Via Chris Geidner, comes this short order from a Sixth Circuit panel in the OH case against the Trump campaign and others to stop voter intimidation. Yesterday I wrote that I see some issues of due process, vagueness and overbreadth in the District Court’s order and I expected there will at least be a modification of it, if not an outright reversal.
But there’s a procedural wrinkle here. The plaintiffs had not yet filed their opposition to the stay. Instead, they were asked only to file an opposition to the Trump campaign’s request for an initial en banc hearing before the entire Sixth Circuit. That response was limited to 10 pages and focused on why en banc review is unwarranted.
Now, this very conservative 6th Circuit panel says it reviewed the Trump campaign’s stay request and the Democrats’ opposition to the en banc and that was enough to conclude that the Democrats were unlikely to succeed on the merits. That seems procedurally unfair.
Not clear what the next steps are. Democrats could seek en banc review (after saying it was not initially warranted), but the 6th Circuit I believe still leans Republican, and this one could break on party lines. (Though not necessarily, given the problems with this injunction.)
The Democrats could also try the Supreme Court, but they are divided 4-4 and have been wary of election orders just before the election.
So this is probably the end of the line for this.
But, as I wrote yesterday regarding the loss in the DNC v. RNC case:
This is, of course, a loss for the DNC, but not really a complete one. Indeed, as I argued in Slate,this suit and the other suits around the country have served as information-forcing devices to get Republicans and the Trump campaign to reveal their plans surrounding “ballot security,” and to get assurances that the campaigns are taking steps to prevent voter intimidation on election day. Further, these courts are now open for business should there be problems on election day, and the potential for further court action remains, including for lawyers and professions on the Republican side who gave court assurances about what is planned for election day.
[This post has been updated.]
Further update: The Sixth Circuit has denied initial en banc consideration.