Briefing Completed in Busefink ACORN Case in Nevada

You can read the reply brief here.  Here is an interesting snippet from the reply brief:

1. The State now says that the conduct of Appellant’s co-defendant,
charged under the same law, is not a crime

The best evidence of the slippery applications and interpretations of N.R.S. 293.805(a) comes from the State’s own Answering Brief. The State avers that “nothing in the text of N.R.S. 293.805 prevents organizers from holding hourly employees to production-based expectations or terminating employees for failing to meet those expectations.” Ans. Brief, 4. Yet this is exactly the conduct which the State charged Appellant’s co-defendant, the Association of Community Organizations for Reform Now. Here is Count One of the original criminal complaint in this matter:

That the Defendant, Association of Community Organizations for Reform Now
(ACORN) did unlawfully provide compensation for registering voters that is
based upon the total number of voters a person registers to wit: That from August
to September 2008 the defendant employed Eartha Jackson to register voters
in Clark County, Nevada and conditioned her pay upon submitting twenty
(20) registration cards per shift. In addition, Defendant, through ACORN Las
Vegas field director Christopher Howell Edwards, paid Eartha Jackson a bonus of
five dollars ($5.00) for submitting twenty-one (21) or more voter registration
cards per shift.
(emphasis added) J.App. 2. This same language and allegation is repeated in Counts Four, Seven, Ten, Thirteen, Sixteen, Nineteen, Twenty-two, Twenty-five, Twenty-Eight, Thirty-one, Thirty-four, and Thirty-seven.
The primary allegation in all thirteen counts against Appellant’s co-defendant, therefore, was that it conditioned employment upon certain performance expectations. This was the very basis for the criminal complaint. Now, however, the State concedes that conditioning employment on production-based expectations is perfectly lawful, that “nothing in the text” prevents such a payment system. Apparently, not only is there danger that interpretation and application of N.R.S. 293.805 may differ from case to case, it actually differs within a single case. Having done with ACORN for the purposes of its criminal case—it pled guilty earlier this year—the State now says the conduct with which it charged Appellant’s co-defendant under its then-reading of the law is not even a crime. What is worse, it now enlists that contradiction to support an argument against Appellant, that the burden of the statute is de minimis, that the law leaves open sufficient options and does not reduce the pool of potential canvassers, which it clearly does. If this is not evidence of an impermissibly vague statute, whose application is uncertain and whose guidance fails to prevent arbitrary and discriminatory enforcement, then such does not exist.

 

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