ACLJ Files Amicus Brief Defending Election Integrity Against State Law Infringing on Right to Election Speech

The ACLJ has proudly supported election integrity during the 2024 election, from helping ensure that individuals’ votes are counted to filing an amicus brief at the Supreme Court that successfully resulted in Virginia’s election laws being restored. We’ve now filed a new amicus brief in the Ninth Circuit Court of Appeals, defending the right to speak freely in the electoral process.

Our brief is in support of poll workers who filed a lawsuit against a new law in Nevada on First Amendment grounds, challenging the pre-enforcement of Nevada’s Senate Bill 406 (now codified as NRS § 293.705(1)). These plaintiffs argue that this law imposes vague and overbroad criminal penalties that threaten to undermine the ability of Nevadans to freely participate in the electoral process as poll workers, poll watchers, and engaged citizens.

This new law is sweepingly overbroad and vague, criminalizing acts of “force, intimidation, coercion, violence, restraint or undue influence” against election officials. Many of the key terms in the law, for example, “undue influence,” are undefined. Moreover, the law imposes a potential felony conviction for any violation. This draconian punishment hangs as a sword of Damocles over the heads of all Nevadans who wish to exercise their constitutional rights to monitor election procedures, advocate for electoral integrity, or otherwise participate in the democratic process. Questioning voter fraud or raising concerns about voting irregularities could now be considered a criminal act.

Actual coercion and intimidation of election workers is reprehensible and illegal, and we support accountability for true intimidation of election workers. But Nevada already has laws that preclude harassment, intimidation, or coercion of public employees and that protect public employees from violence and harm. The problem here is that this new law goes beyond that for elections, for example, by not defining “intimidation” or “undue influence.”

In fact, the law’s definitions of “intimidation” and “undue influence” are so nebulous that they could encompass a wide range of ordinary and constitutionally protected activities. For example, a poll worker providing information to a voter about election procedures or a poll watcher politely questioning an election official’s actions might be construed as unlawful “intimidation” or “undue influence” under the statute. Even something as simple as a raised voice or an impassioned plea could potentially subject an individual to felony charges. But the biggest problem is that because the law doesn’t define these key terms, it is unclear what actions are covered or not.

The chilling effect of such a law is palpable and immediate. By wielding the threat of felony prosecution for ill-defined “undue influence” or “intimidation,” this law discouraged many Nevadans from stepping forward to serve as poll workers or poll watchers. Even those with the courage to participate were forced to carefully self-censor their speech and actions for fear of running afoul of the law’s vague prohibitions. This self-censorship strikes at the heart of the First Amendment.

Regardless, the trial court here ruled that these poll workers didn’t have standing to challenge this law. They were not even allowed a day in court to challenge its effects. Our brief responded in the appellate court by arguing that when First Amendment rights are threatened, these individuals have standing to protect their constitutional rights.

The inquiry tilts dramatically toward a finding of standing in such cases. Parties can challenge the potential enforcement of laws before their actual application, as the threat of self-censorship is at the core of First Amendment protections. The Supreme Court has made clear that an actual arrest, prosecution, or enforcement action is not a prerequisite to challenging a law.

Overall, we argue that these poll workers should be allowed to challenge SB 406 before its enforcement, as the mere existence of the law threatens to chill their protected speech and associational activities related to elections. Requiring them to wait until they are actually prosecuted would undermine the important principle that First Amendment rights should not be subject to such chilling effects. Appellants only need to allege conduct “arguably” within the ambit of a statute and that a “genuine threat of imminent prosecution exists” to have standing. They do not need to prove the criminal cases against them under the statute before challenging its enforcement.

When First Amendment freedoms are at stake, the courts must be especially vigilant in ensuring that plaintiffs have a path to challenge potentially unconstitutional laws. Our brief urged the Ninth Circuit to maintain First Amendment rights and give these poll workers the chance to have their day in court.