Order with no noted dissents.
Aside from the merits of this decision (which I discussed in this post), there is a whole lot going on in this opinion about proper application of the Purcell principle (as in, when courts should act at the last minute in voting cases to protect voting rights) as well as the proper application of en banc procedures in this case (the case proceeded from an en banc call to an immediate order issuing an injunction pending further appeal) in just two days. There is also the question whether this is fairly characterized as an injunction or stay pending a hearing that will occur in January. The dissent is right that this is an injunction rather than a stay, and at least at the Supreme Court level there is a higher standard to get one of those.
Perhaps most interestingly, this is the case where Judge Reinhardt opined that given the makeup of the en banc panel that the plaintiffs would likely lose. So the judge’s nose-counting was off here.
So Arizona’s only option here would be to address an emergency request to Justice Kennedy, putting him in a very unusual position. He likely agrees with the dissenters, if only on the Purcell principle and the Ninth Circuit’s super truncated procedure. So does he stay the injunction or does he refer to the whole Court, which could well divide 4-4, leaving the 6-5 en banc ruling standing.
So Arizona went to Justice Kennedy, Justice Kennedy had Bush v. Gore-timing for expedited briefing, referred it to the whole court, and the entire court, without noted dissent, stayed the injunction issued by the Ninth Circuit which temporarily blocked the law banning ballot harvesting.
I think this is a reflection of the Purcell Principle in action—you really cannot make last minute changes to the election rules before this Supreme Court. The Justices seem to agree. Plus, how would it have looked for a Supreme Court dividing 4-4 on the eve of the election when the Court itself is one of the main issues.
In the meantime, there was a window of less than 24 hours when ballot harvesting was again legal in AZ, and reports indicate that it went on. I believe those votes were legally collected and will be counted.
Regardless of the merits, this close to the election there really is a problem with this kind of ping pong of rules, for election administrators, poll workers, and voters.
[This post has been updated.]