You may recall when Judge Marbley ripped into Ohio SOS Husted for his last minute provisional ballot ruling? A few thoughtful readers told me to take this ruling, and the commentary about it, with some caution.
Today this Sixth Circuit unanimously issued a stay of this ruling, finding Husted and Ohio likely to succeed on the merits: “Appellants have strong arguments that they will prevail on appeal on several critical issues….The district court’s order improperly expands the class of voters it was intended to cover and the types of provisional ballot issues it was meant to address….Moreover, appellants’ argument that the NEOCH plaintiffs lack standing to obtain relief on behalf of individuals who are non-SSN-4 provisional voters likely has merit….The district court also likely misapplied the doctrine of judicial estoppel….Read in this context, the district court’s interpretation of counsel’s statement appears problematic. The comment made during the motion hearing is not the sort of ‘unequivocal’ prior position necessary for the imposition of judicial estoppel. See McMeans v. Brigano, 228 F.3d 674, 686 (6th Cir. 2000). This is particularly so in light of the history of Form 12-B and the directives.”