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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Monday, October 30
 
Sixth Circuit Stays Ohio TRO
Yesterday evening, a three-judge panel of the Sixth Circuit Court of Appeals issued this brief order staying most provisions of the temporary restraining order that U.S. District Judge Algenon Marbley issued on Thursday. The order upholds Judge Marbley's order that absentee ballots be preserved, but stays the TRO's provisions that absentee ballots be counted regardless of whether they include the correct identifying information. The Sixth Circuit says that it will issue an opinion explaining its ruling "shortly."

For reasons I explained here, I suspect the Sixth Circuit's order will create more disruption than it resolves. This is encapsulated nicely in the headline to this Cleveland Plain Dealer story: "Voter ID rules change a third time in four days." Especially problematic is figuring out what to do with absentee ballots that were cast during the period that the TRO was in effect. It would seem transparently unfair, and perhaps a violation of those voters' right to vote, not to count absentee ballots that complied with the terms of the court order then in effect. The Sixth Circuit's order doesn't address this question, but hopefully its opinion will.

At this point, what's essential is that the Sixth Circuit panel promptly issue an order or opinion explaining its ruling. This is absolutely vital to give election officials and voters marching orders, and to provide guidance for the parties and the district court for the preliminary injunction hearing set for Wednesday. The Sixth Circuit should issue such guidance by the close of business today, so as to allow Judge Marbley and the litigants to prepare for this hearing.

Update: The Sixth Circuit today released this amended version of the order staying the TRO. It reveals that the vote was 2-1, with Judge Tarnow (a federal district judge from Michigan sitting by designation) dissenting. Judge Tarnow's brief dissent states that he would have agreed with Judge Marbley's conclusion and assessment of the four factors for issuing preliminary injunctive relief.

As of 3:53 pm, there's still no opinion from the two-judge majority on the Sixth Circuit's website.

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Moritz College of Law The Ohio State University