEP 20 PH 156 ‘THE O'MARA LAW FIRM, PC. David C.O°Mara, Eg, (NV Bar 8599) 311 E, Liberty Street Ye - PETERSON, Reno, Nevada 89501 7753231321 [email protected] Counsel for Petitioners INTHE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR CARSON CITY CITIZEN OUTREACH FOUNDATION, ARLES MUTH, individually, - ee PETITION FOR WRIT OF MANDAMUS: PURSUANT TO NRS 293.535 AND NRS. 293.530 FOR RESPONDENTS TO NOTIFY. ‘THE REGISTRANTS OF THE. CHALLENGE AND FOLLOW THE REQUIRMENTS OF NRS 293.530 Fetitioners, v Exempt from Arbitration + Action for Declaratory Relief + Action Presents a Significant Issue of Public Poliey SCOTT HOEN, in bis official capacity as lhe Carson City Clee and IMEINDLE, | Action Seeks Injunctive or Extraordinary in his official capacity as the Storey County Relief Clerk, Respondents Peitioners CITIZEN OUTREACH FOUNDATION ("Citizen Outteach) and! CHARLES MOUTH (°Mr. Mutt", Individually, submit this Petition for Writ of Mandamus to compel the Carson City and Story County Clerks *Clexks") to perform their dues as required by NRS 293.535 and NRS 283530 by requiring he Clerks to notify the registrant ofthe challenge and take the necessary actions as required under NRS 293.530, NATURE OF THE CASE (On or about July 29, 2024, Petitioners, and specifically, Mr. Muth, submited and filed propery prosessed challenges to alinst every Nevada County RepistariCletk, ineluding Carson City. At this time, several county clesks/egistas promptly and properly processed these challenges. Upon information and belief, the Carson City RegistrarClerk did not proess any of the efallengs fied (On August 27, 2024, the Nevada Secretary of Sint issued a private memorandum to [Nevada's 17 County Clerks and Registrars providing “guidance” on the “personal Iowiedge” required to challenge a registered voter pursuant to NRS 293.535 and NRS 293.547, See Exhibit ‘iile Petitioners had been working wth each County Registar/Clesk and provided updates and comespondence withthe Seeretary of Sate regarding Petitioners’ efforts in assisting the County RegistrarClesk with wsintaning the voter rolls, the memorandum was only issued to the Clesks/Regisrrs and was not provided to either Petitioner Petitioners wee never notified of the secret memorandum, or tha several Regisars/Clerks have folowec the Seretry of State's directive end have stopped processing he challenges ‘orcontauetorefse to process th challenges. ‘On September 8, 2024, Petitioners sent an “Open Letter to Nevada Secretary of State” to Secretary Aguilar sting forth Petionrs' response tothe private memorandum, and the telephone disussion between Mz. Muth and Secretary Aguilar. See Exhibit2 ‘As ofthe fling ofthis tigation, Petitioners have received no response from the Secretary ‘of State, but instead, received a response from the Attomey General’s Office stating, * 1 Weare in receipt of said written communications. As counsel for the Secretary. of ‘State's Office, we will review” these 2 ‘communications and, as needed, respond (o You. . 3 | See Bhibie 3. 8 On Seplember 10,2024, Petitioners sent correspondence to each dist atomey regarding te flue to process the challenges because ofthe memorandum issued by Cisco Aguila, Nevada Seertary of State, See Exhibit 4 9. Upon information and boli it appears that Humbolt County has rejected the Secretary of| State's dieeive and wll contnse to allow the propel filed challenges tobe processed According to Kevin Pasquale, Humboldt County District Attomey, he ‘gave my’ opinion to n ‘our County Clerk several weeks ago, I1eviewed that opinion earlier today further discussed 2 it with her, and see no reason to alter it.” = 10. Upon information and belief, it also appears that Lander County also properly processed io the valid chellenges. According to William E, Schaeffer, District Attorney for Lander 20 “Pershing County is in receipt of your Challenges from August 29" and September 10. cH Following guidance from my District Attorney, the Nevada Secretary of State, and the | = Nevada Attorney General's office, we will not be processing these chellenges at this time.” oe PARTIES : 15, Petitioner Citizen Outreach Foundation, isa S01(c)(3) non-partisan organization, based in Las Vegas, Novada, Citizen Outreach launched, whats called the Pigpen Project January 2023, with te primary objectives to identify suspected ineligible voters on Nevada's voter rolls, confine and document thes ineligibility, and work with focal and state election ‘ficils totemave them ftom the vote ists so ballots aren't mile to iividuals that are not eligible vote, 16, Respondents HOEN and HINDLE are responsible for maintaining Nevada's voter rolls and toensute the integrity of Nevada's letions. Pursuant fo NRS 293.535(2) when challenge tw a voter is filed, Respondents are required and mandated to “notify the registrant inthe ‘manner se fit in NRS 293,530 an sal enclose a copy ofthe affidavit” 17, Respondent HOEN and HINDLE are named in their official capacity only. JURISDICTION AND VENUE 16, This Court as juisdition tissue writs of mandamus pursuant Article 6, Setion 6 of the Nevada Constitution and NRS 34.160, “A wrt of mandamus is availabe to compel the performance oan act that the law requires as duty resting from an offi, tt o tation to contol a abiteary or capricious exercise of discretion.” Ful Game Tech, Ine.» ‘Second Judicial Dist. Cour, 124 Nev. 198,197,179 P.3d 586, 58 (2008). 19, This Cour is he proper venue a itis where the Respondents re located, (GENERAL FACTUAL ALLEGATIONS ‘Nevada Law Requires Respondent to Notify the Registrant upon receipt of an Affidavit 20, Under Nevads law, the register of voters or county clerks shall notify a resrant if any elector or other reliable person files an affidavit with the county clerk stating that: (6) The registrant as: (1) Moved outside the boundaries of the county where he or she is registered to another county, state, territory or foreign country, with the intention of remaining there for an indefinite time and with the intenton of abandoning his or her residence in the county where registered; and 2) Established residence in some other state, teritory or foreign county, or in some other county ofthis state, naming the place. ‘The affiant must state that be or she has personal knowledge of the facts sot forth in the affidavit See NRS 293 535(DQ0\DH2) emphasis ade), 21, “Upon the filing ofan affidavit pursuant to paragraph () of subsction 1, he county clerk shat sity the registrant inthe manner st forth in NRS 29.830 and shal enclose a copy ofthe affidevt. I the registrant ls o respond or appear to vote within the eguited time, the county clr sll canel the repistation.” See NRS 293.5350). 22."A county clk sal ance the regstaton of voter pursuant to this subsetion if (1) The county clerk mails a written notice to the voter which the ‘Unitec States Postal Service is required to forward; (2) The county clerk mails a return posteard with the notice wien has a place for the voter to write his or her new addtess, is addressed to the sounty clerk and has postage guaranteed; (G) The voter does not responds and (4) The voter does not appear to vote in an election before the polls have elosed inthe second general election following the date of the notice. See NRS 293.530(1}()(1)(4), 23. *"The county clerk shall maintain records of (1) Any notice mailed pursuant to paragraph (©); Any response to such notice; and (3) Whether a person to whom a notice is mailed ‘appears to vole in an election, for not less than 2 years afer ereation. See NRS 293.530 Xe) 24, “The county clerk shall use any posteards which are retumed to correc the portions ofthe statewide vote registration list which are relevant tothe county clerk.” See NRS 293.530(0, 10 " 2 B “4 15 16 "7 8 9 20 a 2 a 24 25 26 2 2% 25, Ifa voter fis to return the postcard mailed pursuant to paragraph (e) within 30 days, the county clerk shall designate the voter as inactive on the voter's application to register to vote, NRS 253,530(8). 126. A county cleek is not required to take any action pursuant fo this section in relation to a ‘person who prereisters to vote until the person is deemed to be registered to vole pursuant to subsection? of NRS 293.4855, 27.NRS 293.5333 Data concerning change of address of registered voter: Agreement with United States Postal Service or other authorized person foruse of data by county clerk, In ‘dition to tke methods deseribed in NRS 293.530, the county clerk in each county may ‘enter into an agroement with the United States Postal Service or any person authorized by it to obtain the data compiled by the United States Postal Service concerning changes of| ‘addresses ofits postal patrons for use by the county clerk to correct the portions of the statewide voter registration list relevant othe county clerk, 28. Carson City and the other Registrrs/Clerks must perform ther duties by mailing the notice 1 the challenged registrar atleast dirty three (33) days before the election or Carson City ‘will increase the time an invalid registrant is on Nevada’s voter roll coun Writ of Mandamus for Violation of the NRS 293. $35 and NRS 293.530 29, Petitioners vellege paragraphs 1 through 28 as if fully stated herein 30, As of August 28, 2024, Petitioner Muth filed in Carson City, Four Hundred Eighty (480) affidavits challenging the registrants pursuant to NRS 293.495. See Exhibit 5. (Challenge). 3 [In Carson City, Petitioners provided challenges to 180 registrants because they had moved from one Nevada County to another Nevada County; challenges to 244 registrants because 2, 3 ey 35. 36, 37. 3 39 they have mcved out of the State of Nevads; and challenges to 56 registants because they had moved ox of Nevada and registered to vote in another stat. 1a Storey County, Petitioner has provided challenges to 22 registrants because they have ‘moved from one Nevada County to another Nevada County, challenges to 18 registrants lenges to 4 registrants because because they have moved out ofthe State of Nevada; and they have moved out of Nevada and ate registered to vot in another stat. Petitions’ affidavit specially states hat Mr, Muth as “personal knowledge ofthe facts set forth’ in is afidavit and the information provided is ue and comes othe best of my noedge Petitioners scught compliance with NRS 293.495, but Respondents have refused 1 act ‘under NRS 293.538 and NRS 293.530, Petitioners athe Public wll continue to be injured by Respondents HOEN and HINDLE's failure (o act unless and ul deyaterequited to fulfil heir duties under Nevada lw Petitioners sek awit of mandamus requiting Respondents to notify cach regisant subject tothe challenges that have been ile, or thereafter, pursuant to NRS 293.530 Petitioners sek a declaratory judgment that Respondents are not in compliance with NRS 293.530 and 293.675, count DECLARATORY RELIEF Petitioners rellege paragraphs 1 through 38 as if uly stated herein [NRS 30.040() provides that "any person .. whose rights sttus or other legal relations ate affected bya state, municipal ordinance, contmt or fanchise, may have determined any question of construction or validity arising unde the instrument, statute, ordinance, contact of fmnhise and obtain a declaration of rights, status or other legal relations thereunder, 40, Upon receiving an affidavit challenging a regisrant pursuant to NRS 293.535, the CleeiRegistar must provide notes tothe registrant pursuant to NRS 293.530, 41. Despite these statutory requirements, Respondents have filed to properly process the valid challenges under NRS 293.535 and ses to d0 50. 42, Plants are zntitled to a declaratory judgment that upon the filing of an afivit, Nevada 1a quires the county clerk to “notify the registrant inthe mannerset forth in NRS 293.530, and shall enelbse a copy of the affidavit. Ifthe registrant fails to respond or appear to vote within the required time, the county clerk shall cancel the registration.” See NRS 293.535). COUNT I INJUNCTIVE RELIEF 43, Petitioners rellege paragraphs I through 42 as if ily stated herein 4, As alleged herein above, Patitioners have propery filed afidevits challenging several registrants pusuant to NRS 293.535, to which Respondents are refusing to process and provide notie tthe registrant pursuant to NRS 293.530 45. Respondens are able to delay and continue to refuse fo fulfill heir obligations under "Nevada Lav, NRS 293.535 and NRS 295.530, then Petitioners willbe ineparably harmed ‘because the challenges will not be procesed within a timely manner, and the invalid registrant will remain on Nevada's voter eolls for an adliional two years after the 2024 general election, The invalid registrant will not be removed, in some cases unt after the 2008 general lection, instead of the 2025 general election. 46, Petitioners enjoy a reasonable probability of sucess on the merits with respect to its claims asserted herein. 47. Petitioners arcentitled oa pretiminay injunction requitng the Carson City Clerk to notify the registrant ofthe challenged, pursuant to NRS 293.530. 48, Petitioners ae entitled to this rela to preserve the status quo and to prevent Petitioner, and the Nevada public from being imeparably harmed, Without the mailing of the notice, within 33 days or more of the election, the Carson City Clerk will have avoided their cbligation unr the law and precluded Petitioners from exercising thi ighs to challenge registrant whois no longer living in Nevada or the ara in which they ae registered 49, A ond in the amount of $1000.00 can be posted. Ths wil cover the costs of mailing the notices to theregisteants being challenged. PRAYER FOR RELIDF WHEREFORE, Petitioners pay for relief as follows: 1. For writ of mandamus compelling Respondents to process the challenges end {to the registrant pursuant to NRS 293.530, provide n 2 Declaring that Respondent rein violation of NRS 293.535 and NRS 293.530. 3. Forauy necessary injunctive or declaratory remedies or tlie. 4. Foranaward of reasonable cost and attorneys fees 5. Any aditona elif this Court deems just, prope, and equitable. Dated: September 20, 2024. Respectfully submitted, 311 E, Liberty Stet Reno, Nevada 89501 775,323,132) david @omaralav:net 10 u 2 8 4 1s 16 v 18 » 20 a 2 Pr 2s 26 ” 28 Exhibit No, 1 EXHIBIT INDEX Deseription Pages Private Memo to Registrars and Clerks ftom the 3 SOs Open Letter to SOS and Clerks/Registears from 20 Muth Correspondence from the Attorney General 1 Correspondence to Clerks/Registrars from 2 (O'Mara Law Firm, P.C, Example of an Affidavit for Challenge 1 EXHIBIT 1 EXHIBIT 1 gn Sgr Comrade FRANCISCO V. AGUILAR STATEOF NEVADA GABRIEL DICHIARA ‘Sette a Doy ey fe RUBEN J, RODRIGUEZ, ERIN HOUSTON own Senin ewes np Sy fon ra MARK A, WLASCIIN SHAUNA BAKKED AHL Ip Sem fo ens OnFick OF THE DEBBIE BOWMAN SECRETARY OF STATE MEMORANDUM ‘To: Nevada County Clerks & Registrars From: Mark Wiaschin Date: August 27,2024 Subject! Mem 2024-026 ~ Personal Knowledge The following guidance is aovided to elavify the ‘persona knowledge” required to challenge to a registered voter pursuant to NRS 293,535 and NRS 293.547, 1. Written Challenge Statutes Nevada lw permits two forms of written challenge to voter eligibility, one under NRS 293,535, and the other under NRS 293.547. Both types of challenge require the challenger to ates that they have personal knowledge of the facts relating to voter eligibility supporting the challenge ‘Under NRS 293.535, a challenger may file an affidavit stating ether thatthe registrant (1) isnot ‘citizen of the United Stats, or (2) has moved outside the boundaries of the county where they ate registered and established w new residence withthe intention of remaining in there indefinitely and abandoning their previous residence. In ether ease the challenger must state that they have “personal knowledge” of the facts alleged. To bring a valid writen chellenge under NRS 293.547, a repistered voter must be registred to vote inthe same precinct as the person whose right to vote is challenged and base the challenge ‘on their personal knowledge. ‘The Secretary has issued regulations interpreting and implementing NRS 293.547. NAC 293.416 defines “personal knowledge” a5 used in NRS 293.547 to mean “firsthand knowledge through ‘experience or observation ofthe fats upon each ground tat the challenge is based.” NAC 293.416(3). This is consistent with the general understanding ofthe term, "Personal knowledge” js most commonly understood tobe “[klnowledge gtined through fisthand observation or experience,” distinguishable from secondhand knowledge tat is, for example, "based on wit someone else has sad,” See Personal Knowledge, BLACK LAW'S DICTIONARY (12th ed. 2024), TL. Legislative History Further clavity on “persons! knowledge” can be found inthe legislative history of prior amendments to NRS 293.547 First, the legislature amended NRS 293.547 in 1991 through “Assembly Bll 652 (AB 652) to require tata chullenge under the statute must be brought ether by a registered voter ofthe same precinct or district us the challenged voter or onthe basis of personal knowledge. See AB 652 § 29. Comments considered by the Legislative Counsel Bureau (C.CB) suggest the emendient was intended to root out voter challenges based on review of databases like Department of Motor Vehicles records, Ex. Cat 7 0 Minutes ofthe Nev. Legis. ‘Asvemb. Comm, on Legs, Functions & Elections (May 14, 1991). This commentary notes that challenges were increasingly filed based on comparison of DMV addresses against voter registration records, “becoming] nothing shor of intimidation,” and thatthe requirement of “personal knowledge” vas meant to preclude challenges based on such comparisons. Id. LCB described the then-proposed amendment as “restoring] the original intent of challenging a voter ‘aged upon personal know edge tha the voter isnot qualified to vole.” I ‘Then, in 2007, the legislate amended NRS 293.547 through Assembly Bill 69 (AB $69) to require that challenges under the statute must bot be brought by a repstered voter ofthe same precinct as the challenged voer and be made on the bass of personal knowledge. See AB 569 § 54, The legislative history ndicates tat the amendment was intended to rectify the fet that as then codified NRS 293.547 did not “require the challenger to have any personal or first-hand knowledge of why he or she is challenging a particular voter.” Minutes ofthe Assemb. Comm. ‘0n Elections Procedures, Ethie, & Constitutional Amendments at 3-4 (Apr. 3, 2007) (statement ‘of Larry Loma, Registrar 3f Votes, Clark County). The minutes show the amendment was ‘written to oot out “blind, scattered challenges” and requires firsthand knowledge, knowledge “a ‘person who, nual his Gru eapesieuns, knows... t0 be te) fr all challenges under the State, Kd at 4 The amendment, therefore, proposed adding "a requitement that a person sctually have knowledge ofthe person being challenged or the reason the challenge i being mae." I, ‘While “personal knowledge" isnot explicily defined under NRS 293.535 or implementing regulations, the Secretary views the term to mean the same thing in both statutes. See, e.g, Clark County Office of the Coroner/Medical Examiner v. Las Vegas Review-Iournal, 136 Nev. 44, 61, +458 P-3d 1048, 1061 (20201 (citing Savage v. Pierson, 123 Nev. 86 94,157 P.34 697, 702 (2007) (*{W]hen the same word is used indifferent statutes that are similar with respect to ‘purpose and content, the word will bused in the same sense, unless the statutes’ context indicates otherwise). There is no reason to thnk thatthe Legislature intended “personal knowledge” ta differ acrosthese two statutes, which are similar in content and context. TIL, The National Voter Registration Act of 1993 (NVRA) The NVRA requires, among other things, that «state “condita general program that makes a reasonable effort to remove the names” of voters who may be ineligible based on a change of residence, 52 U.S.C. § 20507(a)@), The geneval program must be "uniform, nondiscriminatory, ‘and in compliance with the Voting Rights Act of 1965." 82 U.S.C. § 205071), One way to satis the general progran requirement is o rely on change-oF address information supplied by the US. Postal Service (NCOA Data) $2 USC. § 20507(6)(). A state must complete its general program to remove votes who may have changed residence “not later than 90 days prior othe date ofa” federal election. 52 US.C. § 2050722). This 90- ay blackout period does not apply to removal actions based on individualized information. See Arca v Fl, Sec'y of State, 772 Fd 1535, 1348 (1th Cit, 2014), The Secretary's opinion is that challenges under NRS 293.535 or 293.547 tht are based on NCOA deta, not “personal knowledge,” ae not based on individualized information, A state cannot use NCOA Data to inactvete or emove voters during the 90 days before a federal election through its general removal program, and challenges based on NCOA Data made dung ‘the 90 days before a federal election would open an untenable loophole tothe NVRA's 90-day blackout period IV. Conclusion ‘Recently, individuals have submitted challenges based on thei “personal knovledge” obtained from thee review of data fom databases or compilations of information, Ii the opinion of he ‘Secretary of Sate that suck challenges do not meet the requirement of “personal knowledge" of {acts supporting the challenge required by NRS 293.535 and 293.547. As the legislative history from 1991, noted above, cenfirms, review of databases and information compilations do not provide “firsthand knowieége through experience or observation” of the challenged individual's

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