[EL] Sixth Circuit stay

[Jonathan Adler]

Having followed this litigation, this is not at all surprising.  Most of
the reporting on the SoS order at issue was embarrassingly poor, and the
district court's treatment of the relevant Sixth Circuit opinions was
virtually begging for reversal.


On Fri, Nov 16, 2012 at 11:57 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  Sixth Circuit Grants Stay in Ohio Provisional Ballot Case<http://electionlawblog.org/?p=44406>
> Posted on November 16, 2012 8:55 am <http://electionlawblog.org/?p=44406>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> You may recall when Judge Marbley ripped into Ohio SOS Husted
> <http://www.cleveland.com/open/index.ssf/2012/11/federal_judge_rips_husted_for.html#incart_m-rpt-2>for
> his last minute provisional ballot ruling<http://electionlawblog.org/?p=44277>?
> A few thoughtful readers told me to take this ruling, and the commentary<http://electionlawblog.org/?p=43906>about it, with
> some caution <http://electionlawblog.org/?p=43927>.
>
> Today this Sixth Circuit unanimously issued a stay<http://electionlawblog.org/wp-content/uploads/12-4354_Documents.pdf>of this ruling, finding Husted and Ohio likely to succeed on the merits:
> “Appellants have strong arguments that they will prevail on appeal on
> several critical issues….The district court’s order improperly expands the
> class of voters it was intended to cover and the types of provisional
> ballot issues it was meant to address….Moreover, appellants’ argument that
> the NEOCH plaintiffs lack standing to obtain relief on behalf of
> individuals who are non-SSN-4 provisional voters likely has merit….The
> district court also likely misapplied the doctrine of judicial
> estoppel….Read in this context, the district court’s interpretation of
> counsel’s statement appears problematic. The comment made during the motion
> hearing is not the sort of  ‘unequivocal’ prior position necessary for the
> imposition of judicial estoppel. See McMeans v. Brigano, 228 F.3d 674, 686
> (6th Cir. 2000). This is particularly so in light of the history of Form
> 12-B and the directives.”
>
>
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>  Posted in election administration <http://electionlawblog.org/?cat=18>, The
> Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off |
>
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-- 

Jonathan H. Adler
Johan Verheij Memorial Professor of Law
Director, Center for Business Law & Regulation
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
ph) 216-368-2535
fax) 216-368-2086
cell) 202-255-3012
jha5 at case.edu
http://www.jhadler.net
SSRN: http://ssrn.com/author=183995
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