IN THE SUPREME COURT OF THE STATE OF NEVADA

NEVADA STATE DEMOCRATIC No. 89186

PARTY, A NEVADA POLITICAL PARTY
COMMITTEE,
Appellant, 0.11-1P-
LE
vs.
NEVADA GREEN PARTY, A NEVADA SEP 0 6 2024
POLITICAL PARTY COMMITTEE; AND ?ELIZABETH ROWN

FRANCISCO V. AGUILAR, IN HIS

OFFICIAL CAPACITY AS NEVADA
SECRETARY OF STATE,
Res s ondents.

ORDER OF REVERSAL AND REMAND

AND DIRECTING IMMEDIATE ISSUANCE OF REMITTITUR

This is an appeal from a district court order denying declaratory

and injunctive relief in an election matter. First Judicial District Court,
Carson City; Kristin Luis, Judge.
Respondent Nevada Green Party (Green Party) is a certified
minor political party in Nevada and wishes to place its candidates on the
2024 general election ballot. To gain ballot access, the Green Party
circulated a petition and gathered signatures. However, the petition the
Green Party circulated contained the circulator affidavit for initiative and
referendum petitions, instead of the circulator affidavit for minor party
ballot access. The affidavits are different. The circulators of minor party
ballot access petitions must verify that they believe each person signing the
petition is a registered voter in the county of his or her residence. That

SUPREME COURT

OF
NEVADA

I( J) 1947A 4.1rgpa:
 verification is not required in the circulator affidavit for initiative and
referendum petitions. Appellant, the Nevada State Democratic Party
(Democratic Party), filed a timely challenge to the Green Party's petition
and an amended complaint asserting that all the Green Party's signatures
were invalid because of the incorrect circulator affidavit. The district court
denied the Democratic Party's challenge, concluding first that the
Democratic Party had the burden of proof and second that the Democratic
Party failed to show that the Green Party had not substantially complied
with the requirements for the circulator affidavit.
The district court properly considered the amended complaint
As an initial matter, we reject the Green Party's argument that
the district court erred by considering the arguments raised in the amended
complaint. NRS 293.174 provides that "[i]l' the qualification of a minor
political party to place the names of candidates on the ballot pursuant to
NRS 293.1715 is challenged, all affidavits and documents in support of the
challenge must be filed not later than 5 p.m. on the second Monday in June."
The second Monday in June this year was June 10, 2024, the date the
Democratic Party filed its complaint.
The amended complaint did not raise a new challenge to the
Green Party's petition. It merely expanded upon the Democratic Party's
argument as to why the petition was invalid. The original complaint
asserted that "the Green Party's petition did not satisfy NRS 293.1715 or
NRS 293.172 and is invalid," primarily because it did not include sufficient
verified signatures. A provision in one of the referenced statutes requires a
minor party's petition for ballot access to "[i]nclude the affidavit of the
person who circulated the document verifying that the signers are
registered voters in this State according to his or her best information and

SUPREME COURT
OF
N EVADA
2
()) I q47 ,\
 belief." NRS 293.172(1)(b). Thus, the original complaint had put the Green
Party on notice that the Democratic Party may assert that the petition did
not comply with the circulator affidavit requirements, including that the
circulator verified the signers' voter registration statuses. Accordingly, the
amended complaint related back to the original complaint, and the district
court properly considered the arguments raised in the amended complaint.
See NRCP 15(a)(1), (c) (permitting a party to amend its pleading and have
the amendment relate back to the date of the original pleading if "the
amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out—in the
original pleading").
The Green Party had the burden to prove substantial compliance
Next, we agree with the Dernocratic Party that the district court
erred in placing the burden of proof on the Democratic Party to demonstrate
that the Green Party did not substantially comply with the circulator
affidavit requirements. The district court properly recognized that the

initial burden of proof as to the petition's invalidity falls on the challenger

(here, the Democratic Party). See, e.g., Helton v. Neu. Voters First PAC, 138
Nev. 483, 485-86, 512 P.3d 309, 313 (2022) (placing the burden of proof on
the challenger to an initiative petition). But the court failed to recognize
that the Democratic Party met that initial burden by showing that the
Green Party failed to comply with the circulator affidavit requirement. At
that point the burden shifted to the Green Party to demonstrate substantial
compliance. This burden shifting is appropriate because substantial
compliance is a defense to the claim that a party did not comply with the
law. See, e.g., Delaware Cty v. Powell, 393 N.E.2d 190, 191-92 (Ind. 1979)
(describing substantial compliance as a defense and placing the burden of

SUPREME COURT
OF
NEVADA

3
(1) I947A
 proof on the defendant); State, Dep't of Highway Safety & Motor Vehicles v.
Wejebe, 954 So.2d 1245, 1248-49 (Fla. Dist. Ct. App. 2007) (explaining that

once a party proves a lack of compliance, the burden shifts to the other party
to prove substantial compliance). Thus, we conclude the district court erred
in placing the burden on the Democratic Party to prove the Green Party did
not substantially comply with the statutory and regulatory requirements
for circulator affidavits.
The Green Party did not substantially comply with the requirements for a
circulator affidavit
The district court also erred when it concluded that the Green

Party had substantially complied with the statutory and regulatory

requirements for circulator affidavits. We generally review a determination
of substantial compliance for an abuse of discretion. Schleining v. Cap One,
Inc., 130 Nev. 323, 330, 326 P.3d 4, 8 (2014). But here, we conclude that a
mixed review standard applies because there are no relevant factual
disputes and because the issue implicates legal issues—the interpretation
and construction of the statute and regulation that are generally reviewed

de novo, Pub. Emps.' Ret. Sys. of Nev. v. Reno Newspapers, Inc., 129 Nev.
833, 836, 313 P.3d 221, 223 (2013).
The parties agree that substantial, not strict, compliance
applies here. See Las Vegas Conuention and Visitors Auth. v. Miller
(LVCVA), 124 Nev. 669, 682-83, 191 P.3d 1138, 1147 (2008) (explaining that
this court generally looks for substantial compliance in the election context);
Nevadans for Nev. v. Beers, 122 Nev. 930, 947-48, 142 P.3d 339, 350-51
(2006) (providing that for initiative petitions, strict compliance is required
for Constitutional provisions, whereas substantial compliance may be okay
for statutory provisions). "The substantial-compliance standard recognizes
performance as adequate where the reasonable purpose of a statute has
SUPREME COUR/
OF
NEVADA
4
(Cl I q..17A
 been met, even absent technical compliance with the statutory language."
BMO Harris Bank, N.A. v. Whittemore, 139 Nev., Adv. Op. 31, 535 P.3d 241,
245 (2023). Thus, "[c]ourts have defined substantial compliance as
compliance with essential matters necessary to ensure that every
reasonable objective of the statute is met." Williams v. Clark Cnty. Dist.
Att'y, 118 Nev. 473, 480, 50 P.3d 536, 541 (2002). We have recognized,
however, that "the complete failure to meet a specific requirement of a
statute will result in a lack of substantial compliance." Choy v. Ameristar
Casinos, Inc., 127 Nev. 870, 872, 265 P.3d 698, 700 (2011); see also LVCVA,
124 Nev. at 684, 191 P.3d at 1148.
The circulator affidavit used by the Green Party omitted a
legally required element: the attestation that each signatory was a
registered voter in the county of his or her residence. See NRS

293.172(1)(b), (d); NAC 293.182(2)(b). It would be error to say that one did
not have to comply with this required element because the requirement
arose out of a regulation. Regulations have the force of law. See Kassebaurn
v. Dep't of Corrs., 139 Nev., Adv. Op. 34, 535 P.3d 651, 656 (2023)
(explaining that regulations adopted through the appropriate procedure
"have the force and effect of law" (internal quotation marks omitted)). Thus,
the Green Party was required to comply with both NRS 293.172 and NAC
293.182. Further, a failure to comply with such legal requirements typically
results in a lack of substantial conipliance, unless evidence is submitted to
the contrary. See LVCVA, 124 Nev. at 683. 191 P.3d at 1147 (noting that in
several Nevada cases "the complete failure to meet a specific requirement
was found not to constitute substantial compliance"). For us to conclude
otherwise would render the relevant portion of NRS 293.172 and NAC
293.182 nugatory. See id. at 686, 191 P.3d at 1149.

SUPREME COURT
OF
NEVADA

5
(0) 1947A .4g".
 The circulator affidavits provide a level of fraud prevention that
other procedures, such as validating a sample of signatures, cannot provide.
See, e.g., Sakonyi v. Lindsey, 634 N.E.2d 444, 447 (Ill. App. Ct. 1994)
(recognizing that "the circulator's affidavit requirement is considered a
meaningful and realistic method of eliminating fraudulent signatures and
protecting the integrity of the political process"); Larson v. Hazeltine, 552
N.W.2d 830, 836 (S.D. 1996) (same); Whitley u. Maryland State Bd. of
Elections, 55 A.3d 37, 53 (Md. Ct. App. 2012) ("The purpose of the
circulator's attestation is to assure the validity of the signatures and the
fairness of the petition process, prevent fraud in the petition process, and
provide an additional guarantee of trustworthiness to the signature of the
voter." (internal citations and quotation marks omitted)). Depending on
how many signatures are gathered in a county, Nevada law permits the
county clerk to validate the signatures using a sampling process. See NRS
293.1277(2) (providing that if more than 500 signatures have been gathered
in the county, the county clerk may select a random sample of 500
signatures or 5 percent of the signatures, whichever is greater, to verify).
Thus, in some Nevada counties, it is unlikely that county clerks would ever
verify all the signatures. In those circumstances, the circulator's
attestation in the affidavit serves as the only level of fraud prevention for
those signatures not included in the random sampling. See Whitley, 55 A.3d
at 53-54 (discussing how a circulator's affidavit serves as "an independent
check on the validity of the petition signatures").
The circulator's attestation also provides an additional
verification that is not addressed at all through the county clerk's signature
verification process. In particular, the attestation not only attests to the
fact that the signatory is a registered voter in the county, but it also attests

SUPREME COURT
OF
NEVADA

6
WI 19.17A
 to the fact that the signatory is a registered voter in the county of his or her
residence. The sampling verification of signatures does not confirm

whether a person is registered in the county of his or her residence. The

county of residence is particularly relevant to a petition for minor party
ballot access. Such a petition must bear a certain number of signatures
from voters in each congressional district. NRS 293.1715. By requiring the
petition circulator to attest that each signatory is registered to vote in the
county of his or her residence, NRS 293.172 and NAC 293.182 provide some
assurance that the petition complies with the requirements for minor party
ballot access. Thus, the attestation missing from the Green Party's

circulator affidavits serves an essential purpose, such that failure to include

that attestation defeats the Green Party's substantial compliance

argument.
The evidence presented by the Green Party was also

insufficient to demonstrate that its circulators complied with the statutory

and regulatory requirements despite the missing attestation in their
affidavits. First, the declarations provided by some of the Green Party's
circulators do not demonstrate substantial compliance in practice. Those
declarations do not indicate that the circulators were asking signatories if
they were a registered voter in the county of the signatory's residence.
Second, the declaration from the CEO of a circulation company used by the
Green Party merely demonstrates the company's best practices and
procedures. It does not demonstrate what each employee circulator did
when collecting signatures for the Green Party's petition. LVCVA, 124 Nev.
at 687, 191 P.3d at 1150. Thus, the Green Party did not demonstrate

substantial compliance with the circulator affidavit requirements in

practice.

SUPREME COURT
OF
NEVADA
7
(0) I947A
 Lastly, the Green Party's failure to use the correct circulator
affidavit cannot be excused by the Green Party's reliance on the sample
petition received from the Secretary. A political party cannot demonstrate
compliance with the law based on mistaken guidance received from a
government entity when the "[g]overnment has a duty to correct any
previous mistakes in enforcing the law it might have made." See United
States v. Undetermined Quantities of Clear Plastic Bags of an Article of
Drug for Veterinary Use, 963 F. Supp. 641, 646-47 (S.D. Ohio 1997)
(explaining that a failure to properly enforce the law, does not waive the
law). Further, permitting a minor party to be placed on the ballot when the
party failed to comply with the legal requirements for such placement
negates the requirements that were put in place for the public's benefit.
See, e.g., Reform Party of Ala. v. Bennett, 18 F. Supp. 2d 1342, 1354 (M.D.
Ala. 1998) (providing that a failure to enforce ballot-access laws not only
harms voters but also violates the rights of political party that complied
with the law in accessing the ballot). Thus, regardless of what it received
from the Secretary, the Green Party still had a duty to comply with the legal
requirements for circulator affidavits, and it did not do so.
Therefore, we conclude the record does not support the district
court's finding that the Green Party substantially complied with the
statutory and regulatory requirements that circulator affidavits on minor
party ballot access petitions attest to the registration of the signers as voters
in their county of residence.
The Green Party's rights are not violated
Lastly, we reject the Green Party's arguments that invalidating
the signatures on its petition will violate its substantive due process and
equal protection rights. We address each argument in turn.

SUPREME COURT
OF
NEVADA
8
((>) 1)47A
 Substantive due process
It is undisputed that minor political parties have a
constitutional right to seek ballot access for their candidates. Norman v.
Reed, 502 U.S. 279, 288 (1992). "Substantive due process protects certain
individual liberties against arbitrary government deprivation regardless of
the fairness of the state's procedure." Eggleston v. Stuart, 137 Nev. 506,
510, 495 P.3d 482, 489 (2021).
We acknowledge that a Secretary of State employee emailed a
sample petition to the Green Party, including the incorrect circulator
affidavit, which the Green Party then used. While the petition the Green
Party originally submitted to the Secretary had the correct circulator
affidavit, the petition had a different error: it did not include a blank space
for the petition district. Thus, by email the Secretary's employee notified
the Green Party of that error and attached a form petition for the Green
Party's use, which included the space for the petition district.
Unfortunately, the form petition inadvertently included the wrong
circulator affidavit. A cursory review of the circulator affidavit by either
the Secretary or the Green Party would have found this mistake. However,
the emails between the Secretary's office and the Green Party never
discussed the circulator affidavit.
Thus, there is no evidence that the email was anything but an
unfortunate mistake or that the Secretary intended to mislead the Green
Party. Further, the Secretary's employee also directed the Green Party to
The Minor Party Qualification Guide 2024, which contained guidance on
the proper circulator affidavit and also included citations to the relevant
laws, NRS 293.172 and NAC 293.182. The statute and regulation were
readily available to the Green Party, and the Secretary did not prevent the

SUPREME COURT
OF
NEVADA
9
(0)
 Green Party from complying with the requirements for circulator affidavits.
If the Green Party had reviewed the petition before using it, it would have
discovered the incorrect circulator affidavit as the Green Party was clearly
aware of the legal requirements for the affidavit considering it had used the
correct affidavit in its original petition. This is an unfortunate oversight on
the part of both the Secretary and the Green Party. Thus, the Secretary's
actions do not rise to the level of government infringement or an egregious
governmental abuse that shocks the conscience for purposes of a
substantive due process violation. See Eggleston, 137 Nev. at 510, 495 P.3d
at 489 (explaining that substantive due process "does not protect against all
government infringement, but is reserved for the most egregious

governmental abuses against liberty or property rights, abuses that shock

the conscience or otherwise offend judicial notions of fairness and that are

offensive to human dignity" (internal quotation marks omitted)).

Equal protection
"The threshold question in equal protection analysis is whether
a statute effectuates dissimilar treatment of similarly situated persons."
Rico v. Rodriguez, 121 Nev. 695, 703, 120 P.3d 812, 817 (2005). The Green
Party's equal-protection argument focuses on differences between the
requirements for circulator affidavits that apply to minor party ballot access
petitions and those that apply to initiative and referendum petitions.
We are not convinced that minor parties seeking ballot access
and proponents of initiative or referendum petitions are similarly situated.
The circulator affidavits that each must use are different because the
petitions implicate different interests and legal requirements. For example,
the circulator affidavit for initiative or referendum petitions includes an
attestation that the signatories were given the opportunity to review the

SUPREME COURT
OF
N EVADA

10
( 0) 1947A <AD,
 initiative or referendurn. NRS 295.0575; LVCVA, 124 Nev. at. 686, 191 P.3d
at 1149 (explaining that a signatory needs to have an opportunity to review
the initiative or referendum to truly understand what they are supporting).
The same is not required for minor party ballot access because the
signatories are not being asked to put a substantive question on the ballot.
And whereas Nevada law requires that a petition for minor party ballot
access include signatures from a certain number of voters in each
Congressional district, NRS 293.1715, there is no similar requirement for
initiative or referendum petitions. The Green Party is rnore similarly

situated to independent political party candidates, who must utilize similar

circulator affidavits as minor political party candidates. Compare NRS

293.200(2) (requiring a circulator of a petition for an independent

candidate's ballot access to attest that the signatures are from a "person
registered to vote in that county"), with NRS 293.172(1)(b) (requiring a

circulator of a petition for minor party ballot access to attest that "signers
are registered voters in this State"). Accordingly, the Green Party has not
demonstrated that invalidating the signatures it gathered because it used
the wrong circulator affidavit results in an equal-protection violation.'
The district court erred by denying the Democratic Party's

request for declaratory and injunctive relief. The Green Party did not

substantially comply with the requirements for circulator affidavits, and

thus, the Green Party's signatures must be invalidated. See LVCVA, 124
Nev. at 690, 191 P.3d at 1152 (recognizing that invalidation of signatures is

'While the parties discuss the Anderson/Burdick framework adopted

by the U.S. Supreme Court to determine the scrutiny that applies to election
regulations, see Arizona Democratic Party v. Hobbs, 18 F.4th 1179, 1186
(9th Cir. 2021), the Green Party does not assert that NRS 293.172 or NAC
293.182 are unconstitutional under that framework.
SUPREME COURT
OF
NEVADA
11
(0) I947A
 the appropriate remedy for a deficient circulator affidavit). Accordingly, we
reverse the district court's order and renaand for the district court to enter
an order granting injunctive relief. Because of the expediency with which
the parties need relief due to the impending deadline for changes to election
ballots, we direct the clerk of this court to issue the remittitur immediately
so that the district court may expeditiously comply with our mandate. See
NRAP 41(b) (permitting the court to shorten the time for remittitur to
issue).
It is so ORDERED. 2

Cadish

Stiglich

Lee

Parraguirre

Bell

2We grant the August 30, 2024, motion for leave to file amicus brief
in support of respondent.
SUPREME COURT
OF
NEVADA
12
(0) I 947A
 HERNDON, J., with whom PICKERING, j., agrees, concurring in part and
dissenting in part:
While I concur with the majority's conclusion that the district
court erred by placing the burden of proof regarding substantial compliance
on the Democratic Party, I respectfully dissent for two reasons. First, in my
opinion, the Green Party demonstrated substantial compliance. Second, I
am deeply concerned that our decision today excuses an egregious error by
the Secretary of State's office that will result in a significant injustice and I
am convinced that, under the circumstances presented in regard to that
error, invalidating the signatures violates the Green Party's substantive
due process rights.
The Green Party demonstrated substantial compliance
The majority's consideration of what is required for a circulator

affidavit on a minor party petition for ballot access is too expansive. This
court is limited to considering if the minor party substantially complied
with the statutory requirements, which the Green Party did here. NRS
293.172(1)(b) requires a circulator affidavit "verifying that the signers are
registered voters in this State according to his or her best information and
belief and that the signatures are genuine and were signed in his or her
presence." The statute does not require a circulator to attest that he or she
believes each signatory is a registered voter in the county of the signatory's
residence. The declarations provided by the Green Party demonstrate that
the Green Party's circulators asked the signatories if they were residents of
Nevada and registered voters. In addition to declarations from individual

circulators, the Green Party also provided a declaration from the CEO of
the petition circulation company the Green Party used. The CEO stated
that he trained the circulators that worked for him to ask signatories if they
SUPREME COURT
OF
NEVADA
13
10) 1947A
 were registered voters in Nevada in the relevant congressional district.
Furthermore, the signatories themselves listed their resident address next

to their signatures, and the form each signatory signed listed the county
and congressional district for the signatures affixed thereon. Accordingly,
the Green Party met its burden of demonstrating substantial compliance
with the statutory requirements for circulator affidavits on minor party
petitions for ballot access.
The majority mistakenly extends the requirements for a
circulator affidavit to include those provided by a regulation that was
adopted to assist the Secretary of State in verifying signatures. It is only in
the regulation, NAC 293.182, not the statute, that one finds the
requirement that a circulator attest that the circulator believes each
signatory is "a registered voter in the county of his or her residence." It is
an error to say that the requirement added by regulation is essential "to
ensur[ing] that every reasonable objective of the statute is met." Williams
v. Clark Cnty. Dist. AtCy, 118 Nev. 473, 480, 50 P.3d 536, 541 (2002) (stating
that substantial compliance is compliance with matters essential to the
statute's objective). There is no evidence that this additional attestation
requirement added by regulation was meant to prevent fraud. In fact, it
appears that it was merely meant to assist the Secretary of State and county
clerk's offices in verifying the signatures through the verification process.
Furthermore, in a case involving federal races, a voter's county of residence
does not determine congressional district and so is not essential.
Additionally, the district court properly concluded that the
independent verification of signatures gathered by the Green Party
demonstrated substantial compliance. As this court noted in Las Vegas
Convention and Visitors Authority v. Miller (LVCVA), 124 Nev. 669, 687,

SUPREME COURT
OF
NEVADA

14
(01 I917A
 191 P.3d 1138, 1150 (2008), if sufficient signatures are verified, the purpose
of the provision requiring a circulator provide attestations regarding the
signatures gathered could be satisfied under a substantial compliance
standard. Such verification did not occur in LVCVA because the Secretary
of State there rejected the affidavits. But here, the Secretary of State

accepted the affidavits and proceeded with its statistical verification of the
signatures.
In a significantly similar case to the one before us now, the
Supreme Court of Ohio concluded that verification of signatures renders a
circulator's attestation nonessential. State ex rel. Buchanan v. Stillrnan,
231 N.E.2d 61, 62-63 (Ohio 1967). That matter involved an almost identical
missing attestation in a circulator affidavit that required the circulator to
attest that to the best of the circulator's knowledge the signer was qualified
to sign the petition. Id. at 62. The court concluded that the attestation
served the purpose of protecting the board of elections when the signatures
were not verified, but that if the signatures were verified, the attestation
"no longer serve[d] any useful purpose." Id. Similarly, here the missing
attestation from the circulator affidavit protects the Secretary of State from
placing a minor political party on the ballot that did not gather enough
signatures in each congressional district. But by validating the signatures,
the Secretary of State has chosen not to invoke the protection that
attestation provides. Therefore, the necessity for the missing attestation
becornes moot and, in line with what the Stillrnan court noted, it should not
be allowed "to provide a weapon for those who desired to attack the
petitions." Id. Accordingly, I conclude that the verification of the signatures
gathered by the Green Party rendered noncompliance with any

requirements created in NAC 293.182 inconsequential.

SUPREME COURT
OF
NEVADA
15
OM 1947A atirp,
 Violation of the Green Party's substantive due process rights
I further conclude that invalidation of the signatures gathered
by the Green Party under the circumstances presented violates the Green
Party's substantive due process rights. The majority correctly notes that
minor political parties have a constitutional right to seek ballot access for
their candidates. Norman v. Reed, 502 U.S. 279, 288 (1992). "Substantive
due process protects certain individual liberties against arbitrary
government deprivation regardless of the fairness of the state's procedure."
Eggleston v. Stuart, 137 Nev. 506, 510, 495 P.3d 482, 489 (2021). It would
be fundamentally unfair to invalidate the Green Party's gathered
signatures in light of the Secretary of State's arbitrary and incorrect
direction to the Green Party to use the wrong form.
When the Green Party decided to circulate a petition for ballot
access, it sent its petition to the Secretary of State's office. The Green
Party's original petition included the proper circulator affidavit provided in
NAC 293.182. An employee with the Secretary of State's office replied by
email to the Green Party stating, in relevant part, "It appears the petition
documents you may have are an older version. . . . Please use the documents
attached to begin collecting signatures." The documents the employee
attached contained the wrong circulator affidavit, specifically the one used
for circulating initiative or referendum petitions, instead of the correct
circulator affidavit for minor party petitions for ballot access. The Green
Party was not merely provided an incorrect form, rather, they were
affirmatively told by the Secretary of State's office that the correct form the
Green Party originally provided in their petition was outdated and they
were affirmatively directed by the Secretary of State's office to use the
specific form provided by that office in moving forward with their petition.

SUPREME COURT
OF
NEVADA

16
(C)) I,147A
 The Green Party then utilized the documents sent by the Secretary of
State's employee, as directed, and circulated a petition with a circulator
affidavit that does not include the language provided in NAC 293.182.
This case is distinguishable from LVCVA. In that case, the
Secretary of State's Guide had the incorrect information. 124 Nev. at 676,
191 P.3d at 1143. Here, the Secretary of State took an affirmative action
by providing the Green Party with a form petition and directing the Green
Party to use that form petition. It would be unreasonable to expect a minor
party to thereafter double check the form petition provided by the Secretary
of State, who is supposed to be the primary authority on elections in
Nevada. The Green Party did not need to independently review NRS
293.172 and NAC 293.182 to ensure that the Secretary of State's
information was correct. Even if the Green Party had determined that the
form petition provided to it by the Secretary of State's office was incorrect,
the Green Party would be placed in a legal limbo because it could not comply
with the legal requirements for a circulator affidavit and the direction from
the Secretary of State's office.
I disagree with the majority's characterization of the Secretary
of State's error as an "unfortunate mistake." It is working a tremendous
injustice and invalidating the signatures gathered by the Green Party on
the form petition provided by the Secretary of State's office would be
egregious and at the expense of the Green Party's constitutional rights. See
Eggleston, 137 Nev. at 510. 495 P.3d at 489 (observing that a violation of an
individual's substantive due process rights "is reserved for the most
egregious governmental abuses against liberty or property rights" (internal
quotation marks omitted)); LVCVA, 124 Nev. at 695-96, 191 P.3d at 1155
("Generally, substantive due process analysis applies when state action is

SUPREME COURT
OF
NEVADA
17
(0) 1947A
 alleged to unreasonably restrict an individual's constitutional rights."
(internal quotation marks omitted)). It also shocks the conscience, offends
judicial notions of fairness, and contributes to a distrust in the election
process in Nevada. See Eggleston, 137 Nev. at 510, 495 P.3d at 489
(explaining that a substantive due process violation occurs when a
governmental abuse "shock[s] the conscience or otherwise offend[s] judicial
notions of fairness" (internal quotation marks omitted)). Thus, the

invalidation of the Green Party's signatures gathered under these

circumstances violates the Green Party's substantive due process rights.
Accordingly, I would affirm the district court's order denying
the Democratic Party's request for declaratory and injunctive relief.

I concur:

Pickering

cc: Hon. Kristin Luis, District Judge

Pisanelli Bice, PLLC
Attorney General/Carson City
Benson Law LLC
Ashcraft & Barr LLP
Carson City Clerk

SUPREME COURT
OF
NEVADA
18