I noted earlier that a Sixth Circuit panel, cutting some important corners, reversed a trial court order barring the Trump campaign and others from acts of voter intimidation and other activity in Ohio.
The Democrats have now filed this application with Justice Kagan, which she is likely to refer to the Supreme Court, asking for the order to be reinstated. From the introduction:
Applicant respectfully requests that this Court vacate the order issued by the Court of Appeals for the Sixth Circuit on November 6, 2016, staying a temporary restraining order (“TRO”) issued by the U.S. District Court for the Northern District of Ohio on November 4, 2016, that enjoined Donald J. Trump for President, Inc. (“the Trump Campaign”) and associated persons from engaging in activities that would otherwise have the effect of intimidating, harassing, or coercing voters. The Sixth Circuit ordered the stay notwithstanding that it did not call for or receive a substantive response brief from Applicant and, by its own admission, had not yet reviewed the critical evidence on which the District Court relied.
This extraordinary departure from the most basic requirements of appellate procedure led the Sixth Circuit to issue a cursory order with no basis in law. A Court of Appeals cannot conclude that a lower court has abused its discretion without first reviewing and considering the actual evidence on which the lower court’s decision was based. Yet the Sixth Circuit somehow found that the District Court had abused its discretion before it had even received the transcript of the evidentiary hearing, at which live witnesses presented testimony that informed the District Court’s decision. Crucially, that decision was stayed even though it required compliance with specific, clear, and unchallenged provisions of Ohio election law. If left in place, the Court of Appeals’ stay will, in the words of the Republican Director of the Cuyahoga County Board of Elections, put the “safety and well-being” of Ohio voters at risk from Trump-encouraged and unauthorized “watchdogs” at the polls. 415A. The Court of Appeals’ unprecedented stay should be vacated without delay.
I continue to see long odds for this application.