Despite Ned Foley’s earlier skepticism of the district court judge’s early voting ruling, he now thinks Ohio should drop further appeals to the 6th Circuit (an appeal which I think has a pretty good chance of success). Ned’s reasoning:

Although there was much discussion of Equal Protection (as a fundamental principle of federal constitutional law) in what the three judges wrote on Friday, the panel’s decision is best understood as exercise of “equity” law, an ancient branch of Anglo-American jurisprudence that governs the issuance of court-ordered “injunctions,” which are decrees that require defendants to stop engaging in challenged practices. “Preliminary injunctions” are a distinct subset of a court’s “equitable” powers, designed specifically to be temporary measures to put the contesting parties in the fairest possible position during the time that the court deliberates about the ultimate merits of the matter under the law. Friday’s ruling affirmed the granting of a preliminary injunction against the state’s statutory provisions that had engendered the differential treatment of military and non-military voters during the last three days of early voting before Election Day (November 6), and this ruling can be seen as a judicial effort to figure out what is the most “equitable” temporary situation that should occur in the context of early voting in Ohio for this year’s presidential election, recognizing that the ultimate Equal Protection claim regarding the distinction between military and non-military voters applies to future elections as well and will be decided in due course following full judicial proceedings on the merits of that claim.

As a Remedies person, I’m very skeptical of open-ended calls for equitable discretion, especially so in the context of resolving election disputes, where we are likely to see very different views of the equities from liberal and conservative judges.