Breaking: Supreme Court Splits 5-4 Over Extending Stay in Hawaii Election Case

The Supreme Court has just issued the following order in the Hawaii election case:

The application for injunction pending appellate review presented to Justice Kennedy and by him referred to the Court is granted. Respondents are enjoined from counting the ballots cast in, and certifying the winners of, the election described in the application, pending final disposition of the appeal by the United States Court of Appeals for the Ninth Circuit. Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.

Earlier I had talked about how Justice Kennedy’s initial order stopping the counting of the votes had echoes of the controversial Supreme Court stay order decision in 2000 to stop the partial recount in Florida in Bush v. Gore. And I further noted that Justice Kennedy’s decision to announce the stay while voting was taking place could affect how many people would be voting (after all, why bother to vote if you think the Court is not going to allow your vote ultimately to be counted).  Since then, those holding the vote have extended the timing for voting by three weeks, and this new order could also affect who votes.

And why the 5-4 split?  We don’t know because the Court’s order gives us no reasoning. But with the liberals opposing, it could well be a split on the underlying merits of the constitutional challenge to a Native Hawaiian only election.  I talk more about the Supreme Court’s emergency orders in election cases, often issued with no explanation or reasoning, in a forthcoming piece, Reining in the Purcell Principle,Florida State University Law Review (forthcoming 2015) (draft available).


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