Patterico's Pontifications


Sixth Circuit Reinstates TRO in Ohio Election Law Case

Filed under: 2008 Election — DRJ @ 6:01 pm

[Guest post by DRJ]

In a 9-5 decision, the en banc Sixth Circuit Court of Appeals reinstated the trial court’s TRO in the Ohio election law case. Rick Hasen at Election Law Blog believes the ruling will have these practical results [emphasis supplied]:

“A majority of the en banc court has reinstated a TRO, which will require the Ohio Secretary of State to send along to county elections boards those names that are a “mismatch” between voter registration and Ohio Bureau of Motor Vehicle records. The TRO does not require, and the en banc court majority emphasizes, that a county board is not required upon hearing of the mismatch to remove eligible voters from the rolls. But the court does suggest (on page 9 of the pdf) that it would be the basis for not counting absentee ballots of voters flagged as a mismatch barring further investigation by the board. There may also be some boards that could try to require mismatched voters voting in person to cast provisional ballots. And it also appears that to the extent the mismatch lists are public, it will provide the potential basis for challenges by the ORP on election day (though I believe it is now harder to mount such challenges in Ohio than it was in 2004, when the ORP threatened to make 35,000 challenges at the polls.”

Hasen has much more at his blog, including that he expects this decision will promptly be appealed to the Supreme Court:

“Because the issue presented here in part turns on whether this TRO comes too close to the election, in violation of the Supreme Court’s admonition in Purcell v. Gonzalez, I would expect a quick application for a stay of the en banc order directed to Justice Stevens, as Circuit Justice for the Sixth Circuit.”

In other words, stay tuned.


17 Responses to “Sixth Circuit Reinstates TRO in Ohio Election Law Case”

  1. “TRO” definition, please.


    Dave (a7494c)

  2. Good question. TRO stands for “temporary restraining order,” a temporary court order that directs someone – in this case, the Ohio Secretary of State as the chief enforcer of the State election laws – to do or not to do something. In most states, it can be entered on an emergency basis in 7-10 days with limited or no notice to the other party. The party requesting the TRO must show a reasonable likelihood that it will prevail on the merits, so some proof is required. If the judge grants the request for a TRO, it is typically followed by a contested hearing on an injunction in 1-2 months or earlier if the court deems it appropriate.

    DRJ (c953ab)

  3. A TRO which involves fundamental rights, such as First Amendment or voting, is one heck of a hard thing to get. The plaintiffs, here, must have had a very compelling case of actual voter fraud.

    nk (f2ee58)

  4. I haven’t read the decision, but I find it hard to believe that a matter that has been heard by the en banc court is still a “TRO.” No doubt the opposing party has been given notice and an opportunity to respond before the ruling was issued — though I guess I could be wrong if the courts acted quickly and denied the opposing party the opportunity to respond in order to preserve the TRO status of the matter and not convert it into a Prelim. Inj.

    WLS (26b1e5)

  5. Here – I OCR’d the decision so it can be copied and pasted. Enjoy!!

    Laura (5d8a25)

  6. Sec. of State Brunner has proven to be quite the partisan in the last week.

    JD (f7900a)

  7. I’d be surprised if, on something this big, this far before the election, Justice Stevens were to act unilaterally in granting a stay. I think he’d refer it to the full Court. Since this was the en banc Sixth Circuit overruling its own panel, that will carry a strong suggestion that the panel decision was an outlier. I don’t think the entire SCOTUS will stay the TRO; rather, I think the en banc decision is likely to stand until the election.

    And yes, indeed, it is fabulously rare for a TRO to result in an en banc ruling, at least in anything other than a death penalty case.

    Beldar (bbafd3)

  8. Forgive, but wtf is an en banc ruling?

    Damn lawyers… English not good enough for ya? :)

    Scott Jacobs (a1c284)

  9. The whole court — all the judges in the Sixth Circuit — sitting together as opposed in the three-judge panels which are the rule.

    nk (f2ee58)

  10. So usually the appeals court (I’ll use the 6th for this), generally hears cases with 3 judges, even though there’s 6 (so they can hear twice as many?). Occationally they ALL sit down for a case, and in such an instance it isn’t a “mere” ruling by the court, it is an en banc ruling?

    So ALL SCotUS decisions are en banc?

    Scott Jacobs (a1c284)

  11. Just about, although an en banc hearing is better viewed as an appeal from the decision of the three-judge panel. As for the Supreme Court, the individual justices often rule on preliminary and emergency matters in their respective circuits and then the entire Court decides whether to take the case farther.

    nk (f2ee58)

  12. Interesting that you link to Rick Hasen in this case but not when he’s discussing vote fraud and ACORN.

    Nanker Phelge (82bcfd)

  13. WankerFelcher pushing another meme. Apparently, its marching orders come from HuffandBlow

    JD (f7900a)

  14. JD – Wanker/JAR is just trying to change the subject.

    daleyrocks (d9ec17)

  15. I’d think the size of the bullhorn with which the Sixth Circuit majority called a penalty on the its own panel justices ought to give even a Justice Stevens pause when it comes to kicking a state political football into the national arena.

    mrkwong (a0f32a)

  16. This is rich:

    Yesterday, ACORN held a press conference to respond to charges that they enable voter fraud. I was in attendance and have a piece up on the homepage today about it. Here’s how ACORN responded to questions from the press:

    Q Out of the 13,000 workers responsible for collecting voter registrations how many have you fired for fraudulent activity?
    A “It’s a good question, I don’t have the number but I can try to find out,” Whelan said.

    Q Out of the 1.3 million voters registered by ACORN, is there any guess at how many are “Mickey Mouse” or duplicate registrations?
    A “It probably won’t be after the election that we can tell you.”

    Q Because state law requires you to submit every registration you collect, what percentage of the total voter registrations submitted does ACORN actually flag as being problematic before you send them in?
    A “I want to not give a number that I can’t back up.”

    Confidence inspiring, no? That’s a heck of a quality control system they have there, yesiree.

    Amphipolis (fdbc48)

  17. If I were them, I would have so many numbers and facts to give to reporters I would have to bring a notebook…

    Scott Jacobs (a1c284)

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