FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL COUNCIL OF LA RAZA;

LAS VEGAS BRANCH OF THE

NAACP, Branch 1111; RENOSPARKS BRANCH OF THE NAACP,

Branch 1112,

Plaintiffs-Appellants,

v.

BARBARA K. CEGAVSKE, in her

official capacity as Secretary of State

of the State of Nevada; RICHARD

WHITLEY, in his official capacity as

Director of the Department of Health

and Human Services of the State of

Nevada,

Defendants-Appellees.

No. 13-15077

D.C. No.

3:12-cv-00316-

RCJ-VPC

OPINION

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, District Judge, Presiding

Argued and Submitted

March 12, 2015—San Francisco, California

Filed September 3, 2015
2 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE

Before: William A. Fletcher and Morgan Christen, Circuit

Judges, and Roslyn O. Silver,* Senior District Judge.

Opinion by Judge W. Fletcher

SUMMARY**

Civil Rights

The panel reversed the district court’s dismissal of a

complaint brought by the National Council of La Raza and

the Las Vegas and Reno-Sparks chapters of the NAACP

alleging that Nevada’s Secretary of State and Director of the

Department of Health and Human Services violated, and

continue to violate, Section 7 of the National Voter

Registration Act of 1993.

Section 7 requires states to distribute voter registration

materials and to make assistance available to people who

visit, and make certain requests of, public assistance offices. 

Plaintiffs alleged that Nevada’s failure to comply with

Section 7 of the Act caused them to expend additional

resources, and that “but for” the State’s failure they would

have spent these resources to accomplish other aspects of

their organizational missions, such as voter education and

registering voters not covered by the Act. The district court

* The Honorable Roslyn O. Silver, Senior District Judge for the U.S.

District Court for the District of Arizona, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 3

dismissed the complaint for lack of Article III and statutory

standing.

The panel held that plaintiffs satisfied the standing

requirement of Article III by plausibly alleging they suffered

injury in fact fairly traceable to the State’s noncompliance

with Section 7 of the Act. The panel also held that plaintiffs

satisfied statutory standing in two ways. First, they notified

the State that violations were occurring 120 days before an

election, thus authorizing them to file suit after waiting 20

days from the date of their notification. Second, they

plausibly alleged that the State was violating Section 7 within

30 days of a federal election, thus permitting them to file suit

without first notifying the State (even though plaintiffs in fact

had done so). The panel remanded the matter for further

proceedings consistent with its opinion and instructed the

Chief Judge of the District of Nevada to assign the case to a

different district judge.

COUNSEL

Sarah E. Brannon, Project Vote, Washington, D.C.; Neil A.

Steiner (argued), Dechert LLP, New York, New York; Lisa

Joy Danetz, Dçmos: A Network for Ideas and Action, New

York, New York; Robert Kengle and Jon M. Greenbaum,

Lawyers’ Committee for Civil Rights Under Law,

Washington, D.C.; W. Chris Wicker, Woodburn and Wedge,

Reno, Nevada, for Plaintiffs-Appellants.

Catherine Cortez Masto, Attorney General, and K. Kevin

Benson (argued), Senior Deputy Attorney General, Nevada

Office of the Attorney General, Carson City, Nevada,

for Defendants-Appellees.
4 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE

OPINION

W. FLETCHER, Circuit Judge:

The plaintiffs in this case are three civil rights

organizations, National Council of La Raza (“NCLR”) and

the Las Vegas and Reno-Sparks chapters of the NAACP

(collectively, “Plaintiffs”). They appeal the dismissal with

prejudice of their complaint, which alleges that Nevada’s

Secretary of State and Director of the Department of Health

and Human Services (collectively, “Nevada” or “the State”)

have violated, and continue to violate, Section 7 of the

National Voter Registration Act of 1993 (“NVRA”). Section

7 requires states to distribute voter registration materials and

to make assistance available to people who visit, and make

certain requests of, public assistance offices. We must decide

whether Plaintiffs have Article III and statutory standing to

bring suit. We hold that they do and reverse the district

court’s dismissal of their complaint.

I. Facts and Procedural Background

A. The NVRA

Section 7 of the NVRA is part of a comprehensive statute

designed to facilitate voter registration. The section seeks to

increase registration of “the poor and persons with disabilities

who do not have driver’s licenses and will not come into

contact with the other princip[al] place to register under this

Act[, motor vehicle agencies].” H.R. Rep. No. 103-66, at 19

(1993), reprinted in 1993 U.S.C.C.A.N. 140, 144. To

accomplish this goal, Section 7 requires states to designate

public assistance offices as voter registration agencies. 
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 5

52 U.S.C. § 20506(a)(2)(A).1 Voter registration agencies are

required to “distribute” voter registration application forms

with each application for assistance. They are also required

to “ma[k]e available” assistance in filling out voter

registration application forms to any person who applies for

public assistance or seeks recertification, renewal, or change

of address, unless that person declines in writing to register

to vote. Id. § 20506(a)(4)(A)(i)–(iii),(a)(6). Nevada law

implementing the NVRA further obligates public assistance

offices to post in conspicuous places signs informing their

clients that they can register to vote and instructing them how

to do so. See Nev. Rev. Stat. § 293.504; Nev. Admin. Code

§ 293.410.

The NVRA creates a private right of action for “[a]

person who is aggrieved by a violation of [the NVRA].” 

52 U.S.C. § 20510(b); see also 138 Cong. Rec. 10,736 (1992)

(statement of Sen. Wendell Ford) (explaining that the

language providing for a private cause of action substituted

“person” for “individual” to “permit organizations as well as

individuals, and the Attorney General to bring actions under

the act”). The statute includes a notice provision that requires

an aggrieved person, in most circumstances, to notify state

officials of possible violations of the statute before filing suit. 

See 52 U.S.C. § 20510(b)(1). Whether the aggrieved person

is required to give notice and how long the person must wait

to file suit after giving notice depends on the timing of the

next federal election. When the violation upon which a suit

is based occurs a substantial time before the next federal

election, the aggrieved person must notify the state of the

alleged violation and must then wait 90 days before filing

1 The NVRA was codified at the time of the complaint at 42 U.S.C.

§ 1973gg. It is now codified at 52 U.S.C. §§ 20506–20511.
6 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE

suit. Id. § 20510(b)(1)–(2). However, “if the violation

occurred within 120 days” of a federal election, the aggrieved

person must wait only 20 days after notifying the state before

bringing suit. Id. § 20510(b)(2). “If the violation occurred

within 30 days” of a federal election, the aggrieved person

does not need to give any notice before bringing suit. Id.

§ 20510(b)(3).

B. The Notice Letter

On May 10, 2012—thirty-three days before a federal

primary election—Plaintiffs sent a letter to Nevada’s

Secretary of State alerting him that, in the view of Plaintiffs,

the State was violating the public assistance provisions of

Section 7. The letter stated that “Nevada is not in compliance

with Section 7” and “is systematically failing to provide the

voter registration services mandated by the NVRA at its

public assistance offices.”

The letter provided substantial evidence in support of its

allegations. First, it cited data from the U.S. Election

Assistance Commission. The data showed that the number of

voter registration applications submitted to Nevada public

assistance offices “decreased precipitously”—by 95% from

2001–2002’s high point to 2009–2010’s low point—despite

a four-fold increase in the number of food stamp applications

during this period. Second, the letter cited U.S. Census

Bureau data from 2010, which showed that only 47.6% of

low-income Nevadans were registered to vote, compared to

72.4% of high-income Nevadans. Third, the letter presented

the results of field investigations Plaintiffs conducted in

December 2011, approximately five months before they sent

the letter. Plaintiffs’ investigators visited Nevada public

assistance offices and surveyed the clients and clerks of those
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 7

offices. They discovered that clerks in seven of nine offices

theyvisited provided voter registration application forms only

to people who affirmatively requested them. Office staff

indicated that this was “standard procedure.” Of the clients

surveyed, only one out of the five who affirmatively

requested a voter registration application form received one. 

Two of the nine offices did not have voter registration

application forms at all. Only nine out of the 51 clients

surveyed received voter registration application forms with

their benefits applications or other forms. Only two of nine

sites displayed the notifications required by state law.

Based on this evidence, the letter concluded that Nevada

is not complying with the NVRA and informed the Secretary

of State that unless the State took corrective action, Plaintiffs

would “have no alternative but to initiate litigation at the

conclusion of the statutory 20-day waiting period.”

C. The Complaint

On June 11, 2012—thirty-two days after Plaintiffs sent

their notice letter and one day before the impending federal

primary election—Plaintiffs filed a complaint in district court

seeking declaratory and injunctive relief. The complaint

alleges that “Defendants have violated, and unless enjoined

will continue to violate, Section 7 of the NVRA.” It alleges

further that “widespread ongoing noncompliance” with, and

“systemic violations” of, Section 7 are “caused by flawed

practices and policies, insufficient oversight and inadequate

enforcement.” The complaint alleges specifically that “[t]he

violations of the NVRA described in the notice letter have not

been remedied.” In support of its allegations, the complaint

repeats the evidence previously laid out in the notice letter.
8 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE

The complaint describes plaintiff NCLR as “the largest

national Latino civil rights and advocacy organization in the

United States.” According to the complaint,

NCLR regularly has conducted and continues

to conduct voter registration drives in the

State of Nevada . . . . NCLR conducts voter

registration activities in two ways. The first is

through attending community events such as

music festivals, sporting events, cultural fairs

and national holidays and registering people

as they congregate in crowds. NCLR also

registers people to vote going door-to-door

. . . .

The complaint alleges that Nevada’s violation of Section 7

has caused NCLR to expend additional resources in

performing its voter registration mission: “Due to defendants’

ongoing violations of the NVRA, NCLR has expended

additional resources, including staff and volunteer time, on

efforts to assist individuals with voter registration (including

updating prior voter registration) who should have been

offered voter registration through Nevada’s public assistance

offices.”

The complaint describes plaintiffs Las Vegas NAACP

and Reno-Sparks NAACP as organizations that “seek[] to

achieve equality of rights in and around” Las Vegas and

Reno-Sparks. According to the complaint, these plaintiffs

“especially encourage[] participation in federal and state

elections by traditionally underrepresented groups.” Both of

these plaintiffs allege that Nevada’s violation of Section 7 has

caused them to expend additional resources in performing
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 9

their voter registration missions. The complaint alleges as to

plaintiff Las Vegas NAACP,

If public assistance offices throughout Nevada

were complying with the requirements of the

NVRA, the Las Vegas NAACP would expend

fewer resources on voter registration drives in

communities where DHHS [Nevada

Department of Health & Human Services]

clients should be offered voter registration

opportunities at DHHS offices. But for

defendants’ violations of Section 7 of the

NVRA, the Las Vegas NAACP would be able

to allocate substantial resources to other

activities central to its mission.

The complaint alleges the same thing as to plaintiff RenoSparks NAACP.

In addition, the complaint alleges thatindividual members

of plaintiffs Las Vegas and Reno-Sparks NAACP have been

and will be harmed by Nevada’s failure to comply with

Section 7 because their members “have not been and will not

be offered the opportunity to register to vote through DHHS

offices.” Such members include those “who are not

registered to vote and members who are registered to vote but

have moved or will move and thus have an interest in

promptly receiving information and assistance regarding

changing their voter registration to match their new address.” 

The complaint does not identify the members by name.
10 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE

D. Answer and Motion to Dismiss

The State filed an answer and a motion to dismiss on June

3, 2012. In its answer, the State denied that the district court

had subject matter jurisdiction. In its motion to dismiss, the

State contended that Plaintiffs did not comply with the notice

provision of Section 7 because the alleged violations

described in the complaint occurred in December 2011, when

Plaintiffs conducted their field investigations. The State

contended that because the violations were discovered more

than 120 days before the federal primary election in June

2012, Plaintiffs were obligated to give the State 90 instead of

20 days to respond to their letter before filing suit.

E. Preliminary Injunction and Plaintiffs’ Opposition to

Motion to Dismiss

Plaintiffs moved for a preliminary injunction on July 6,

2012, and submitted a memorandum opposing the State’s

motion to dismiss two weeks later. Plaintiffs attached both to

their motion and to their memorandum declarations from

individuals who are eligible to vote, who visited public

assistance offices on June 19 and 20, 2012 (after Plaintiffs

filed their complaint), and who were not given the

opportunity to register to vote. Plaintiffs also attached to the

memorandum policy manuals from the Nevada Department

of Health and Human Services instructing public assistance

clerks to interpret an applicant’s failure to fill out the voter

registration section of a benefits application as a declination

to register to vote. Plaintiffs asked the district court to grant

leave to amend their complaint to add allegations and

supporting declarations of more recent violations if the court

believed the complaint warranted dismissal without them.
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 11

The district court scheduled a hearing on the State’s

motion to dismiss and Plaintiffs’ motion for a preliminary

injunction for October 9, 2012. This date was three days after

the deadline to register to vote in the November 2012 general

election.

F. Pro Hac Vice Applications

In August 2012, eight attorneys representingPlaintiffs pro

bono filed applications with the district court to practice pro

hac vice in Nevada. The State did not oppose the

applications. Despite the State’s failure to oppose, the district

judge scheduled a hearing on the applications. At the

hearing, the district judge indicated that he had not read the

complaint and that he intended to denysix of the applications. 

He remarked that he was “not obligated to admit pro hac vice

a lot of New York lawyers who in essence are representing

their own interests, their own law firms’ interests, rather than

even the plaintiff that they represent.” He observed that Mr.

Wicker, the Nevada lawyer who was representing Plaintiffs,

was “very competent.” Mr. Wicker said that he appreciated

the compliment, but responded,

I have never pursued one of these Voter

Registration Act cases, and I think that the

public interest groups . . . have pooled their

resources to pursue these cases nationwide.

. . . [I]t is a specialized area where I think the

help of these public interest agencies and

national counsel, Mr. Steiner . . . , are very

important to represent the rights of the

plaintiffs in this matter.
12 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE

The district judge responded that lawyers not admitted pro

hac vice could help write briefs. Mr. Steiner expressed

concern that if an associate from his office who had not been

admitted pro hac vice took a deposition that would “put us at

risk of violating Nevada unauthorized practice rules.” The

judge responded, “That’s true.”

At the end of the hearing the district judge announced his

intention to grant petitions for admission pro hac vice for

only two attorneys—one for NCLR and one for the two

NAACP chapters—and gave the Plaintiffs a week to decide

among themselves which attorneys to put forward. A week

later, Plaintiffs moved for reconsideration of the eight

applications or, alternatively, for approval of two attorneys

chosen by Plaintiffs. So far as the record shows, the district

court did not rule on this motion.

G. Dismissal with Prejudice

On August 29, 2012, the parties filed stipulations in the

district court under which the State withdrew its motion to

dismiss and Plaintiffs withdrew their motion for a preliminary

injunction. The district judge then vacated the scheduled

hearing on the motions. In December 2012, without referring

to the parties’ stipulations, the district judge granted with

prejudice Nevada’s withdrawn motion to dismiss and denied

as moot Plaintiffs’ withdrawn motion for a preliminary

injunction. The judge gave two reasons for the dismissal.

First, the district judge held sua sponte that Plaintiffs

lacked standing under Article III. He concluded that

Plaintiffs lacked organizational standing because they had not

shown that they suffered an injury fairly traceable to the

State. Second, the district judge held that Plaintiffs lacked
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 13

statutory standing because they complained of violations that

they knew about in December 2011, when they discovered

them in the course of their field investigations. He concluded

that since these violations occurred more than 120 days

before the then-pending federal primary election in June,

Plaintiffs were required to give the State 90 days to respond

before filing suit. The district judge rejected Plaintiffs’

allegation that the violations—which were alleged to be

systematic and ongoing—were still occurring on May 10,

when Plaintiffs sent their notice letter stating that the State

was then violating the NVRA, as well as on June 11, when

Plaintiffs filed their complaint alleging the same thing. 

According to the district judge, Plaintiffs’ decision to send

the notice letter within 120 days of a federal election was due

to an “ulterior motive.” It was a “tactic[] of delaying” that

“violates the purpose of the NVRA’s notice provision; which

is to provide notice of violations long before election day so

the state can investigate and cure them without the delay and

expense of litigation.”

Despite holding that Plaintiffs lacked Article III and

statutory standing, the district judge went on, in dictum, to

discuss “for the record” the merits of Plaintiffs’ motion for a

preliminary injunction. The judge concluded that, assuming

standing, Plaintiffs had not plausibly alleged that the State

was engaged in ongoing violations of Section 7 at the time

they filed their complaint.

Plaintiffs timely appealed the dismissal.

II. Standard of Review

We review de novo a district judge’s dismissal for lack of

Article III and statutory standing, presuming that all facts
14 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE

alleged in the complaint are true. Vaughn v. Bay Envtl.

Mgmt., Inc., 567 F.3d 1021, 1024 (9th Cir. 2009).

III. Discussion

A. Article III Standing

We disagree with the district court’s conclusion that

Plaintiffs lack Article III standing. The standing

requirements of Article III are familiar. A plaintiff must

show that (1) he or she has suffered a “concrete and

particularized” injury to a cognizable interest, (2) which is

“fairly traceable to the challenged action of the defendant”

and (3) which likely can be redressed by a favorable decision. 

Bennett v. Spear, 520 U.S. 154, 167 (1997); see also Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). In

deciding whether a plaintiff has made this showing, we

“accept as true all material allegations of the complaint” and

“construe the complaint in favor of the complaining party.” 

Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011)

(quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)).

All three plaintiffs allege that Nevada’s failure to comply

with Section 7 of the NVRA has caused them to expend

additional resources, and that “but for” the State’s failure they

would have spent these resources to accomplish other aspects

of their organizational missions, such as voter education and

registering voters not covered by the NVRA. The district

judge concluded that this was not a sufficient allegation of

injury in fact and causation. In his view, Plaintiffs failed to

allege that Nevada’s failure to comply with Section 7 had

changed their behavior in any way.
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 15

As to plaintiff NCLR, the district judge noted that

“Plaintiff NCLR claims it has expended additional resources,

including staff and volunteer time, on efforts to assist

individuals with voter registration.” Despite his recognition

that plaintiff NCLR alleged in the complaint that it had

expended additional resources, the district judge concluded

that it had not changed its behavior. He wrote,

Because registeringHispanicAmerican voters

is an admitted tenet of NCLR, and it regularly

has conducted voterregistration drives, NCLR

has failed [to] show any “concrete and

particularized” facts that they have conducted

any voter registration drives other than what

they would have done had Nevada been in

compliance with the NVRA.

As to plaintiffs Las Vegas and Reno-Sparks NAACP, the

district judge noted that, like plaintiff NCLR, they alleged

that they expended extra resources registering voters as a

result of Nevada’s alleged failure to comply with Section 7. 

He nevertheless concluded that the two NCAAP chapters had

failed to allege that they had changed their behavior. He

wrote,

It is plausible that [the] NAACP branches

have suffered harm of having to focus their

drives in low-income communities if they

would have otherwise focused elsewhere,

which they claim. However, they state that

low-income communities have been the focus

of their “numerous” drives during the past

three years. It appears, based on [the]

NAACPs’ own declarations, they were doing
16 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE

business as usual; whether Nevada was in

compliance or not.

The district judge’s conclusion that Plaintiffs lack Article

III standing because they did not change their behavior is

based on a misreading of the complaint. The complaint,

portions of which we have quoted above, clearly alleges that

Plaintiffs changed their behavior as a result of Nevada’s

alleged violation of Section 7. The complaint specifically

alleges that Plaintiffs expended additional resources that they

would not otherwise have expended, and in ways that they

would not have expended them. For example, the complaint

alleges that plaintiff NCLR “expended additional resources

. . . on efforts to assist individuals with voter registration . . .

who should have been offered voter registration through

Nevada’s public assistance offices.” It further alleges that

plaintiffs Las Vegas and Reno NAACP would spend “fewer

resources on voter registration drives in communities where

DHHS clients should be offered voter registration

opportunities at DHHS offices. But for defendants’

violations of Section 7,” Plaintiffs “would be able to allocate

substantial resources to other activities central to [their]

mission[s].”

The Supreme Court has made clear that injuries of the sort

that Plaintiffs allege are concrete and particular for purposes

of Article III. See Havens Realty Corp. v. Coleman, 455 U.S.

363, 379 (1982) (“Such concrete and demonstrable injury to

the organization’s activities—with the consequent drain on

the organization’s resources—constitutes far more than

simply a setback to the organization’s abstract social interests

. . . .”). The Court has also made clear that a diversion-ofresources injury is sufficient to establish organizational

standing at the pleading stage, even when it is “broadly
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 17

alleged.” Id. at 379 (“If, as broadly alleged, [defendants’]

steering practices have perceptibly impaired [plaintiff

organization’s] ability to provide counseling and referral

services for low- and moderate-income homeseekers, there

can be no question that the organization has suffered injury in

fact.”); see also Lujan, 504 U.S. at 561 (“At the pleading

stage, general factual allegations of injury resulting from the

defendant’s conduct may suffice, for on a motion to dismiss

we presum[e] that general allegations embrace those specific

facts that are necessary to support the claim.” (internal

quotation marks omitted)).

Resources Plaintiffs put toward registering someone who

would likely have been registered by the State, had it

complied with the NVRA, are resources they would have

spent on some other aspect of their organizational

purpose—such as registering voters the NVRA’s provisions

do not reach, increasing their voter education efforts, or any

other activity that advances their goals. Contrary to the

district judge’s view, Plaintiffs have not alleged that they are

simply going about their “business as usual,” unaffected by

the State’s conduct. See Fair Hous. Council of San Fernando

Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir.

2012) (holding that plaintiff organizations have standing to

sue to stop a roommate-matchingwebsite from discriminating

because they undertook a campaign against discriminatory

roommate advertising, even though their ordinary business

includes investigating and raising awareness about housing

discrimination). We have no difficulty concluding that

Plaintiffs have adequately alleged that the injury they suffer

is attributable to the State. See, e.g., Georgia State

Conference of NAACP v. Kemp, 841 F. Supp. 2d 1320, 1336

(N.D. Ga. 2012) (finding that plaintiff’s allegations that it

expended resources, which it would have used on other
18 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE

projects, to register people who should have been registered

by the state “plainly satisfy the injury prong of the Article III

test for standing”); Nat’l Coal. for Students with Disabilities

Educ. & Legal Def. Fund v. Scales, 150 F. Supp. 2d 845, 850

(D. Md. 2001) (finding that “the allegations that the

[defendant]’s noncompliance frustrates these goals and

requires the organization to expend resources in facilitating

the registration of disabled persons that they otherwise would

spend in other ways is sufficient to show an actual or

threatened injury in fact that is fairly traceable to the alleged

illegal action and is likely to be redressed by a favorable court

decision ordering injunctive relief”).

The complaint also alleges that members of the two

NAACP chapters suffered injury as a result of Nevada’s

failure to comply with Section 7. Citing Summers v. Earth

Island Institute, 555 U.S. 488 (2009), the district judge held

that the chapters’ members “must be specifically identified”

in order for the chapters to satisfy Article III standing. We

are not convinced that Summers, an environmental case

brought under the National Environmental Policy Act, stands

for the proposition that an injured member of an organization

must always be specifically identified in order to establish

Article IIIstanding for the organization. The Summers Court

refused to find standing based only on speculation that

unidentified members would be injured by a proposed action

of the National Forest Service. Id. at 498–99. Where it is

relatively clear, rather than merely speculative, that one or

more members have been or will be adversely affected by a

defendant’s action, and where the defendant need not know

the identity of a particular member to understand and respond

to an organization’s claim of injury, we see no purpose to be

served by requiring an organization to identify by name the

member or members injured.
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 19

However, even if Summers and other cases are read to

require that an organization always identify by name

individual members who have been or will be injured in order

to satisfy Article III, the district judge erred in dismissing the

complaint without granting leave to amend. The State agrees

that leave to amend should have been granted. Plaintiffs had

specifically requested (though such a request was not

necessary) permission to amend if their complaint was held

insufficient. It is black-letter law that a district court must

give plaintiffs at least one chance to amend a deficient

complaint, absent a clear showing that amendment would be

futile. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d

1048, 1052 (9th Cir. 2003) (“Dismissal with prejudice and

without leave to amend is not appropriate unless it is clear on

de novo review that the complaint could not be saved by

amendment.”); see also Foman v. Davis, 371 U.S. 178, 182

(1962) (“In the absence of any apparent or declared

reason—such as undue delay, bad faith or dilatory motive on

the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the

opposing party by virtue of allowance of the amendment,

futility of amendment, etc.—the leave sought should, as the

[Federal Rules of Civil Procedure] require, be ‘freely

given.’”). The Supreme Court has recently confirmed

(though such confirmation was hardly needed) that a

membership organization should have the opportunity to

provide evidence that bolsters its claim of associational

standing when the organization reasonably believes, “in the

absence of a state challenge or a court request for more

detailed information,” that “it need not provide additional

information such as a specific membership list.” Alabama

Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1269

(2015).
20 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE

B. Statutory Standing

As a threshold matter, Plaintiffs contend that the district

judge abused his discretion by granting, sua sponte, Nevada’s

withdrawn motion to dismiss on the ground that Plaintiffs

lack statutory standing. Such an action by the district court,

it hardly needs saying, was unusual. However, because we

conclude on the merits that the district court erred in

dismissing the complaint, we need not address Plaintiffs’

contention beyond noting the unusual nature of the district

judge’s action.

In relevant part, the notice provision of the NVRA

provides:

(b) Private right of action

(1) A person who is aggrieved by a

violation of this chapter may provide written

notice of the violation to the chief election

official of the State involved.

(2) If the violation is not corrected within

90 days after receipt of a notice under

paragraph (1), or within 20 days after receipt

of the notice if the violation occurred within

120 days before the date of an election for

Federal office, the aggrieved person may

bring a civil action in an appropriate district

court for declaratory or injunctive relief with

respect to the violation.

(3) If the violation occurred within 30

days before the date of an election for Federal
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 21

office, the aggrieved person need not provide

notice to the chief election official of the State

under paragraph (1) before bringing a civil

action under paragraph (2).

52 U.S.C. § 20510(b).

The district judge held that Plaintiffs did not provide

timely notice under the NVRA and therefore lacked standing

under the statute. The State makes two arguments seeking to

justify the dismissal for lack of statutory standing. First, the

State argues that Plaintiffs’ letter did not identify any

violations of the NVRA occurring within 120 days of a

federal election, and therefore Plaintiffs were required to give

the State 90 days to cure, rather than the 20 days Plaintiffs

actually gave. Second, the State argues that Plaintiffs did not

qualify for the statute’s exception to the notice requirement

because Plaintiffs did not plausibly allege in the complaint,

which Plaintiffs filed within 30 days of a federal election, that

the State was currently violating Section 7. Both arguments

rest on the same premise—that there was no reason to believe

that the violations Plaintiffs identified in their December

2011 field investigations were still occurring in May 2012,

when Plaintiffs sent their letter, and in June 2012, when

Plaintiffs filed their complaint. We disagree with the

premise.

In their May 10, 2012 letter, Plaintiffs wrote that Nevada

was engaged in systematic and ongoing violations of Section

7 of the NVRA. Some of their evidence came from their

December 2011 field investigations. Plaintiffs provided

written notice to Nevada under paragraph (1) of § 20510(b)

about six months after completing their field investigations. 

Their May 10 notice was provided “within 120 days before
22 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE

the date of the next election for Federal office,” which was to

take place on June 12, 2012. If Plaintiffs had provided notice

of discrete violations that had occurred more than 120 days

before June 12, but had not occurred thereafter, they would

have had to wait 90 days from the date of their notice before

bringing suit. But because they provided notice within the

120-day period before June 12 and alleged in their notice that

the violations were ongoing, they needed to wait only 20 days

before bringing suit.

In their June 11, 2012 complaint, Plaintiffs alleged that

the violations they described in their letter had not been

remedied. The complaint was filed one day before a federal

election. As in their letter, Plaintiffs pointed to the December

2011 field investigations and alleged that the systematic

violations they discovered in December were ongoing. 

Because Plaintiffs plausibly alleged that the State was

violating the statute within 30 days of a federal election, they

were not required to give the State any prior notice of, or

opportunity to cure, the violations alleged in the complaint.

The district judge faulted Plaintiffs for not providing

notice when they completed their field investigations in

December 2011. Because Plaintiffs had not provided notice

when they discovered the alleged violations, he refused to

credit the allegations in the complaint that the violations were

ongoing as of the date of Plaintiffs’ May 10 notice letter or as

of the date of the June 11 complaint. He wrote, “If Plaintiffs

would have sent notice to [Nevada’s Secretary of State]

immediately after the December investigation, then Plaintiffs

could have reasonably argued that the violations were still

ongoing as of the notice.” That is, because Plaintiffs did not

send their notice letter in December, as soon as they

discovered the alleged violations through their field
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 23

investigations, the district judge refused to believe that they

were ongoing violations that continued to occur in May and

June. Nevada argues that the district judge was correct in

refusing to believe that Plaintiffs had properly alleged that the

violations, discovered in December, continued in May and

June.

The district judge erred in concluding that the alleged

violations were not plausibly alleged to be ongoing during the

120-day and 30-day periods before the June 12 election. For

example, the complaint alleges that it was “standard

procedure” for office staff not to ask assistance clients if they

wished to register to vote. The complaint alleges that in each

office visited by the investigators, “the clerks stated that voter

registration applications are provided only to clients who

check ‘Yes’ in response to the question whether they ‘would

. . . like to register to vote here today,’ despite the NVRA . . .

requirement that all persons engaging in covered transactions

receive a voter registration form application unless they

specifically decline, in writing, to receive such an

application.” The complaint further alleges that two of the

public assistance offices visited “did not have any voter

registration applications to provide to clients who engaged in

transactions covered by the NVRA.” One of the offices had

not had voter registration application forms for over a year. 

Another office had not had the forms for over two years. 

Finally, the complaint alleged, “The violations of the NVRA

described in the notice letter have not been remedied.”

It is impossible to read these allegations and to conclude

that there is no reasonable possibility that some of the

violations Plaintiffs uncovered in December were continuing

as of the dates of the notice and the complaint. Indeed, given

the extent and nature of the violations discovered in
24 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE

December it is likely, not merely plausible, that some,

perhaps all, of the violations were continuing in May and

June. See Levitt v. Yelp! Inc., 765 F.3d 1123, 1134–35 (9th

Cir. 2014) (stating that to survive a motion to dismiss for

failure to state a claim following the Supreme Court’s

decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Plaintiffs’

factual allegations “must . . . suggest that the claim has at

least a plausible chance of success.”) (quoting In re Century

Aluminum Co. Sec. Litig., 729 F.3d 1104, 1107 (9th Cir.

2013)); Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir.

2013) (“A claim is facially plausible ‘when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.’” (quoting Iqbal, 556 U.S. at 678)).

Perhaps recognizing the weakness of the justification

advanced by the district judge, the State tries to justify the

dismissal on a different ground. The State argues that it is not

enough for a notice or complaint to describe an ongoing

violation and then to use the date of the notice or complaint

as the relevant date under the statute’s notice provision. The

State argues in its brief to us that “a discrete violation within

the applicable time period must be alleged.” The State does

not define what it means by “discrete violation,” but we infer

that the State means a violation that has been actually

observed during the applicable time period. We disagree with

the State.

A plaintiff can satisfy the NVRA’s notice provision by

plausibly alleging that a ongoing, systematic violation is

occurring at the time the notice is sent or, if no notice is sent,

when the complaint is filed within 30 days of a federal

election. Neither the notice nor the complaint needs to
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 25

specify that the violation has been actually observed, and that

there is thus a “discrete violation,” during the 120-day or 30-

day period. It is enough that the notice letter and the

complaint plausibly allege the existence of an ongoing

violation within the appropriate time period, whether or not

it was “discrete” during the period. See, e.g., Scott v.

Schedler, 771 F.3d 831, 834, 840 (5th Cir. 2014) (leaving

“intact the district court’s determination that the NAACP has

complied with the notice requirement” by alleging

“systematic and ongoing violations of several provisions of

Section 7 of the NVRA”); see also Arcia v. Florida Sec’y of

State, 772 F.3d 1335, 1339 (11th Cir. 2014) (remanding to the

district court to grant summary judgment to plaintiffs

challenging a state’s program that systematically removed

suspected non-citizens from the voter rolls within 90 days of

a federal election); Valdez v. Squier, 676 F.3d 935, 939 (10th

Cir. 2012) (upholding the grant of summary judgment for a

plaintiff who alleged that a state’s policy caused “ongoing

violations” of the NVRA).

The State argues that it would frustrate the purpose of the

notice provision to permit aggrieved persons to file

complaints alleging ongoing, systematic violations of the

NVRA within 120 or 30 days of a federal election when they

knew about the violations earlier. The State, like the district

judge, is concerned that a plaintiff can avoid giving state

officials notice and an adequate opportunity to cure simply by

waiting to provide notice until 120 or 30 days before a federal

election. To some degree, we are sympathetic with this

concern. If plaintiffs discovered NVRA violations in

December and waited six months to file suit, finally doing so

on the day before the primary election, it is reasonable to

suspect that Plaintiffs may have been seeking not only the

long-term benefit of correction of the NVRA violations but
26 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE

also the short-term benefit of the publicity obtained from

filing suit the day before voters go to the polls. This concern,

however, does not alter the meaning and operation of the

NVRA.

We have two responses. First, we cannot rewrite the

statute to avoid this consequence, for the statute expressly

permits it. See Hartford Underwriters Ins. Co. v. Union

Planters Bank, N.A., 530 U.S. 1, 6 (2000) (“[W]hen the

statute’s language is plain, the sole function of the courts—at

least where the disposition required by the text is not

absurd—is to enforce it according to its terms.” (internal

quotation marks omitted)); Am. Tobacco Co. v. Patterson,

456 U.S. 63, 68 (1982) (“[W]e assume that the legislative

purpose is expressed by the ordinary meaning of the words

used.” (internal quotation marks omitted)). Second, the

temptation to engage in strategic delay may not be as great as

the State and the district judge appear to believe. Plaintiffs

who seek compliance with Section 7 have good reason to air

their concerns long before the 120- and 30-day clocks begin

to run. Such plaintiffs are interested in maximizing voter

registration. It hardly serves plaintiffs’ voter registration

purpose to delay notification of the State, for the sooner the

State comes into compliance, the more voters will be

registered. Waiting to file a complaint threatens to frustrate

plaintiffs’ voter registration purpose, for a late filing

diminishes the likelihood that they will secure meaningful

relief before voter registration closes.

C. Leave to Amend

We hold, for the reasons given above, that Plaintiffs’

complaint satisfied both Article III and statutory standing. 

However, assuming for the moment that the complaint was
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 27

deficient, the district judge abused his discretion by

dismissing Plaintiffs’ complaint for lack of standing without

giving Plaintiffs an opportunity to amend. A “district court

may exercise its discretion to deny leave to amend due to

‘undue delay, bad faith or dilatory motive on part of the

movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party

. . . , [or] futility of amendment.’” Carvalho v. Equifax Info.

Servs., LLC, 629 F.3d 876, 892 (9th Cir. 2010) (quoting

Foman, 371 U.S. at 182). However, “[a] simple denial of

leave to amend without any explanation by the district court

is subject to reversal.” Eminence Capital, 316 F.3d at 1052. 

“Such a judgment is ‘not an exercise of discretion; it is

merely abuse of that discretion . . . .’” Id. (quoting Foman,

371 U.S. at 182).

D. Reassignment

Plaintiffs have asked, in the event we reverse and remand,

that we assign this case to a different district judge. We

reassign only in “‘rare and extraordinary circumstances,’” 

Krechman v. Cnty. of Riverside, 723 F.3d 1104, 1112 (9th

Cir. 2013) (quoting United Nat’l Ins. Co. v. R&D Latex

Corp., 242 F.3d 1102, 1118 (9th Cir. 2001)), such as when

the district court “has exhibited personal bias,” In re Ellis,

356 F.3d 1198, 1211 (9th Cir. 2004) (en banc) (quoting

United Nat’l Ins. Co., 242 F.3d at 1118), or when

“reassignment is advisable to maintain the appearance of

justice.” United States v. Kyle, 734 F.3d 956, 966–67 (9th

Cir. 2013) (quoting United States v. Lyons, 472 F.3d 1055,

1071 (9th Cir. 2006)).

We reluctantly conclude that we must reassign this case. 

The errors made by the district judge may suggest to a
28 NAT’L COUNCIL OF LA RAZA V. CEGAVSKE

reasonable outside observer that reassignment “to maintain

the appearance of justice” is necessary. The reasons for our

conclusion are apparent from what we have written above,

and we review them only briefly here. The judge sua sponte

sought to limit the effectiveness of representation by insisting

unreasonably that only two of Plaintiffs’ chosen out-of-state

attorneys be given pro hac vice status. See In re United

States, No. 14-70486, 2015 WL 3938190, at *8 (9th Cir. June

29, 2015) (“At minimum, a court’s decision to deny pro hac

vice admission must be based on criteria reasonably related

to promoting the orderly administration of justice, or some

other legitimate policy of the courts.” (citations omitted)). 

The judge did this despite the plea of Plaintiffs’ Nevada

lawyer that he needed the expert assistance of out-of-state

counsel who specialize in NVRA litigation, and over the

objection of one of the would-be out-of-state counsel that the

judge’s ruling would prevent depositions from being taken in

Nevada by associates in his firm. The judge’s actions came

very shortly after the Ninth Circuit had deemed “troubling”

his comments regarding out-of-state counsel in another case

involving a different Nevada agency. Henry A. v. Wilden,

678 F.3d 991, 1012 (9th Cir. 2012). Based on this and other

cases, a reasonable observer could conclude that the judge’s

feelings against out-of-state attorneys are both wellestablished and inappropriately strong. See Great Basin Res.

Watch v. United States Dep’t of the Interior, No. 3:13-CV00078-RCJ, 2014 WL3697107, at *3 (D. Nev. July 23, 2014)

(this same judge expressly stated he would “presume[] that

the out-of-state lawyers are unwilling to obey the ethical

strictures that govern all other attorneys”). Further, the judge

sua sponte and without notice dismissed Plaintiffs’ case based

on a motion the State had previously withdrawn, pursuant to

a joint stipulation by the parties. Still further, the judge

misread the complaint when he concluded that Plaintiffs had
NAT’L COUNCIL OF LA RAZA V. CEGAVSKE 29

failed to allege that they had changed their behavior and had

thus suffered no injury, when Plaintiffs had alleged that they

had expended additional resources on voter registration as a

result of the State’s violation of Section 7. Finally, the judge

dismissed the complaint without leave to amend despite

Plaintiffs’ explicit request that they be allowed to amend their

complaint if the judge found its allegations insufficient.

Conclusion

Plaintiffs have satisfied the standing requirement of

Article III by plausibly alleging they have suffered injury in

fact fairly traceable to the State’s noncompliance with

Section 7 of the NVRA. Plaintiffs have also satisfied the

statute’s notice requirement in two ways. First, they notified

the State that violations were occurring 120 days before an

election, thus authorizing them to file suit after waiting 20

days from the date of their notification. Second, they

plausibly alleged that the State was violating Section 7 within

30 days of a federal election, thus permitting them to file suit

without first notifying the State (even though Plaintiffs in fact

had done so). We reverse the district court’s dismissal of the

complaint for lack of constitutional and statutory standing

and remand the matter for further proceedings consistent with

this opinion. We deny as moot Plaintiffs’ motion for judicial

notice. We instruct the Chief Judge of the District of Nevada

to assign the case to a different district judge.

REVERSED, REMANDED and REASSIGNED.