Sigal Chattah is wasting somebody’s time — but whose?

(Between the submission and publication of this column, Sigal Chattah filed an amended complaint addressing some of the issues raised in this column. It is the opinion of the author of this column that the critiques raised against her initial filing still largely hold against her amended complaint, especially regarding the deficiencies in her reasoning regarding the alleged constitutional violations and the role of the explicit exemptions for election observation activities written into SB406. The author holds that her willingness to submit what this author deems a poorly proofread and poorly thought out filing is worthy of note. However, this column has been edited to acknowledge it is critiquing the original complaint, not the amended complaint.)

Hypothetically, imagine for a moment that I had no clue who or what an election official was. Furthermore, imagine for a moment that I didn’t know what intimidation was, or what it meant to interfere with the performance of the duties of any elections official relating to an election, or what it meant to retaliate against any elections official for performing duties relating to an election.

Now imagine that, despite my alarming level of ignorance of social mores and the English language, I could find myself prosecuted with a category E felony if I intimidate an election official or otherwise interfere with their duties. Why, what if I said someone was a jerk online, it turned out they were an election official, and they took such significant offense, they were unable to show up to work on Election Day? Would I be prosecuted and spend the next one to four years in state prison? Who can say?

Sure, you may think to yourself, if my political allies start prosecuting election workers or demanding the names and party affiliations of election officials, I know exactly who they are — but if my political opponents attempt to protect election workers, well, who can say who they might be protecting? Besides, unless legislators are willing to furnish an exhaustive list of every conceivable form of possible offense they’re protecting election officials from, it’s impossible to tell whether a specific activity done in the general direction of an election official (like, say, threatening to murder them) is illegal or not — unless, of course, my political allies are the ones drafting 35 new penalties against election officials in other states in 2020. In which case, well, kiss my Introduction to Philosophy-grade epistemic self-doubt goodbye.

In short, I’m not touching my brother. The stick, which I just happen to have in my hand, is touching my brother. Ergo, you should punish my brother for tattling. Besides, you can’t prove he’s really my brother anyway. Nyah.

A couple of weeks ago, Nevada Republican National Committeewoman Sigal Chattah filed a lawsuit built loosely on the logic above with the goal of overturning SB406, a bill designed to protect election workers from the increasingly common threats and harassment they’re subjected to, both at work and at home. The bill was championed by Secretary of State Cisco Aguilar, passed unanimously by both houses of the Legislature and signed by the governor toward the end of the last regular legislative session in May.

Unfortunately for her and her clients, large portions of her initial filing were based on a failure to read beyond the second page of the bill she and her plaintiffs seek to overturn.

For example, her filing alleged SB406 did not define what an “election official” was, nor was the term defined in NRS 293. This is technically true, but only because the bill defines and uses the term “elections official” (note the use of the plural “elections” instead of the singular “election”) instead:

The term “elections officials,” as you can read for yourself, is defined toward the end of page 3 of SB406 as employees in the elections divisions of a city, county or the Secretary of State’s office who are charged with duties relating to an election. Additionally, the elected officials and deputies responsible for supervising those employees are included, as are the election board and counting board officers.

Additionally, her filing alleged that an election observer or volunteer poll observer, under NRS 293.274, “may potentially not only be a victim of SB406 but also be subject to a prosecution under SB406, for a Class E [sic] felony, if an election observer vocally objects to any conduct which may be subjectively viewed as intimidation or undue influence, by a purported victim under SB406.”

Ignoring for a moment that, in Nevada, felonies are categorized, not classed — though this is nitpicky, Chattah is a lawyer in good standing with the state bar and should be presumably familiar with the terms used to describe felonies in the state she practices in — this would be a problem if, once again, the authors of SB406 stopped at the end of the second page. At the start of the third page, however, is a section explicitly stating that the section criminalizing harassment of election officials does not limit observing the conduct of voting at a polling place pursuant to NRS 293.274:

Her filing next alleged that SB406 fails to define what intimidation or undue influence with the intent to interfere with an election is. This argument, however, proves too much. Intimidating or applying undue influence against voters is already illegal per NRS 293.710 — a statute she alleged she read at the beginning of her filing (I have my doubts — this witness is clearly unreliable). In fact, the bill copies the longstanding protections against harassing voters nearly word for word and pastes them against a new protected class — the aforementioned elections officials:

The filing then asserted that it’s “absolutely absurd” for the protections in SB406 — protections that, again, already largely apply to voters in NRS 293.710 — to apply to elections workers when they’re not at work. Apparently, once elections officials leave polling places or election offices, her plaintiffs sincerely believe it should be legal to use or threaten to use any force, intimidation, coercion, violence, restraint or undue influence they wish against them.

Which yes, I’m sure they do, but her filing does not explain or justify why their wishes should be honored by any tolerably competent court of law, much less the public at large.

Finally, her filing asserted SB406 violates her clients’ First Amendment and 14th Amendment rights under the U.S. Constitution, as well as their rights under Article 1 of the Nevada Constitution. All of these purported violations are based around the idea that SB406 somehow meaningfully censors the speech of the plaintiffs — which, again, is likely true if their speech threatens elections officers. 

Outside of that narrow prohibition, however, SB406 doesn’t restrict anyone from speaking about elections, nor does it prohibit anyone from expressing any specific viewpoints regarding them — meaning, it doesn’t discriminate against content or viewpoint of speech. Even if it did, the state government has a compelling interest in protecting voters and election officials from threats and harassment so they can successfully conduct and participate in free and fair elections. Consequently, SB406 would likely survive strict scrutiny since striking it down would likely lead to striking down the protections included in NRS 293.710 as well.

None of this, it should be noted, touches whether her plaintiffs even have standing to file a lawsuit about SB406. Usually, courts require an actual harm to occur to someone before they’re allowed to come to court to ask for redress. Since none of the plaintiffs have been prosecuted under SB406 — since, to date, likely nobody’s been prosecuted under SB406 since the law is less than two months old and it’s not an election year — they have suffered no harm against them and are consequently extremely unlikely to be entitled to a legal remedy.

Coming from an anonymous internet commentator, the sort of specious and slapdash legal analysis employed by Chattah’s filing would be understandable, or, at the very least, somewhat expected. Coming from a State Bar of Nevada-admitted attorney, on the other hand, this sort of specious and slapdash legal analysis is disappointing. She obviously failed to read the bill she claims her clients seek to overturn and she failed to proofread or edit her filing of obvious technical errors before submitting it to a court of law.

Perhaps she’s ripping her clients off by putting the barest amount of effort into her work on their behalf. Perhaps she’s taking advantage of the court’s time by filing an obviously defective filing, knowing full well it’ll be rejected for its numerous technical failings, so she can grandstand on the issue after wasting the court’s time. 

Perhaps she’s doing a rather lot of both.

This column was edited as of Sunday, July 9, 2023 at 1:35 p.m.

David Colborne ran for public office twice. He is now an IT manager, the father of two sons, and a weekly opinion columnist for The Nevada Independent. You can follow him on Mastodon @[email protected], on Bluesky @davidcolborne.bsky.social, on Twitter @DavidColborne or email him at [email protected].