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 vs.

IN THE SUPREME COURT OF THE STATE OF NEVADA

AMY ADELE BUSEFINK, Appellant,

THE STATE OF NEVADA, Respondent.

) ) ) ) ) ) ) ) )

Electronically Filed Sep 16 2011 11:05 a.m. Case No. 57579 Tracie K. Lindeman Clerk of Supreme Court

RESPONDENTS ANSWERING BRIEF

CATHERINE CORTEZ MASTO Attorney General ROBERT E. WIELAND Senior Deputy Attorney General Nevada Bar No. 890 JARED M. FROST Deputy Attorney General Nevada Bar No. 11132 Appellate Division 5420 Kietzke Lane, Suite 202 Reno, Nevada 89511 Telephone: (775) 850-4115 BWieland@ag.nv.gov Attorneys for Respondent

JONES VARGAS Kevin R. Stolworthy, Esq. Nevada Bar No. 2798 Bardley Scott Schrager, Esq. Nevada Bar No. 10217 Conor P. Flynn, Esq. Nevada Bar No. 11569 3773 Howard Hughes Parkway Third Floor South Las Vegas, Nevada 89169 Telephone: (702) 862-3300

Attorneys for Appellant

Docket 57579 Document 2011-28335

1 2 3 4 5 6 7 8 9 2. 10 11 12 4. 13 14 15 16 6. 17 18 19 20 21 22 23 24 25 26 27 28 V. B. 5. 3.

TABLE OF CONTENTS TABLE OF CASES AND AUTHORITIES CITED..................................................................................ii I. II. III. IV. STATEMENT OF THE ISSUES...................................................................................................1 STATEMENT OF FACTS ............................................................................................................1 SUMMARY OF THE ARGUMENT.............................................................................................2 ARGUMENT .................................................................................................................................2 A. The District Court Correctly Upheld The Constitutionality Of NRS 293.805 Because The States Interest In Protecting The Integrity Of The Voter Registration Process Outweighs Any Burden To Busefinks First Amendment Rights ....................................................................................................2 1. States have broad authority to establish rules to ensure the integrity of the electoral process...........................................................................................3 Laws regulating elections, but which also burden political speech protected by the First Amendment, are evaluated under the framework set forth in Anderson v. Celebrezze .....................................................3 Because NRS 293.805 is neither discriminatory nor a severe burden on political speech, strict scrutiny is unwarranted .....................................4 The legislative history of NRS 293.805, evidence presented at the preliminary hearing, and the experience of other states demonstrate that the statute serves Nevadas interest in protecting the integrity of the voter registration process .............................................................................6 The States compelling interest in protecting the integrity of the voter registration process justifies any burden resulting from NRS 293.805 ..........................................................................................................8 NRS 293.805 should be upheld even under strict scrutiny ....................................8

The District Court Correctly Upheld The Constitutionality Of NRS 293.805 Because The Statute Is Sufficiently Clear To Provide Notice Of The Proscribed Conduct And Does Not Violate Due Process ......................................9 1. 2. 3. The vagueness doctrine ..........................................................................................9 NRS 293.805 should be read to incorporate a general intent requirement under NRS 193.190..........................................................................10 NRS 293.805 sets forth specific standards and does not encourage arbitrary or discriminatory enforcement...............................................................11 a. b. The term registers is sufficiently clear..................................................11 The term based upon is sufficiently clear .............................................12

CONCLUSION ............................................................................................................................13

CERTIFICATE OF COMPLIANCE .......................................................................................................13 CERTIFICATE OF SERVICE.................................................................................................................14

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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 CASES

TABLE OF CASES AND AUTHORITIES CITED

Anderson v. Celebrezze, 460 U.S. 780 (1983) ......................................................................................................................2, 3, 4 Berry v. State, 212 P.3d 1085 (Nev. 2009)..................................................................................................................10 Burdick v. Takushi, 504 U.S. 428 (1992) ..........................................................................................................................3, 8 Carrington v. Rash, 380 U.S. 89 (1965) ................................................................................................................................3 City of Las Vegas v. Dist. Ct., 118 Nev. 859, 59 P.3d 477 (2002).................................................................................................10, 11 City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) ................................................................................................................................7 Desert Valley Water Co. v. State, Engineer, 104 Nev. 718, 766 P.2d 886 (1988).......................................................................................................9 Flamingo Paradise Gaming, LLC v. Chanos, 2009 Nev. 39, 217 P.3d 546 (2009).......................................................................................................9 Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) ..............................................................................................................................7 Holder v. Humanitarian Law Project, 561 U.S. __, 130 S.Ct. 2705 (2010) ......................................................................................................9 Initiative & Referendum Institute v. Jaeger, 241 F.3d 614 (8th Cir. 2001) .............................................................................................................6, 7 Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959) ................................................................................................................................3 League of Women Voters of Fla. v. Cobb, 447 F.Supp. 2d. 1314 (S.D. Fla. 2006)..................................................................................................4 Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) ..............................................................................................................................7 Manning v. Warden, 99 Nev. 82, 659 P.2d 847 (1983).........................................................................................................11 Meyer v. Grant, 486 U.S. 414 (1988) ..........................................................................................................................4, 5 Munro v. Socialist Workers Party, 479 U.S. 189 (1986) ..............................................................................................................................7 Norman v. Reed, 502 U.S. 279 (1992) ..............................................................................................................................4 Person v. New York State Board of Elections, 467 F.3d 141 (2d Cir. 2006) ..................................................................................................................7 Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006) .................................................................................................................7 Project Vote v. Blackwell, 455 F.Supp. 2d. 694 (N.D. Ohio 2006) .................................................................................................4 -ii-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 STATUTES 19 20 21 22 23 24 25 26 27 28 CASES

TABLE OF CASES AND AUTHORITIES CITED

Project Vote v. Kelly, 2011 WL 3204752 (W.D. Pa. July 27, 2011) ................................................................................5, 6, 8 Purcell v. Gonzalez, 549 U.S. 1 (2006) ..............................................................................................................................3, 8 Ranson v. State, 99 Nev. 766, 670 P.2d 574 (1983).......................................................................................................10 Reynolds v. Sims, 377 U.S. 533 (1964) ..............................................................................................................................3 Sheriff, Washoe County v. Burdg, 118 Nev. 853, 59 P.3d 484 (2002).......................................................................................................11 Silvar v. Dist. Ct., 122 Nev. 289, 129 P.3d 682 (2006).......................................................................................................9 Skilling v. United States, 561 U.S. __, 130 S.Ct. 2896 (2010) ....................................................................................................10 State v. Castaneda, __ Nev. __, 245 P.3d 550 (Nev. 2010) ............................................................................................9, 11 Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) ..............................................................................................................................8 Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) ..............................................................................................................................4 Williams v. Rhodes, 393 U.S. 23 (1968) ................................................................................................................................3 Winnerford H. v. State, 112 Nev. 520, 915 P.2d 291 (1996)...............................................................................................10, 11

Nev. Rev. Stat. 193.050(3).......................................................................................................................11 Nev. Rev. Stat. 193.190 .....................................................................................................................10, 11 Nev. Rev. Stat. 200.366(1).......................................................................................................................10 Nev. Rev. Stat. 293.517 ...........................................................................................................................11 Nev. Rev. Stat. 293.517(1)(a) ..................................................................................................................12 Nev. Rev. Stat. 293.517(5).......................................................................................................................12 Nev. Rev. Stat. 293.800 .............................................................................................................................9 Nev. Rev. Stat. 293.800(4).....................................................................................................................8, 9 Nev. Rev. Stat. 293.800(5)(a) ....................................................................................................................8 Nev. Rev. Stat. 293.805 .........................................................................1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 Nev. Rev. Stat. 293.805(a) .................................................................................................................11, 12

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TABLE OF CASES AND AUTHORITIES CITED CONSTITUTIONAL PROVISIONS U.S. Const. Amend. I .................................................................................................................................3 U.S. Const. Art. I, 4, Cl. 1.......................................................................................................................3

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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. 2. vs.

IN THE SUPREME COURT OF THE STATE OF NEVADA

AMY ADELE BUSEFINK, Appellant,

THE STATE OF NEVADA, Respondent.

) ) ) ) ) ) ) ) )

Case No. 57579

RESPONDENTS ANSWERING BRIEF The Respondent, State of Nevada, by and through counsel, Catherine Cortez Masto, Attorney General for the State of Nevada, hereby submits this answering brief. I. STATEMENT OF THE ISSUES

Does NRS 293.805 unconstitutionally burden speech protected by the First Amendment? Is NRS 293.805 unconstitutionally vague? II. STATEMENT OF FACTS

In May 2009, the State charged Appellant Amy Adele Busefink (Busefink), Christopher Edwards, and the Association of Community Organizations For Reform Now, Inc. (ACORN) with multiple violations of NRS 293.805, Nevadas statute prohibiting the compensation of voter registration canvassers based on the total number of voters registered. Joint Appendix (J.App.) at 1-33. These charges stemmed from an eight-month investigation of ACORNs Las Vegas voter registration activities conducted by the Secretary of State in response to complaints of voter fraud filed by the Clark County Registrar of Voters. See id. at 58. In the course of their inquiry, investigators for the Secretary of State determined that canvassers employed by ACORN had submitted fraudulent voter registration applications. Id. at 59. However, the investigators were unable to identify the individual canvasser or canvassers who submitted the fraudulent applications. ACORNs canvassers were prosecuted for voter fraud. Id. In addition to the fraudulent voter applications, the Secretary of States investigation uncovered an illegal compensation program that had been implemented by ACORNs Las Vegas management. -1Id. Consequently, none of

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Id. at 53, 83. The program was called Blackjack or 21 in reference to the popular casino game, and provided a $5 bonus for canvassers who registered at least 21 voters during their shift. Id. at 53. The bonus program was first suggested by Christopher Edwards, ACORNs state field director for Nevada, id. at 82-83, and approved by Busefink, who was Edwards direct supervisor, id. at 83-84. In November 2010, Busefink entered an Alford plea to two counts of conspiracy to violate NRS 293.805. Id. at 236-46. The district court accepted the plea and adjudicated Busefink guilty on January 8, 2011. Id. 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 speech protected by the First Amendment, and that the statute is not vague in violation of due process. Busefink has failed to show either that the statute is discriminatory or a severe burden on political speech, and strict scrutiny is therefore unwarranted. Under the less exacting scrutiny set forth in Anderson v. Celebrezze, Nevadas indisputably compelling interest in preserving the integrity of the election process outweighs any burden to speech protected by the First Amendment. Busefink has also failed to show that NRS 293.805 does not comply with the specificity requirements of due process, as the statute clearly and unambiguously prohibits one method of compensating voter registration canvassers. IV. A. ARGUMENT

The District Court Correctly Upheld The Constitutionality Of NRS 293.805 Because The States Interest In Protecting The Integrity Of The Voter Registration Process Outweighs Any Burden To Busefinks First Amendment Rights In its order denying Busefinks motion to dismiss, the district court upheld the constitutionality

of NRS 293.805, finding that the States interest in protecting the integrity of Nevadas voter registration process outweighed any burden to Busefinks First Amendment rights. J.App at 233. Busefink argues on appeal that NRS 293.805 is unconstitutional because it burdens core political speech and is not narrowly tailored to serve a compelling state interest. Opening Brief at 5. This argument should be rejected. ... ... -2-

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1.

States have broad authority to establish rules to ensure the integrity of the electoral process

The Constitution of the United States expressly provides that state legislatures are to prescribe [t]he Times, Places and Manner of holding Elections for Senators and Representatives. U.S. Const. Art. I, 4, Cl. 1. And the Supreme Court of the United States has long recognized that States have broad powers to determine the conditions under which the right of suffrage may be exercised, Carrington v. Rash, 380 U.S. 89, 91 (1965) (quoting Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50 (1959)), and a compelling interest in preserving the integrity of [the] election process, Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam) (citation omitted). This authority reflects the fact that [v]oter fraud drives honest citizens out of the democratic process and breeds distrust of our government, and that [t]he right of suffrage can be denied by a debasement or dilution of the weight of a citizens vote just as effectively as by wholly prohibiting the free exercise of the franchise. Id. (quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964)). 2. Laws regulating elections, but which also burden political speech protected by the First Amendment, are evaluated under the framework set forth in Anderson v. Celebrezze

The First Amendment, as applied to the states by virtue of the Fourteenth Amendment, prohibits states from enacting laws which abridge the freedom of speech. U.S. Const. Amend. I. State laws regulating elections may impinge on a number of expressive or associational rights protected by the First Amendment. See Williams v. Rhodes, 393 U.S. 23, 30 (1968). Nevertheless, because states must 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 individual voters, the United States Supreme Court has stressed that not every voting regulation that imposes [a] burden upon [individual voters] must be subject to strict scrutiny. Burdick v. Takushi, 504 U.S. 428, 432-33 (1992). Rather, a more flexible standard applies. Id. at 434. Under that approach, when a state election law provision imposes only reasonable, nondiscriminatory restrictions on an individuals right to vote, the States important regulatory interests are generally sufficient to justify the restrictions. Id. (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)). In contrast, when the ... -3-

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right to vote is subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance. Id. (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)).1 3. Because NRS 293.805 is neither discriminatory nor a severe burden on political speech, strict scrutiny is unwarranted

Here, the challenged statute is neither discriminatory nor does it represent a severe burden on political speech, and this Court should apply less exacting scrutiny in evaluating its constitutionality. The full text of NRS 293.805 is as follows: 1. It is unlawful for a person to provide compensation for registering voters 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 a category E felony and shall be punished as provided in NRS 193.130. Accordingly, NRS 293.805 prohibits just one non-discriminatory2 means of compensating canvassers who are employed to register voters. The statute does not preclude voter registration organizers from conducting paid voter-registration drives, paying their employees on an hourly basis, or awarding bonuses based on factors such as reliability or longevity. In addition, nothing in the text of

NRS 293.805 prevents organizers from holding hourly employees to production-based expectations or terminating employees for failing to meet those expectations. Therefore, any burden on political speech 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 be subject to strict scrutiny, because it imposes criminal penalties and prohibits using flexibly-applied production standards. Opening Brief at 9-10. In support of this argument, Busefink relies on Meyer v. Grant, 486 U.S. 414 (1988), and its progeny. Id. at 10; see also id. at 8 (discussing League of Women Voters of Fla. v. Cobb, 447 F.Supp. 2d. 1314 (S.D. Fla. 2006), and Project Vote v. Blackwell, 455 F.Supp. 2d. 694 (N.D. Ohio 2006)). Courts must apply strict scrutiny to statutes that suppress, disadvantage, or impose differential burdens upon speech because of its content. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642 (1994). However, Busefink does not argue that NRS 293.805 is a content-based regulation, see Opening Brief, and nothing in the text of the statute suggests that it should be interpreted as such, see NRS 293.805. 2 Busefink does not argue that NRS 293.805 discriminates against any particular group. See Opening Brief. -41

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Meyer v. Grant involved a constitutional challenge to a Colorado criminal statute prohibiting the payment or receipt of money for the collection of signatures on a ballot initiative.3 Grant, 486 U.S. at 415-16. The United States Supreme Court found that the statute raised First Amendment concerns and observed that it restricted political expression in two ways: First, it limits the number of voices who will convey appellees messages and the hours they can speak and, therefore, limits the size of the audience they can reach. Second, it makes it less likely that appellees will garner the number of signatures necessary to place the matter on the ballot, thus limiting 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 the statute operated to completely foreclose an entire channel of communication that had the inevitable effect of restricting direct one-on-one communication, the most effective, fundamental, and perhaps economical avenue of political discourse. Id. at 423-24. However, Grant is distinguishable from this case in at least two important ways. First,

NRS 293.805 prohibits only one method of paying canvassers. Unlike the Colorado statute at issue in Grant, NRS 293.805 does not foreclose an entire channel of communication by imposing a total ban on payments by political advocacy organizations to their employees to engage in political speech. As previously discussed, nothing in NRS 293.805 prohibits vote registration organizations like ACORN from conducting paid voter-registration drives, paying canvassers on an hourly basis, or awarding 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 recognized in Grant. As noted in Project Vote v. Kelly, 2011 WL 3204752 (W.D. Pa. July 27, 2011), organizers of voter registration drives ... ... In a footnote, Busefink argues that voter registration drives merit significantly greater First Amendment protection than the circulation of ballot measure petitions because [v]oter registration is the core of the core of participation in the American democratic process . . . . Opening Brief at 6 n.1. While the State acknowledges that ACORNs voter registration drives likely involve some speech protected by the First Amendment, these drives are ostensibly non-partisan and canvassers are not charged with advocating for any particular candidate or legislation. See J.App. at 83 (duties of canvassers limited to registration of voters). Therefore, voter registration drives do not involve the same degree of advocacy on behalf of political change as the circulation of ballot measures, nor do they merit any additional First Amendment protection. -53

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. . . are not trying to obtain enough signatures to trigger a referendum or place a candidates name on the ballot. Instead, they are trying to convince potential voters to make themselves eligible to vote for or against candidates who are already the subject of statewide (or nationwide) attention. Since individuals participating in a voter-registration drive do not have to procure a specific number of applications to facilitate a broader discussion, 1713(a) [Pennsylvanias criminal statute prohibiting the payment of canvassers based upon the number of registrations or applications obtained] has no impact on the second First Amendment interest identified in Meyer. 2011 WL 3204752 at *19. Furthermore, Busefink has offered no evidence to show that by eliminating one method of payment, NRS 293.805 deters the number of canvassers willing to work in voter-registration drives. See Opening Brief at 10 (asserting, without more, that [e]xperience has shown that regulations of the manner in which organizations may employ and retain staff severely curtail the amount of outreach that can be accomplished, and therefore the number of voices that can be heard.). Busefink has also failed to identify any actual or potential canvasser who has been deterred by the fact that NRS 293.805 imposes criminal penalties. See id. Consequently, any burden placed on First Amendment speech by NRS 293.805 is de minimus, and strict scrutiny is unwarranted. Initiative & Referendum Institute v. Jaeger, 241 F.3d 614, 618 (8th Cir. 2001) (finding bare assertions of the kind made by Busefink insufficient to subject an electoral statute to strict scrutiny); Kelly, 2011 WL 3204752 at *19-21 (concluding that burden imposed on expressive activities by a Pennsylvania statute that prohibited the same compensation method as NRS 293.805 was de minimus). 4. The legislative history of NRS 293.805, evidence presented at the preliminary hearing, and the experience of other states demonstrate that the statute serves Nevadas 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 Police Department had received numerous complaints of election fraud. J.App. at 193. The complaints centered on deputy field registrars who were falsifying the party affiliation of voters in order to collect a $2 bonus for returning a Democratic application. Id. at 193-94. In an effort to prevent such fraud in the 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 in protecting the integrity of the electoral process because there has been no voter fraud as a result of any -6-

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fictitious registration at issue in this case, and because the State has not prosecuted anyone other than Busefink under the statute. Opening Brief at 15. However, there is no requirement that the State show evidence of fictitious registration in this case for the States interest in preventing such fraud to qualify as important. A State need not wait to suffer harm; it can adopt prophylactic measures to prevent electoral fraud from occurring in the first place. See Munro v. Socialist Workers Party, 479 U.S. 189, 195-96 (1986) (Legislators may respond to potential deficiencies in the electoral process with foresight rather than reactively, provided that the response is reasonable and does not significantly impinge on constitutionally protected rights.). In addition, this case does involve voter fraud. At the preliminary hearing, Colin Haynes, an investigator for the Secretary of State, testified that he and his colleagues responded to voter fraud complaints filed by the Clark County Registrar of Voters and determined that canvassers employed by ACORN had submitted fraudulent voter registration applications. J.App. at 59. The fact that these canvassers were never charged with fraud due to the inability of the investigators to identify them does not mean fraud was never at issue or that NRS 293.805 does not serve Nevadas interest in protecting the integrity of the voter registration process. Furthermore, in various First Amendment contexts, the Supreme Court has recognized that one state can look to the experiences of other states in determining what measures are necessary to protect its interests. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001); Florida Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 5152 (1986). The fact that per-signature payments create incentives for petition circulators to commit fraud has been recognized by three federal appellate courts in decisions sustaining state statutes prohibiting the use of piece-rate and commission-based compensation systems in the initiative and candidate-nomination contexts. Person v. New York State Board of Elections, 467 F.3d 141, 143 (2d Cir. 2006); Prete v. Bradbury, 438 F.3d 949, 969971 (9th Cir. 2006); Initiative & Referendum Institute, 241 F.3d at 617-618. Therefore, the legislative history of NRS 293.805, evidence presented at the preliminary hearing, and the experience of other states demonstrate that the statute serves Nevadas interest in protecting the integrity of the voter registration process. ... -7-

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5.

The States compelling interest in protecting the integrity of the voter registration process justifies any burden resulting from NRS 293.805

Under the less exacting standard of review, a States important regulatory interest will usually be enough to justify reasonable, nondiscriminatory restrictions. Timmons, 520 U.S. at 358 (internal quotation marks omitted). In this case, the States interest in protecting the integrity of the voter registration process is more than sufficient to justify any burden imposed by NRS 293.805. As the United States Supreme Court has recognized, [a] State indisputably has a compelling interest in preserving the integrity of its election process. Purcell, 549 U.S. at 4 (citation omitted); see also J.App. at 233 (district court determining the States interest in protecting the integrity of Nevadas voter registration process outweighed any burden on political speech). Because NRS 293.805 imposes only a minimal burden on political speech, see supra Part III.A.2., Nevadas compelling interest in protecting the integrity of the voter registration process is sufficient to defeat Busefinks challenge. Kelly, 2011 WL 3204752 at *26-27 (upholding validity of similar Pennsylvania statute under less exacting scrutiny, collecting cases, and noting that [i]n every case in which a ban on per-signature payments has been subjected to a less exacting level of judicial scrutiny, the challenged legislative 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 that the statute should be upheld even under strict scrutiny. Strict scrutiny requires that the regulation be narrowly drawn to advance a state interest of compelling importance. Burdick, 504 U.S. at 434 (citation omitted). The United States Supreme Court has already determined that a states interest in protecting the integrity of the electoral process is a compelling interest. Purcell, 549 U.S. at 4. However, to survive strict scrutiny, the statute must also be narrowly drawn to effectuate that interest. Busefink argues that NRS 293.805 is not narrowly drawn to protect the integrity of the electoral process because Nevada has at least two other laws designed to combat voter fraud: NRS 293.800 subsections (5)(a) and (4). Opening Brief at 15. Subsection (5)(a) provides a criminal penalty for field registrars who knowingly falsify, or knowingly cause to be falsified, a voter registration application. NRS 293.800(5)(a). Subsection (4) makes it a crime for any person to induce, aid, or abet -8-

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another person who causes or endeavors to cause his or her name to be registered, knowing that he or she is not an elector . . . . NRS 293.800(4). While these laws do address election fraud, they do not target the particular compensation method the Nevada legislature deemed to be problematic. The Nevada legislature could have

reasonably determined that NRS 293.805 was necessary to eliminate an incentive to falsify voter information occasioned by this method of compensation, irrespective of whether the fraud itself was already forbidden by NRS 293.800. Consequently, NRS 293.805 is narrowly tailored to protect

Nevadas compelling interest in protecting the integrity of electoral process, and should be upheld even under strict scrutiny. B. The District Court Correctly Upheld The Constitutionality Of NRS 293.805 Because The Statute Is Sufficiently Clear To Provide Notice Of The Proscribed Conduct And Does Not Violate Due Process Busefinks second argument on appeal is that NRS 293.805 is impermissibly vague and violates due process. Opening Brief at 18. Busefink asserts that the statute should be invalidated because it lacks an intent element and because the terms registration, registered, registers, and based upon 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 statute is unconstitutional. Flamingo Paradise Gaming, LLC v. Chanos, 2009 Nev. 39, 217 P.3d 546, 551 (2009) (quoting Silvar v. Dist. Ct., 122 Nev. 289, 292, 129 P.3d 682, 684 (2006)). Statutes must also be interpreted in a reasonable manner, that is, [t]he words of the statute should be construed in light of the policy and spirit of the law, and the interpretation made should avoid absurd results. Desert Valley 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 to provide notice sufficient to enable persons of ordinary intelligence to understand what conduct is prohibited; or (2) if it is so standardless that it authorizes or encourages seriously discriminatory enforcement. Id. at 553 (citing Holder v. Humanitarian Law Project, 561 U.S. at __, __, 130 S.Ct. 2705, 2718 (2010)). -9-

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[M]athematical precision is not possible in drafting statutory language. Id. (citing City of Las Vegas v. Dist. Ct., 118 Nev. 859, 864, 59 P.3d 477, 481 (2002)). In addition, [e]nough clarity to defeat a vagueness challenge may be supplied by judicial gloss on an otherwise uncertain statute, id. (quoting Skilling v. United States, 561 U.S. __ at __, 130 S.Ct. 2896, 2933 (2010)), by giving a statutes words their well-settled and ordinarily understood meaning, id. (quoting Berry v. State, 212 P.3d 1085 (Nev. 2009)), and by look[ing] to the common law definitions of the related term or offense, id. (quoting Ranson v. State, 99 Nev. 766, 767, 670 P.2d 574, 575 (1983)). Nonetheless, the law must, at a minimum, delineate the boundaries of unlawful conduct. Some specific conduct must be deemed unlawful so individuals will know what is permissible behavior and what is not. Id. (quoting City of Las Vegas, 118 Nev. at 864, 59 P.3d at 481). 2. NRS 293.805 should be read to incorporate a general intent requirement under NRS 193.190

Busefink argues that NRS 293.805 is impermissibly vague because it lacks an intent requirement. Opening Brief at 20. It is true that the statute does not refer to a state of mind such as knowingly or recklessly. See NRS 293.805. However, both NRS 193.190 and this Courts

precedents support the district courts holding that NRS 293.805 contains an implied general intent requirement. NRS 193.190, Nevadas general intent statute, provides that [i]n every crime or public offense there must exist a union, or joint operation of act and intention, or criminal negligence. This Court has previously found an implied general intent requirement in a criminal statute where none was stated explicitly. In Winnerford H. v. State, 112 Nev. 520, 915 P.2d 291 (1996), the 10-year-old defendant had been accused of sexual assault. 112 Nev. at 520, 915 P.2d at 291-92. The crime of sexual assault does not contain an explicit intent element. See NRS 200.366(1) (A person who subjects another person to sexual penetration, or who forces another person to make a sexual penetration on himself or herself or another, or on a beast, against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his or her conduct, is guilty of sexual assault.). Nevertheless, this Court found that [s]exual assault is generally considered a general intent crime, and dismissed the charge upon determining that -10-

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the State had not shown the defendant had the required mens rea to commit the crime. Id. at 526, 915 P.2d at 294 (citing Manning v. Warden, 99 Nev. 82, 659 P.2d 847 (1983)). In addition, this Court has expressed a willingness to imply a general intent requirement to criminal statutes where the proscribed conduct is sufficiently clear.4 See City of Las Vegas, 118 Nev. at 866-67, 59 P.3d at 482-83 (rejecting States invitation to find implied general intent requirement 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 that NRS 193.190 does not alleviate the absence of an intent element . . . [if] it is unclear where an intent element would be implied.). As discussed below, NRS 293.805 provides a sufficiently clear

description of the proscribed conduct, and this Court should therefore affirm the district courts holding 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 or discriminatory enforcement

In a mere 25 words, NRS 293.805(a) prohibits in plain language one method of compensating voter registration canvassers. See NRS 293.805(a) (It is unlawful for a person to provide

compensation for registering voters that is based upon: (a) The total number of voters a person registers.). The statute uses common words that can be understood by a person of ordinary

intelligence. In addition, NRS 293.805 gives specific guidelines to law enforcement of the prohibited 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 voter registration organizers do not register voters as that term is used in NRS 293.517; instead, they request and distribute applications for registration. Id. at 21. Busefink also points to a proposed amendment to NRS 293.805 in support of her contention that these terms are ambiguous. Id.

This Court has also incorporated an intent requirement to a criminal statute by reference to the common law understanding of the crime. Castaneda, 245 P.3d at 554; see also NRS 193.050(3) (The provisions of common law relating to the definition of public offenses apply to any public offense which is so prohibited but is not defined, or which is so prohibited but is incompletely defined.). -11-

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This argument lacks merit. The State notes as a preliminary matter that NRS 293.805 does not include the terms registration or registered. See NRS 293.805. As for registers,

NRS 293.517(1)(a) provides that any elector may register to vote by appearing before the county clerk, a field registrar or a voter registration agency, completing the application . . . and providing proof of residence and identity (emphasis added). The statute goes on to state that an elector who registers to vote pursuant to paragraph (a) of subsection 1 shall be deemed to be registered upon the completion of an application to register to vote. NRS 293.517(5). Therefore, a review of Nevadas electoral statute supports the view that a person of ordinary intelligence would understand the term registers as used in NRS 293.805 to include the work of voter registration canvassers. In addition, the evidence presented at the preliminary hearing shows ACORN employees used the term register in the same 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 is impermissibly vague since that language has been rejected and also includes the terms Busefink finds ambiguous. See Opening Brief at 21 (acknowledging the amendment did not pass and quoting proposed language). b. The term based upon is sufficiently clear

Busefinks final argument is that NRS 293.805 is impermissibly vague because the term based upon is ambiguous. Opening Brief at 21-23. As the State understands it, Busefink is asserting that a person of ordinary intelligence would not understand that paying canvassers a bonus for exceeding daily registration goals is prohibited by the statute, since a bonus system may be in addition to, or supplement, an hourly payment system. See id. at 22 (Clearly, there is no indication or allegation that Ms. Busefink conspired to pay canvassers per each application for registration to vote. How is it clear that the prohibition in the statute targets the conduct at issue in this case?), 1 (stating Busefink was charged under NRS 293.805 because she paid $5 bonuses to persons exceeding the daily voter registration goals). This argument should also be rejected. A monetary bonus is compensation, and therefore prohibited under the statute if the bonus is based upon the total number of voters registered, regardless of whether it is part of a larger system that involves paying canvassers by the hour. See NRS 293.805(a). In addition, nothing in the text of NRS 293.805 suggests that combining the -12-

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forbidden compensation method with other methods would somehow be permissible under the statute. See id. NRS 293.805 clearly prohibits compensating canvassers based on the total number of voters registered, and this Court should reject Busefinks argument that it is impermissibly vague and violates due process. V. CONCLUSION

The judgment of the district court should be affirmed. DATED this 16th day of September, 2011. CATHERINE CORTEZ MASTO Attorney General By: /s/ Jared M. Frost JARED M. FROST Deputy Attorney General

CERTIFICATE OF COMPLIANCE I hereby certify that I have read this appellate brief and to the best of my knowledge, information, and belief, it is not frivolous or interposed for any improper purpose. I further certify that this brief complies with all applicable Nevada Rules of Appellate Procedure, in particular NRAP 28(e), which requires every assertion in the brief regarding matters in the record to be supported by appropriate references to the record on appeal. I understand that I may be subject to sanctions in the event that the accompanying brief is not in conformity with the requirements of the Nevada Rules of Appellate Procedure. DATED this 16th day of September, 2011. CATHERINE CORTEZ MASTO Attorney General By: /s/ Jared M. Frost JARED M. FROST Deputy Attorney General

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CERTIFICATE OF SERVICE I certify that I am an employee of the Office of the Attorney General and that on this 16th day of September, 2011, I served a copy of the foregoing RESPONDENTS ANSWERING BRIEF, by electronic filing to: Kevin R. Stolworthy, Esq. Bradley Scott Schrager, Esq. JONES VARGAS 3773 Howard Hughes Parkway, Third Floor South Las Vegas, Nevada 89169 /s/ Dorene A. Wright

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