respondent's answering brief in criminal appeal of acorn/project vote executive amy adele busefink,...

7/31/2019 Respondent's Answering Brief in Criminal Appeal of ACORN/Project Vote Executive Amy Adele Busefink, dated Sep

1/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IN THE SUPREME COURT OF THE STATE OF NEVADA

AMY ADELE BUSEFINK,

Appellant,

vs.

THE STATE OF NEVADA,

Respondent.

)))))))))

Case No. 57579

RESPONDENTS ANSWERING BRIEF

CATHERINE CORTEZ MASTO JONES VARGASAttorney General Kevin R. Stolworthy, Esq.ROBERT E. WIELAND Nevada Bar No. 2798

Senior Deputy Attorney General Bardley Scott Schrager, Esq.Nevada Bar No. 890 Nevada Bar No. 10217JARED M. FROST Conor P. Flynn, Esq.Deputy Attorney General Nevada Bar No. 11569Nevada Bar No. 11132 3773 Howard Hughes ParkwayAppellate Division Third Floor South5420 Kietzke Lane, Suite 202 Las Vegas, Nevada 89169Reno, Nevada 89511 Telephone: (702) 862-3300Telephone: (775) [email protected]

Attorneys for Respondent Attorneys for Appellant

Electronically Filed

Sep 16 2011 11:05 a.mTracie K. LindemanClerk of Supreme Cour

Docket 57579 Document 2011-28335


2/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-i-

TABLE OF CONTENTS

TABLE OF CASES AND AUTHORITIES CITED................................................................................

I. STATEMENT OF THE ISSUES.................................................................................................

II. STATEMENT OF FACTS ..........................................................................................................III. SUMMARY OF THE ARGUMENT...........................................................................................

IV. ARGUMENT...............................................................................................................................

A. The District Court Correctly Upheld The Constitutionality OfNRS 293.805 Because The States Interest In Protecting The Integrity OfThe Voter Registration Process Outweighs Any Burden To BusefinksFirst Amendment Rights ..................................................................................................

1. States have broad authority to establish rules to ensure the integrityof the electoral process.........................................................................................

2. Laws regulating elections, but which also burden political speech

protected by the First Amendment, are evaluated under theframework set forth inAnderson v. Celebrezze ...................................................

3. Because NRS 293.805 is neither discriminatory nor a severeburden on political speech, strict scrutiny is unwarranted ...................................

4. The legislative history of NRS 293.805, evidence presented at thepreliminary hearing, and the experience of other states demonstratethat the statute serves Nevadas interest in protecting the integrityof the voter registration process ...........................................................................

5. The States compelling interest in protecting the integrity of thevoter registration process justifies any burden resulting fromNRS 293.805 ........................................................................................................

6. NRS 293.805 should be upheld even under strict scrutiny ..................................

B. The District Court Correctly Upheld The Constitutionality OfNRS 293.805 Because The Statute Is Sufficiently Clear To Provide NoticeOf The Proscribed Conduct And Does Not Violate Due Process....................................

1. The vagueness doctrine ........................................................................................

2. NRS 293.805 should be read to incorporate a general intentrequirement under NRS 193.190..........................................................................

3. NRS 293.805 sets forth specific standards and does not encouragearbitrary or discriminatory enforcement...............................................................

a. The term registers is sufficiently clear..................................................

b. The term based upon is sufficiently clear .............................................

V. CONCLUSION............................................................................................................................

CERTIFICATE OF COMPLIANCE .......................................................................................................

CERTIFICATE OF SERVICE.................................................................................................................


3/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-ii-

TABLE OF CASES AND AUTHORITIES CITED

CASES

Anderson v. Celebrezze,460 U.S. 780 (1983) ......................................................................................................................2, 3

Berry v. State,212 P.3d 1085 (Nev. 2009)..................................................................................................................

Burdick v. Takushi,504 U.S. 428 (1992) ..........................................................................................................................3

Carrington v. Rash,380 U.S. 89 (1965) ..............................................................................................................................

City of Las Vegas v. Dist. Ct.,118 Nev. 859, 59 P.3d 477 (2002).................................................................................................10,

City of Renton v. Playtime Theatres, Inc.,475 U.S. 41 (1986) ..............................................................................................................................

Desert Valley Water Co. v. State, Engineer,104 Nev. 718, 766 P.2d 886 (1988).....................................................................................................

Flamingo Paradise Gaming, LLC v. Chanos,2009 Nev. 39, 217 P.3d 546 (2009).....................................................................................................

Florida Bar v. Went For It, Inc.,515 U.S. 618 (1995) ............................................................................................................................

Holder v. Humanitarian Law Project,561 U.S. __, 130 S.Ct. 2705 (2010) ....................................................................................................

Initiative & Referendum Institute v. Jaeger,241 F.3d 614 (8th Cir. 2001).............................................................................................................6

Lassiter v. Northampton County Bd. of Elections,360 U.S. 45 (1959) ..............................................................................................................................

League of Women Voters of Fla. v. Cobb,447 F.Supp. 2d. 1314 (S.D. Fla. 2006)................................................................................................

Lorillard Tobacco Co. v. Reilly,533 U.S. 525 (2001) ............................................................................................................................

Manning v. Warden,99 Nev. 82, 659 P.2d 847 (1983).........................................................................................................

Meyer v. Grant,486 U.S. 414 (1988) ..........................................................................................................................4

Munro v. Socialist Workers Party,479 U.S. 189 (1986) ............................................................................................................................

Norman v. Reed,502 U.S. 279 (1992) ............................................................................................................................

Person v. New York State Board of Elections,467 F.3d 141 (2d Cir. 2006) ................................................................................................................

Prete v. Bradbury,438 F.3d 949 (9th Cir. 2006) ...............................................................................................................

Project Vote v. Blackwell,455 F.Supp. 2d. 694 (N.D. Ohio 2006) ...............................................................................................


4/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-iii-


CASES

Project Vote v. Kelly,2011 WL 3204752 (W.D. Pa. July 27, 2011) ................................................................................5, 6

Purcell v. Gonzalez,549 U.S. 1 (2006) ..............................................................................................................................3

Ranson v. State,99 Nev. 766, 670 P.2d 574 (1983).......................................................................................................

Reynolds v. Sims,377 U.S. 533 (1964) ............................................................................................................................

Sheriff, Washoe County v. Burdg,118 Nev. 853, 59 P.3d 484 (2002).......................................................................................................

Silvarv.Dist. Ct.,122 Nev. 289, 129 P.3d 682 (2006).....................................................................................................

Skilling v. United States,561 U.S. __, 130 S.Ct. 2896 (2010) ....................................................................................................

State v. Castaneda,__ Nev. __, 245 P.3d 550 (Nev. 2010) ............................................................................................ 9,

Timmons v. Twin Cities Area New Party,520 U.S. 351 (1997) ............................................................................................................................

Turner Broadcasting System, Inc. v. FCC,512 U.S. 622 (1994) ............................................................................................................................

Williams v. Rhodes,393 U.S. 23 (1968) ..............................................................................................................................

Winnerford H. v. State,112 Nev. 520, 915 P.2d 291 (1996)...............................................................................................10,

STATUTES

Nev. Rev. Stat. 193.050(3).......................................................................................................................

Nev. Rev. Stat. 193.190 .....................................................................................................................10,

Nev. Rev. Stat. 200.366(1).......................................................................................................................

Nev. Rev. Stat. 293.517 ...........................................................................................................................

Nev. Rev. Stat. 293.517(1)(a) ..................................................................................................................

Nev. Rev. Stat. 293.517(5).......................................................................................................................

Nev. Rev. Stat. 293.800 ...........................................................................................................................

Nev. Rev. Stat. 293.800(4).....................................................................................................................8

Nev. Rev. Stat. 293.800(5)(a) ..................................................................................................................

Nev. Rev. Stat. 293.805 .........................................................................1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12,

Nev. Rev. Stat. 293.805(a) .................................................................................................................11,


5/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-iv-


CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. I ...............................................................................................................................

U.S. Const. Art. I, 4, Cl. 1.....................................................................................................................


6/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-1-

IN THE SUPREME COURT OF THE STATE OF NEVADA

AMY ADELE BUSEFINK,

Appellant,

vs.

THE STATE OF NEVADA,

Respondent.

)))))))))

Case No. 57579

RESPONDENTS ANSWERING BRIEF

The Respondent, State of Nevada, by and through counsel, Catherine Cortez Masto, Attorn

General for the State of Nevada, hereby submits this answering brief.

I. STATEMENT OF THE ISSUES

1. Does NRS 293.805 unconstitutionally burden speech protected by the First Amendmen

2. Is NRS 293.805 unconstitutionally vague?

II. STATEMENT OF FACTS

In May 2009, the State charged Appellant Amy Adele Busefink (Busefink), Christoph

Edwards, and the Association of Community Organizations For Reform Now, Inc. (ACORN) w

multiple violations of NRS 293.805, Nevadas statute prohibiting the compensation of voter registrati

canvassers based on the total number of voters registered. Joint Appendix (J.App.) at 1-33. The

charges stemmed from an eight-month investigation of ACORNs Las Vegas voter registrati

activities conducted by the Secretary of State in response to complaints of voter fraud filed by t

Clark County Registrar of Voters. See id. at 58. In the course of their inquiry, investigators for

Secretary of State determined that canvassers employed by ACORN had submitted fraudulent vo

registration applications. Id. at 59. However, the investigators were unable to identify the individu

canvasser or canvassers who submitted the fraudulent applications. Id. Consequently, none

ACORNs canvassers were prosecuted for voter fraud. Id.

In addition to the fraudulent voter applications, the Secretary of States investigation uncover

an illegal compensation program that had been implemented by ACORNs Las Vegas manageme


7/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-2-

Id. at 53, 83. The program was called Blackjack or 21 in reference to the popular casino game, a

provided a $5 bonus for canvassers who registered at least 21 voters during their shift. Id. at 53. T

bonus program was first suggested by Christopher Edwards, ACORNs state field director for Neva

id. at 82-83, and approved by Busefink, who was Edwards direct supervisor, id. at 83-84. In Novemb

2010, Busefink entered an Alfordplea to two counts of conspiracy to violate NRS 293.805.

at 236-46. The district court accepted the plea and adjudicated Busefink guilty on January 8, 2011.

at 265-77. This appeal follows.

III. SUMMARY OF THE ARGUMENT

The district court correctly held that NRS 293.805 does not impermissibly impinge on spee

protected by the First Amendment, and that the statute is not vague in violation of due proce

Busefink has failed to show either that the statute is discriminatory or a severe burden on politi

speech, and strict scrutiny is therefore unwarranted. Under the less exacting scrutiny set forth

Anderson v. Celebrezze, Nevadas indisputably compelling interest in preserving the integrity of t

election process outweighs any burden to speech protected by the First Amendment. Busefink has a

failed to show that NRS 293.805 does not comply with the specificity requirements of due process,

the statute clearly and unambiguously prohibits one method of compensating voter registrati

canvassers.

IV. ARGUMENT

A. The District Court Correctly Upheld The Constitutionality Of NRS 293.805 Because TStates Interest In Protecting The Integrity Of The Voter Registration Process OutweigAny Burden To Busefinks First Amendment Rights

In its order denying Busefinks motion to dismiss, the district court upheld the constitutional

of NRS 293.805, finding that the States interest in protecting the integrity of Nevadas vo

registration process outweighed any burden to Busefinks First Amendment rights. J.App at 23

Busefink argues on appeal that NRS 293.805 is unconstitutional because it burdens core political spee

and is not narrowly tailored to serve a compelling state interest. Opening Brief at 5. This argum

should be rejected.

. . .

. . .


8/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-3-

1. States have broad authority to establish rules to ensure the integrity of the electorprocess

The Constitution of the United States expressly provides that state legislatures are to prescri

[t]he Times, Places and Manner of holding Elections for Senators and Representatives. U.S. Con

Art. I, 4, Cl. 1. And the Supreme Court of the United States has long recognized that States ha

broad powers to determine the conditions under which the right of suffrage may be exercise

Carrington v. Rash, 380 U.S. 89, 91 (1965) (quotingLassiter v. Northampton County Bd. of Electio

360 U.S. 45, 50 (1959)), and a compelling interest in preserving the integrity of [the] election proces

Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam) (citation omitted). This authority reflects

fact that [v]oter fraud drives honest citizens out of the democratic process and breeds distrust of o

government, and that [t]he right of suffrage can be denied by a debasement or dilution of the weig

of a citizens vote just as effectively as by wholly prohibiting the free exercise of the franchise

Id. (quotingReynolds v. Sims, 377 U.S. 533, 555 (1964)).

2. Laws regulating elections, but which also burden political speech protected by tFirst Amendment, are evaluated under the framework set forth in AndersonCelebrezze

The First Amendment, as applied to the states by virtue of the Fourteenth Amendment, prohib

states from enacting laws which abridge the freedom of speech. U.S. Const. Amend. I. State la

regulating elections may impinge on a number of expressive or associational rights protected by t

First Amendment. See Williams v. Rhodes, 393 U.S. 23, 30 (1968). Nevertheless, because states m

necessarily play an active role in structuring elections to ensure that they are fair and honest .

rather than chao[tic], and because [e]lection laws will invariably impose some burden upon individu

voters, the United States Supreme Court has stressed that not every voting regulation that imposes [

burden upon [individual voters] must be subject to strict scrutiny. Burdick v. Takushi, 504 U.S. 42

432-33 (1992). Rather, a more flexible standard applies. Id. at 434. Under that approach, when

state election law provision imposes only reasonable, nondiscriminatory restrictions on

individuals right to vote, the States important regulatory interests are generally sufficient to justif

the restrictions. Id. (quotingAnderson v. Celebrezze, 460 U.S. 780, 788 (1983)). In contrast, when t

. . .


9/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-4-

right to vote is subjected to severe restrictions, the regulation must be narrowly drawn to advan

a state interest of compelling importance. Id. (quotingNorman v. Reed, 502 U.S. 279, 289 (1992)).

3. Because NRS 293.805 is neither discriminatory nor a severe burden on politicspeech, strict scrutiny is unwarranted

Here, the challenged statute is neither discriminatory nor does it represent a severe burden

political speech, and this Court should apply less exacting scrutiny in evaluating its constitutionali

The full text of NRS 293.805 is as follows:

1. It is unlawful for a person to provide compensation for registeringvoters that is based upon:(a) The total number of voters a person registers; or(b) The total number of voters a person registers in a particular political

party.2. A person who violates any provision of this section is guilty of acategory E felony and shall be punished as provided in NRS 193.130.

Accordingly, NRS 293.805 prohibits just one non-discriminatory2 means of compensating canvass

who are employed to register voters. The statute does not preclude voter registration organizers fro

conducting paid voter-registration drives, paying their employees on an hourly basis, or awardi

bonuses based on factors such as reliability or longevity. In addition, nothing in the text

NRS 293.805 prevents organizers from holding hourly employees to production-based expectations

terminating employees for failing to meet those expectations. Therefore, any burden on political spee

resulting from NRS 293.805 is de minimus, and strict scrutiny is unwarranted.

Busefink argues that NRS 293.805 imposes a severe burden on speech, and should therefore

subject to strict scrutiny, because it imposes criminal penalties and prohibits using flexibly-appli

production standards. Opening Brief at 9-10. In support of this argument, Busefink relies onMeyer

Grant, 486 U.S. 414 (1988), and its progeny. Id. at 10;see also id. at 8 (discussingLeague of Wom

Voters of Fla. v. Cobb, 447 F.Supp. 2d. 1314 (S.D. Fla. 2006), and Project Vote v. Blackwe

455 F.Supp. 2d. 694 (N.D. Ohio 2006)).

1 Courts must apply strict scrutiny to statutes that suppress, disadvantage, or impose differential burdeupon speech because of its content. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 6(1994). However, Busefink does not argue that NRS 293.805 is a content-based regulation, sOpening Brief, and nothing in the text of the statute suggests that it should be interpreted as such, sNRS 293.805.2Busefink does not argue that NRS 293.805 discriminates against any particular group. See OpeniBrief.


10/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-5-

Meyer v. Grantinvolved a constitutional challenge to a Colorado criminal statute prohibiting t

payment or receipt of money for the collection of signatures on a ballot initiative.3 Grant, 486 U

at 415-16. The United States Supreme Court found that the statute raised First Amendment concer

and observed that it restricted political expression in two ways:

First, it limits the number of voices who will convey appellees messagesand the hours they can speak and, therefore, limits the size of the audiencethey can reach. Second, it makes it less likely that appellees will garnerthe number of signatures necessary to place the matter on the ballot, thuslimiting their ability to make the matter the focus of statewide discussion.

Id. at 421-23. The Grant court invalidated the Colorado statute after applying strict scrutiny, as t

statute operated to completely foreclose an entire channel of communication that had the inevitab

effect of restricting direct one-on-one communication, the most effective, fundamental, and perha

economical avenue of political discourse. Id. at 423-24.

However, Grant is distinguishable from this case in at least two important ways. Fir

NRS 293.805 prohibits only one method of paying canvassers. Unlike the Colorado statute at issue

Grant, NRS 293.805 does not foreclose an entire channel of communication by imposing a total b

on payments by political advocacy organizations to their employees to engage in political speech.

previously discussed, nothing in NRS 293.805 prohibits vote registration organizations like ACOR

from conducting paid voter-registration drives, paying canvassers on an hourly basis, or awardi

bonuses based on factors other than the number of persons registered.

In addition, the voter registration process does not involve the second type of burden recogniz

in Grant. As noted inProject Vote v. Kelly, 2011 WL 3204752 (W.D. Pa. July 27, 2011), organizers

voter registration drives

. . .

. . .

3 In a footnote, Busefink argues that voter registration drives merit significantly greater FiAmendment protection than the circulation of ballot measure petitions because [v]oter registrationthe core of the core of participation in the American democratic process . . . . Opening Brief at 6 nWhile the State acknowledges that ACORNs voter registration drives likely involve some speeprotected by the First Amendment, these drives are ostensibly non-partisan and canvassers are ncharged with advocating for any particular candidate or legislation. See J.App. at 83 (duties canvassers limited to registration of voters). Therefore, voter registration drives do not involve tsame degree of advocacy on behalf of political change as the circulation of ballot measures, nor do thmerit any additional First Amendment protection.


11/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-6-

. . . are not trying to obtain enough signatures to trigger a referendum orplace a candidates name on the ballot. Instead, they are trying to convincepotential voters to make themselves eligible to vote for or againstcandidates who are already the subject of statewide (or nationwide)attention. Since individuals participating in a voter-registration drive donot have to procure a specific number of applications to facilitate a broaderdiscussion, 1713(a) [Pennsylvanias criminal statute prohibiting thepayment of canvassers based upon the number of registrations orapplications obtained] has no impact on the second First Amendmentinterest identified inMeyer.

2011 WL 3204752 at *19.

Furthermore, Busefink has offered no evidence to show that by eliminating one method

payment, NRS 293.805 deters the number of canvassers willing to work in voter-registration driv

See Opening Brief at 10 (asserting, without more, that [e]xperience has shown that regulations of t

manner in which organizations may employ and retain staff severely curtail the amount of outreach th

can be accomplished, and therefore the number of voices that can be heard.). Busefink has also fail

to identify any actual or potential canvasser who has been deterred by the fact that NRS 293.8

imposes criminal penalties. See id. Consequently, any burden placed on First Amendment speech

NRS 293.805 is de minimus, and strict scrutiny is unwarranted. Initiative & Referendum Institute

Jaeger, 241 F.3d 614, 618 (8th Cir. 2001) (finding bare assertions of the kind made by Busefi

insufficient to subject an electoral statute to strict scrutiny); Kelly, 2011 WL 3204752 at *19-

(concluding that burden imposed on expressive activities by a Pennsylvania statute that prohibited t

same compensation method as NRS 293.805 was de minimus).

4. The legislative history of NRS 293.805, evidence presented at the preliminahearing, and the experience of other states demonstrate that the statute servNevadas interest in protecting the integrity of the voter registration process

The legislative history of NRS 293.805 shows that in 1993, the Las Vegas Metropolitan Pol

Department had received numerous complaints of election fraud. J.App. at 193. The complai

centered on deputy field registrars who were falsifying the party affiliation of voters in order to collec

$2 bonus for returning a Democratic application. Id. at 193-94. In an effort to prevent such fraud in

electoral process, the legislature passed the bill creating NRS 293.805. See id.; NRS 293.805.

Despite this history, Busefink asserts that NRS 293.805 does not serve Nevadas interest

protecting the integrity of the electoral process because there has been no voter fraud as a result of a


12/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-7-

fictitious registration at issue in this case, and because the State has not prosecuted anyone other th

Busefink under the statute. Opening Brief at 15. However, there is no requirement that the State sh

evidence of fictitious registration in this case for the States interest in preventing such fraud

qualify as important. A State need not wait to suffer harm; it can adopt prophylactic measures

prevent electoral fraud from occurring in the first place. See Munro v. Socialist Workers Par

479 U.S. 189, 195-96 (1986) (Legislators may respond to potential deficiencies in the electoral proce

with foresight rather than reactively, provided that the response is reasonable and does not significan

impinge on constitutionally protected rights.).

In addition, this case does involve voter fraud. At the preliminary hearing, Colin Haynes,

investigator for the Secretary of State, testified that he and his colleagues responded to voter fra

complaints filed by the Clark County Registrar of Voters and determined that canvassers employed

ACORN had submitted fraudulent voter registration applications. J.App. at 59. The fact that the

canvassers were never charged with fraud due to the inability of the investigators to identify them do

not mean fraud was never at issue or that NRS 293.805 does not serve Nevadas interest in protecti

the integrity of the voter registration process.

Furthermore, in various First Amendment contexts, the Supreme Court has recognized that o

state can look to the experiences of other states in determining what measures are necessary to prot

its interests. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001); Florida Bar v. Went For

Inc., 515 U.S. 618, 628 (1995); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 5152 (198

The fact that per-signature payments create incentives for petition circulators to commit fraud has be

recognized by three federal appellate courts in decisions sustaining state statutes prohibiting the use

piece-rate and commission-based compensation systems in the initiative and candidate-nominati

contexts. Person v. New York State Board of Elections, 467 F.3d 141, 143 (2d Cir. 2006); Prete

Bradbury, 438 F.3d 949, 969971 (9th Cir. 2006); Initiative & Referendum Institute, 241 F.

at 617-618. Therefore, the legislative history of NRS 293.805, evidence presented at the prelimina

hearing, and the experience of other states demonstrate that the statute serves Nevadas interest

protecting the integrity of the voter registration process.

. . .


13/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-8-

5. The States compelling interest in protecting the integrity of the voter registratiprocess justifies any burden resulting from NRS 293.805

Under the less exacting standard of review, a States important regulatory interest w

usually be enough to justify reasonable, nondiscriminatory restrictions. Timmons, 520 U.S. at 3

(internal quotation marks omitted). In this case, the States interest in protecting the integrity of t

voter registration process is more than sufficient to justify any burden imposed by NRS 293.805. As t

United States Supreme Court has recognized, [a] State indisputably has a compelling interest

preserving the integrity of its election process. Purcell, 549 U.S. at 4 (citation omitted); see a

J.App. at 233 (district court determining the States interest in protecting the integrity of Nevad

voter registration process outweighed any burden on political speech). Because NRS 293.805 impo

only a minimal burden on political speech, see supra Part III.A.2., Nevadas compelling interest

protecting the integrity of the voter registration process is sufficient to defeat Busefinks challen

Kelly, 2011 WL 3204752 at *26-27 (upholding validity of similar Pennsylvania statute under le

exacting scrutiny, collecting cases, and noting that [i]n every case in which a ban on per-signatu

payments has been subjected to a less exacting level of judicial scrutiny, the challenged legislati

enactment has been upheld.).

6. NRS 293.805 should be upheld even under strict scrutiny

While this Court should apply less exacting scrutiny to NRS 293.805, the State submits th

the statute should be upheld even under strict scrutiny. Strict scrutiny requires that the regulation

narrowly drawn to advance a state interest of compelling importance. Burdick, 504 U.S. at 4

(citation omitted). The United States Supreme Court has already determined that a states interest

protecting the integrity of the electoral process is a compelling interest. Purcell, 549 U.S. at

However, to survive strict scrutiny, the statute must also be narrowly drawn to effectuate that intere

Busefink argues that NRS 293.805 is not narrowly drawn to protect the integrity of t

electoral process because Nevada has at least two other laws designed to combat voter frau

NRS 293.800 subsections (5)(a) and (4). Opening Brief at 15. Subsection (5)(a) provides a crimin

penalty for field registrars who knowingly falsify, or knowingly cause to be falsified, a voter registrati

application. NRS 293.800(5)(a). Subsection (4) makes it a crime for any person to induce, aid, or ab


14/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-9-

another person who causes or endeavors to cause his or her name to be registered, knowing that he

she is not an elector . . . . NRS 293.800(4).

While these laws do address election fraud, they do not target the particular compensati

method the Nevada legislature deemed to be problematic. The Nevada legislature could ha

reasonably determined that NRS 293.805 was necessary to eliminate an incentive to falsify vo

information occasioned by this method of compensation, irrespective of whether the fraud itself w

already forbidden by NRS 293.800. Consequently, NRS 293.805 is narrowly tailored to prot

Nevadas compelling interest in protecting the integrity of electoral process, and should be upheld ev

under strict scrutiny.

B. The District Court Correctly Upheld The Constitutionality Of NRS 293.805 Because TStatute Is Sufficiently Clear To Provide Notice Of The Proscribed Conduct And Does NViolate Due Process

Busefinks second argument on appeal is that NRS 293.805 is impermissibly vague and violat

due process. Opening Brief at 18. Busefink asserts that the statute should be invalidated because

lacks an intent element and because the terms registration, registered, registers, and based upo

are impermissibly vague. Id. at 20-22.

1. The vagueness doctrine

Statutes are presumed to be valid, and the challenger bears the burden of showing that a statu

is unconstitutional. Flamingo Paradise Gaming, LLC v. Chanos, 2009 Nev. 39, 217 P.3d 546, 5

(2009) (quoting Silvarv.Dist. Ct., 122 Nev. 289, 292, 129 P.3d 682, 684 (2006)). Statutes must also

interpreted in a reasonable manner, that is, [t]he words of the statute should be construed in light of t

policy and spirit of the law, and the interpretation made should avoid absurd results. Desert Val

Water Co. v. State, Engineer, 104 Nev. 718, 720, 766 P.2d 886, 88687 (1988).

Vagueness challenges are analyzed under a two-factor test. State v. Castaneda, __ Nev. _

245 P.3d 550, 553 (Nev. 2010). Under this test, a statute is unconstitutionally vague if it (1) fails

provide notice sufficient to enable persons of ordinary intelligence to understand what conduct

prohibited; or (2) if it is so standardless that it authorizes or encourages seriously discriminato

enforcement. Id. at 553 (citing Holder v. Humanitarian Law Project, 561 U.S. at __, __, 130 S.C

2705, 2718 (2010)).


15/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-10-

[M]athematical precision is not possible in drafting statutory language. Id. (citing City

Las Vegas v. Dist. Ct., 118 Nev. 859, 864, 59 P.3d 477, 481 (2002)). In addition, [e]nough clarity

defeat a vagueness challenge may be supplied by judicial gloss on an otherwise uncertain statute,

(quoting Skilling v. United States, 561 U.S. __ at __, 130 S.Ct. 2896, 2933 (2010)), by giving a statute

words their well-settled and ordinarily understood meaning, id. (quoting Berry v. State, 212 P.

1085 (Nev. 2009)), and by look[ing] to the common law definitions of the related term or offense,

(quotingRanson v. State, 99 Nev. 766, 767, 670 P.2d 574, 575 (1983)). Nonetheless, the law must,

a minimum, delineate the boundaries of unlawful conduct. Some specific conduct must be deem

unlawful so individuals will know what is permissible behavior and what is not. Id. (quoting City

Las Vegas, 118 Nev. at 864, 59 P.3d at 481).

2. NRS 293.805 should be read to incorporate a general intent requirement undNRS 193.190

Busefink argues that NRS 293.805 is impermissibly vague because it lacks an inte

requirement. Opening Brief at 20. It is true that the statute does not refer to a state of mind such

knowingly or recklessly. See NRS 293.805. However, both NRS 193.190 and this Cour

precedents support the district courts holding that NRS 293.805 contains an implied general inte

requirement.

NRS 193.190, Nevadas general intent statute, provides that [i]n every crime or public offen

there must exist a union, or joint operation of act and intention, or criminal negligence. This Court h

previously found an implied general intent requirement in a criminal statute where none was stat

explicitly. In Winnerford H. v. State, 112 Nev. 520, 915 P.2d 291 (1996), the 10-year-old defendant h

been accused of sexual assault. 112 Nev. at 520, 915 P.2d at 291-92. The crime of sexual assault do

not contain an explicit intent element. SeeNRS 200.366(1) (A person who subjects another person

sexual penetration, or who forces another person to make a sexual penetration on himself or herself

another, or on a beast, against the will of the victim or under conditions in which the perpetrator kno

or should know that the victim is mentally or physically incapable of resisting or understanding t

nature of his or her conduct, is guilty of sexual assault.). Nevertheless, this Court found that [s]exu

assault is generally considered a general intent crime, and dismissed the charge upon determining th


16/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-11-

the State had not shown the defendant had the required mens rea to commit the crime. Id. at 52

915 P.2d at 294 (citingManning v. Warden, 99 Nev. 82, 659 P.2d 847 (1983)).

In addition, this Court has expressed a willingness to imply a general intent requirement

criminal statutes where the proscribed conduct is sufficiently clear.4 See City of Las Vegas, 118 N

at 866-67, 59 P.3d at 482-83 (rejecting States invitation to find implied general intent requireme

because the statute at issue was so vague that no standard of conduct is proscribed at all.

Sheriff, Washoe County v. Burdg, 118 Nev. 853, 858, 59 P.3d 484, 487 (2002) (noting th

NRS 193.190 does not alleviate the absence of an intent element . . . [if] it is unclear where an inte

element would be implied.). As discussed below, NRS 293.805 provides a sufficiently cle

description of the proscribed conduct, and this Court should therefore affirm the district courts holdi

that the statute contains an implied general intent requirement as provided in NRS 193.190.

3. NRS 293.805 sets forth specific standards and does not encourage arbitrary discriminatory enforcement

In a mere 25 words, NRS 293.805(a) prohibits in plain language one method of compensati

voter registration canvassers. See NRS 293.805(a) (It is unlawful for a person to provi

compensation for registering voters that is based upon: (a) The total number of voters a pers

registers.). The statute uses common words that can be understood by a person of ordin

intelligence. In addition, NRS 293.805 gives specific guidelines to law enforcement of the prohibit

conduct, thereby discouraging arbitrary or discriminatory enforcement.

a. The term registers is sufficiently clear

Busefink argues that NRS 293.805 is impermissibly vague because the terms registration

registered, and registers are ambiguous. Opening Brief at 20-21. Busefink asserts that vo

registration organizers do not register voters as that term is used in NRS 293.517; instead, th

request and distribute applications for registration. Id. at 21. Busefink also points to a propos

amendment to NRS 293.805 in support of her contention that these terms are ambiguous. Id.

4 This Court has also incorporated an intent requirement to a criminal statute by reference to tcommon law understanding of the crime. Castaneda, 245 P.3d at 554;see also NRS 193.050(3) (Tprovisions of common law relating to the definition of public offenses apply to any public offenwhich is so prohibited but is not defined, or which is so prohibited but is incompletely defined.).


17/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-12-

This argument lacks merit. The State notes as a preliminary matter that NRS 293.805 does n

include the terms registration or registered. See NRS 293.805. As for register

NRS 293.517(1)(a) provides that any elector may register to vote by appearing before the coun

clerk, a field registraror a voter registration agency, completing the application . . . and providing pro

of residence and identity (emphasis added). The statute goes on to state that an elector who regist

to vote pursuant to paragraph (a) of subsection 1 shall be deemed to be registered upon the completi

of an application to register to vote. NRS 293.517(5). Therefore, a review of Nevadas electo

statute supports the view that a person of ordinary intelligence would understand the term registers

used in NRS 293.805 to include the work of voter registration canvassers. In addition, the eviden

presented at the preliminary hearing shows ACORN employees used the term register in the sam

manner. See J.App. at 83 (describing duty of canvassers was to register[] people to vote.).

Further, the failed amendment to NRS 293.805 does not demonstrate that the statute

impermissibly vague since that language has been rejected and also includes the terms Busefink fin

ambiguous. See Opening Brief at 21 (acknowledging the amendment did not pass and quoting propos

language).

b. The term based upon is sufficiently clear

Busefinks final argument is that NRS 293.805 is impermissibly vague because the term bas

upon is ambiguous. Opening Brief at 21-23. As the State understands it, Busefink is asserting tha

person of ordinary intelligence would not understand that paying canvassers a bonus for exceeding da

registration goals is prohibited by the statute, since a bonus system may be in addition to,

supplement, an hourly payment system. See id. at 22 (Clearly, there is no indication or allegation th

Ms. Busefink conspired to pay canvassers per each application for registration to vote. How is it cl

that the prohibition in the statute targets the conduct at issue in this case?), 1 (stating Busefink w

charged under NRS 293.805 because she paid $5 bonuses to persons exceeding the daily vo

registration goals). This argument should also be rejected. A monetary bonus is compensation, a

therefore prohibited under the statute if the bonus is based upon the total number of voters registere

regardless of whether it is part of a larger system that involves paying canvassers by the hour. S

NRS 293.805(a). In addition, nothing in the text of NRS 293.805 suggests that combining t


18/19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-13-

forbidden compensation method with other methods would somehow be permissible under the statu

See id. NRS 293.805 clearly prohibits compensating canvassers based on the total number of vot

registered, and this Court should reject Busefinks argument that it is impermissibly vague and violat

due process.

V. CONCLUSION

The judgment of the district court should be affirmed.

DATED this 16th day of September, 2011.

CATHERINE CORTEZ MASTOAttorney General

By: /s/ Jared M. Frost

JARED M. FROSTDeputy Attorney General

CERTIFICATE OF COMPLIANCE

I hereby certify that I have read this appellate brief and to the best of my knowledg

information, and belief, it is not frivolous or interposed for any improper purpose. I further certify th

this brief complies with all applicable Nevada Rules of Appellate Procedure, in particular NRAP 28(

which requires every assertion in the brief regarding matters in the record to be supported

appropriate references to the record on appeal. I understand that I may be subject to sanctions in t

event that the accompanying brief is not in conformity with the requirements of the Nevada Rules

Appellate Procedure.

DATED this 16th day of September, 2011.

CATHERINE CORTEZ MASTO

Attorney General

By: /s/ Jared M. FrostJARED M. FROSTDeputy Attorney General


19/19

respondent's answering brief in criminal appeal of acorn/project vote executive amy adele busefink,...

Documents