Democrats made a last-ditch appeal late Sunday to the Supreme Court to re-instate a restraining order against the Donald Trump campaign to prevent voter intimidation tactics, an order that was issued by a federal judge in Ohio on Friday but then halted by an appeals court Sunday.
The Democrats, in their emergency application to the Supreme Court, pointed to procedural issues with the appeals court action. Namely, the panel of 6th Circuit judges blocked the restraining order from being implemented without giving the Democrats a chance to argue directly to the appeals court panel, via briefs or a hearing, in favor of keeping the restraining order in place.
The Democrats’ filing also argued in favor of a restraining order on the case’s merits.
“The Sixth Circuit’s stay will cause irreparable harm to the Ohio Democratic
Party, its candidates, and most importantly thousands of voters who are exposed to intimidation, harassment, and coercion from Trump-incited illegal ‘watchdogs’ at the polls,” the Democrats said.
The filing added that, if the district court’s restraining order was found to be too broad, the appropriate response would be to send it back to the district court for it be more narrowly tailored, rather than to halt the restraining order entirely.
The case was brought by the Ohio Democratic Party against the Ohio GOP, Trump campaign, Trump-ally Roger Stone and his group Stop the Steal. It was one of a series of state party lawsuits filed that said that Trump’s rhetoric calling for vigilante poll watchers — as well as the individual actions and comments of state party officials and Trump supporters — was encouraging illegal voter intimidation behavior.
The federal judge declined to issue a restraining order against the Ohio GOP, citing lack of evidence, but told the Trump campaign and Stone to avoid “conspiring to intimidate, threaten, harass, or coerce voters on Election Day.” The Trump camp appealed that decision, and the appeals court panel sided with the Republicans in an order that said that the Democrats had failed to prove their case.
The matter will now be up to Justice Elena Kagan — to whom the application was technically filed, as she oversees the 6th Circuit — and to the rest of the Supreme Court, where Kagan is likely to refer it, as is the protocol of any high-profile application.
UC-Irvine School of Law Professor Rick Hasan wrote on his Election Law Blog that he saw “long odds” for the Democrats’ success. They would need five justices to agree to reverse the 6th Circuit’s action, which is unlikely, given the court is divided four-four ideologically. Additionally, the Supreme Court has shown a habit of being hesitant to disrupting the status quo in election law when Election Day is very close.
Read the application below: