Barring voter intimidation

Democrats ask SCOTUS to restore order barring voter intimidation in Ohio

By Josh Gerstein and Darren Samuelsohn

Democrats made a last-ditch plea to the Supreme Court Sunday night, urging the justices to restore an injunction barring Donald Trump's campaign and its allies from Election Day actions that could intimidate voters looking to cast their ballots in the battleground state of Ohio.

The Ohio Democratic Party's emergency application to the high court asked the justices to reimpose the restraining order a federal appeals court lifted earlier in the day, arguing the 6th Circuit had issued a finding “with no basis in law.”

The application seems likely to face an uphill battle at the shorthanded Supreme Court. Five justices are typically needed to grant such relief and the court is currently split 4-4 between Democratic and Republican appointees. Partisan considerations aside, the justices are also often wary of making last-minute changes to election rules or procedures.

U.S. District Court Judge James Gwin imposed the injunction Friday at the request of Ohio Democrats, who sued their Republican counterparts, the Trump campaign, Trump ally Roger Stone and his group Stop the Steal over their plans to seek out voter fraud at the polls and to conduct what Stone describes as "citizens'" exit polls.

Gwin's broad order prohibited a variety of activities at or near polling places, such as following or photographing voters or their vehicles or informing them of the penalties for voter fraud.

The judge's order was specifically aimed at the Trump campaign, Stone and Stop the Steal, while Gwin — a Democratic appointee based in Cleveland — said he was denying the request for a restraining order against the Ohio Republican Party. However, the order he issued barred similar actions at or near polling places by "groups affiliated with the Clinton for Presidency campaign."

After Trump's campaign appealed, a three-judge panel of the Cincinnati-based 6th Circuit Court of Appeals issued a brief order Sunday morning lifting the injunction.

The appeals court judges did not offer a detailed explanation of why they granted the stay, but said the Ohio Democrats failed to meet their burden to get the injunction they received.

"We conclude that the Plaintiff did not demonstrate before the district court a likelihood of success on the merits, and that all of the requisite factors weigh in favor of granting the stay," the 6th Circuit panel wrote.

All three appeals court judges who ruled on the stay request, Alice Batchelder, John Rogers and Richard Griffin, are Republican appointees.

In their 36-page petition, the Democrats argued the 6th Circuit issued its finding without requesting any substantive briefings on the case, an “extraordinary departure from the most basic requirements of appellate procedure” that led to a “cursory order with no basis in law.”

How could the court of appeals, the Democrats asked, “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.”

The Democrats' suit pointed to statements by Trump urging supporters to show up at polling places in "certain areas" and take steps to make sure individuals do not cast multiple votes.

However, Trump's camp said they had no plans to break the law and they raised doubts about the constitutionality of Gwin's injunction, which could have been read to prohibit some activities by the media. It was also unclear whether the order was limited to Ohio or had broader geographic sweep.

"The order tramples upon core First Amendment freedoms. It imposes vague prohibitions against poorly defined categories of core political activity — talking to voters, giving information to voters, etc. — that guarantee hundreds (if not thousands) of Ohioans will be chilled from participating in our democratic process," Trump campaign attorney Chad Readler wrote. "The order prohibits anyone from having a truthful discussion about voting rules with another voter when the two are heading inside to vote....The untailored list of examples of such activity in the order offers more confusion than clarity."

The Ohio suit is one of at least six similar lawsuits Democrats have filed in the past week, urging judges to combat alleged voter intimidation by Trump and Stone.

The application filed with the Supreme Court Sunday night was directed to Justice Elena Kagan, who oversees the 6th Circuit. However, in high-profile cases, the circuit justice almost always refers such applications to all of her colleagues to allow them to weigh in for or against the requested relief.