An en banc ruling of the Fifth Circuit has issued a stay against last Friday’s order striking down Texas voter identification laws.

The Court looked at four key factors when deciding whether or not to grant a stay pending appeal: (1) whether the stay applicant has made a strong showing that he
is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

The first two factors are the most important, and the court focused on them when deciding to issue the stay. First, the court looked to the Supreme Court’s tendency to preserve the status quo on the eve of an election in order to protect the process from confusion and misapplication of the rules.

Here, the district court’s decision on October 11, 2014 presents similar logistical problems because it will “be extremely difficult, if not impossible,” for the State to adequately train its 25,000 polling workers at 8,000 polling places about the injunction’s new requirements in time for the start of early voting on October 20 or even election day on November 4. The State represents that it began training poll workers in mid-September, and at least some of them have already completed their training. The State also represents that it will be unable to reprint the “election manuals that poll workers use for guidance,” and so the election laws “will be conveyed by word of mouth alone.”

Then, the court examined what other stays previously granted by the Supreme Court had in common with one another. In the opinion, the court emphasized that “the common thread is clearly that the decision…would change the rules of the election too soon before the election date,” and that “the timing of the decisions rather than their merits seems to be the key.”

The court decided both that the State was likely to succeed on the merits of its case (at least as far as their argument that the rules should not be changed so close to an election is concerned,) and that the state would indeed be irreparably harmed if the rules were changed so close to Election Day. They also agreed that because “the election machinery is already in motion, the public interest weighs strongly in favor of issuing the stay.”

Of particular note to attorneys is the concurrence from the lone Obama appointee on the panel:

We should be extremely reluctant to have an election take place under a law that a district court has found, and that our court may find, is discriminatory. As always, however, we must follow the dictates of the Supreme Court. In two recent decisions, it stayed injunctions issued based on findings that changes in an election law were discriminatory.

I agree with Judge Clement that the only constant principle that can be discerned from the Supreme Court’s recent decisions in this area is that its concern about confusion resulting from court changes to election laws close in time to the election should carry the day in the stay analysis. The injunction in this case issued even closer in time to the upcoming election than did the two out of the Fourth and Sixth Circuits that the Supreme Court recently stayed. On that limited basis, I agree a stay should issue.

Last week’s ruling came as a shock to analysts who believed that the panel would not rule until after Election Day.

Early Voting in Texas starts on October 20.


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