Here, the strength of the final three factors of the stay analysis outweigh any probability of defendants’ success on the merits. Partly from defendants’ own doing, the electoral calendar works against their request for a stay of the district court’s preliminary injunction. The district court issued its preliminary injunction on September 9, 2020. While that timing may have been out of defendants’ control, defendants did not file their appeal of the preliminary injunction until October 5, 2020, nearly one month after the injunction sprang into effect. And they did not seek a stay of the district court’s order until October 9, 2020. Plaintiffs’ response to the stay motion was filed October 15, 2020.
During the period between September 9, the day of issuance of the preliminary injunction, and October 15, the day plaintiffs’ response was filed, both absentee voting and early in-person voting had begun in Tennessee. Plaintiffs have been working in their communities to inform their members and the general public about the district court’s preliminary injunction; collectively, they have spoken to over 1,500 voters at union meetings, virtual town halls, and voter-registration events. On Tennessee’s official government webpage about absentee voting, the defendants themselves prominently state that “[p]ursuant to the September 9, 2020 Order of the U.S. District Court, first-time voters are not required to vote in-person if they meet a legal reason to vote by-mail.” Absentee Voting, Tenn. Sec’y of State, https://sos.tn.gov/products/elections/absentee-voting (last accessed Oct. 17, 2020).
Given this situation, the injury to potential voters, who have relied on communications from defendants and local election officials, is great. Moreover, disrupting the new rules at this point poses significant risk of harm to the public interest in orderly elections. In this instance, there is no substantial harm to defendants in continuing to comply with rules they are currently following.
This is the same panel that divided sharply in another Tennessee voting emergency case.
The equities in this case and how the very conservative judges voted in the most recent case says something significant about reliance. This is why last night on Twitter I suggested that it seems unlikely the U.S. Supreme Court, after not granting a stay on the acceptance of absentee ballots received up to three days after the election without a postmark in Pennsylvania, would turn around after the election with a Justice Barrett and say that those ballots now could not be counted. The reliance interests are tremendous.
And: