Filed

ACLU of Nevada, alongside the Campaign Legal Center (CLC), filed an amicus brief asking the court to dismiss a case challenging Nevada's efforts to maintain its voter rolls.

The case, Republican National Committee v. Aguilar, was filed against Nevada Secretary of State Francisco Aguilar by The Republican National Committee, the Nevada Republican Party, and a Nevada voter, claiming the state must be violating its obligations under the National Voter Registration Act (NVRA) because certain misleading metrics show more registered voters than eligible voters in some counties.

The amicus brief explains that the lawsuit is based on deeply flawed and misleading metrics that have been pieced together by unreliable and inaccurate measures of voter registration rates and that have been repeatedly rebuked by federal courts. The voter registration numbers they rely on are taken from a single recent snapshot of the state's voter roll but use an outdated census of the citizen voting age population for comparison.

Unfortunately, this lawsuit is just one of several cases recently filed across the country with claims under the NVRA and is part of a years-long pattern to bully states into administering voter roll purges beyond what the law requires. Without proper guardrails, when states rush to purge voters, eligible voters, in many cases, are kicked off the rolls and disenfranchised.

These lawsuits are based on false information and only erodes the public's trust and integrity in our elections.

In Nevada, people who are detained in a city or county jail are being held pre-trial or are serving a misdemeanor sentence and, therefore, have not lost their right to vote. Despite never losing this right, eligible voters detained in Nevada jails have continuously been denied meaningful access to the ballot box. Recognizing the unique constraints and widespread disenfranchisement of voters taking place in Nevada jails, the 2023 Nevada Legislature passed Assembly Bill 286, mandating that jail administrators work with the city or county clerk to implement policies and procedures that would ensure eligible voters detained in these facilities can register to vote and cast their ballot in an election. 

Since the bill took effect January 1, the ACLU of Nevada has been monitoring the implementation of the policies and procedures outlined in AB286, which should have been in place for the Presidential Preference Primary; however, public records requests revealed that Elko County Jail had not implemented such policies and continues not to be compliant. ACLUNV attorneys sent a demand letter to the jail, urging them to be compliant with the law or legal action would take place. The jail continues not to be compliant.

Without the implementation of these policies and procedures as outlined in the bill, eligible voters detained in Elko County Jail will continue to be disenfranchised and have their voices silenced ahead of a critical election year.

Case Background

Our client is a prisoner at Florence McClure Women's Correctional Facility in Southern Nevada. She was sexually abused by a prison chaplain, Donald Burse, on two separate occasions in August 2020. While Burse was fired after the abuse came to light, and there is a pending criminal case, we are taking on this case because we believe that the Nevada Department of Corrections has not done enough to make sure that such abuse will not happen again in the future.

Mr. Burse frequently visited Ms. Flynn’s dorm and, on a specific occasion, asked about her religion and then started making inappropriate sexual comments. Mr. Burse was the institutional chaplain for Florence McClure Women’s Correctional Center. He lured her to his office (inside the chapel of the prison), and Ms. Flynn went under the belief that she would receive a bible. Mr. Burse then asked if she would perform sexual acts on him and allow him to perform sexual acts on her in exchange for him to obtain certain items for her. He then sexually assaulted her in the chapel. Shortly after this sexual assault, Mr. Burse again sexually assaulted Ms. Flynn inside his office and threatened her not to speak of it.

The Eighth Amendment

Under the Eighth Amendment United States Constitution, prisoners are entitled to "humane conditions" while incarcerated. That applies to the physical condition of the prison facilities and proper medical care and also holds prisons accountable when prison staff takes advantage of or abuses prisoners. When a prison staff member sexually assaults a prisoner, it not only violates Nevada law, it also violates the Constitution. Under the Eighth Amendment, sexual assault in prisons doesn't only include forcible rape but also includes sex acts that have been solicited by prison staff through threats of discipline or promising contraband to prisoners. Sexual acts between prison staff and prisoners are rarely legal because a prisoner's consent is rarely legal. This is because the Constitution recognizes that prisoners are particularly vulnerable to predatory actions by staff members. Sexual abuse by staff harms the abused prisoner, but the abuse also threatens the safety of everyone else who works or lives in the facility. It undermines the professionalism and discipline of prison staff and the confidence of incarcerated people that prison staff will protect them from abuse.

Ms. Flynn filed a grievance; it was sustained, and Mr. Burse was terminated. He was charged with three felony counts, and the criminal case is ongoing.

These acts violated Ms. Flynn’s Eighth Amendment Rights and inflicted emotional distress.

What We're Seeking

We are fighting to make sure NDOC is fulfilling its constitutional obligations and that our client and all incarcerated women are protected from future sexual misconduct by prison staff. Our client is seeking injunctive and declaratory relief after being sexually assaulted by Donald Burse more than once.

Through injunctive relief, the goal is to prevent employees, staff, contractors, or agents of NDOC from carrying out and implementing unlawful policies, practices, and acts that create a substantial risk of harm, including sexual assaults, to Ms. Flynn and other inmates and require NDOC to develop and implement policies, procedures, and practices to ensure inmates are protected from harm due to sexual abuse and harassment such as prohibiting inmates from being in an unmonitored area with staff of the opposite gender.

Another practice we are asking for is prohibiting staff members accused of sexual assault/harassment from having contact with inmates, at least until the matter is fully investigated, prosecuted, and dismissed. We also request that all staff have adequate knowledge, skill, and ability to prevent, detect, and respond to sexual abuse, harassment, and grooming by staff members toward individuals in custody.

We are also seeking declaratory relief.

On the other parties:

James Dzurenda serves as the Director of NDOC. Defendant Does 1-10 are unknown employees, staff, contractors, or agents of NDOC who were responsible for hiring, supervising, and monitoring Donald Burse. They were also responsible for developing and implementing NDOC’s policies and procedures on prevention, response, and elimination of sexual assaults within prisons, and aware of the risk of sexual assaults within FMWCC and chose to ignore it. Our claim states that they acted with deliberate indifference to a substantial risk of harm to Ms. Flynn in violation of the 8^th Amendment.