Battle of the Never-Empty Courtroom

If lawsuits got outlawed tomorrow, the legal profession would go the way of the dodo, and the news industry would have to do honest work. Alas, that day has not yet arrived, so the 9th Circuit Court of Appeals found itself knee-deep in a dispute over Nevada’s latest election law—a law meant to keep election workers from being harassed but now accused of muzzling the good, honest citizens who merely wish to glare at them in a particular tone.

Las Vegas attorney Sigal Chattah, speaking for a handful of plaintiffs, asked the court to scrap the law, citing fears that election observers could get prosecuted for crimes they had not yet committed. The lower court had already ruled that this was a problem left to the imagination, but pressing on, arguing that the law was so worded that a poll watcher could get tossed in the hoosegow for raising an eyebrow too forcefully.

To make her case, she pointed to a 2020 tweet by Attorney General Aaron Ford, wherein he warned that anyone engaging in voter intimidation would face prosecution. Chattah claimed it was proof that Ford desired to lock up those who asked an election worker any question, questioning anything.

The judges were skeptical.

Judge Eric Miller, perhaps hoping for a tale of wrongful imprisonment over a stern look, asked for an example of what conduct might get an observer into trouble. Chattah suggested that election workers, being delicate creatures, might misinterpret a “tone.”

Judge Roopali Desai, seemingly unimpressed with the specter of wrongful arrests over vocal inflections and errantly raised eyebrows, asked for something more concrete. Once again, Chattah brought up Ford’s tweet, the legal equivalent of a lucky rabbit’s foot.

The judges then turned their attention to Governor Joe Lombardo’s presence in the case, questioning with the exasperation of schoolmasters forced to correct a particularly enthusiastic student. Drawing on nearly two decades of prosecutorial experience, Judge Johnnie Rawlinson

pointed out that a governor cannot command district attorneys like a general ordering a charge.

Judge Miller took it a step further—if Lombardo lacks the power to enforce the law, the plaintiffs may have about as much business suing him as they do suing the mailman. Chattah conceded that this was “possibly” a valid point.

The state’s attorney, Laena St-Jules, representing Lombardo and Secretary of State Cisco Aguilar, also received her share of grilling. Judge Desai, eager to test the bounds of the law, asked if an election observer who so much as mentioned filing a lawsuit could be charged with intimidation.

St-Jules assured the court that Nevada had not yet reached the point where thoughts were criminal. But Desai pressed on—since the law lacks a definition of intimidation, how could anyone be sure where the line was?

St-Jules insisted that the long-settled meaning of intimidation did not include threats of litigation, though it seemed clear that if there were a legal argument, someone would be willing to have it.

With all arguments aired and no fists thrown—though perhaps a few eyebrows raised—the judges declared the matter submitted for their wisdom. Now, the state of Nevada waits.

If the court upholds the law, election workers will remain safe from aggressive tones. If the plaintiffs win, the case will head back to the district court, where it will get examined again, proving once more that if lawsuits were to vanish, lawyers would have to do honest work.