[EL] questions about preliminary relief and the Voting Rights Act Amendments of 2014

Tue Jan 28 14:47:20 PST 2014

It is possible to consider balance of hardships to be a kind of probabilistic determination of likely, erroneously-imposed, irreparable harm. Likelihood of success could be smuggled in that way.

If the court thinks the plaintiffs are unlikely to prevail - that, for example, they only have a 20% of prevailing - and a preliminary injunction is denied, then they are, on a probabilistic basis, likely to erroneously suffer, as the court sees it, only 20% of the irreparable harm that they would likely suffer (erroneously) if the court thought they had a 100% chance of winning. That's from an ex ante point of view. The defendant in a sense is likely to suffer erroneously, if the preliminary injunction is granted, 80% of the irreparable harm that it would suffer if it had a 100% chance of prevailing.

See Judge Posner's decision in Roland Machinery Co., 749 F.2d 380 (1984). In that case Posner discusses the sliding scale approach to grant of preliminary injunctions. Many circuits used the sliding scale approach, at least prior to Winter, 129 S. Ct. 365 (2008) (requiring *likelihood* of irreparable harm, not just possibility), and Perry v. Perez, 132 S. Ct. 934 (2012) (a case list members will be familiar with that required a *likelihood* of success). Some circuits still use it, rightly or wrongly.

Posner treats the sliding scale as a way for courts to minimize likely irreparable harm that would be imposed on the party that ultimately prevails. Irreparable harm that would be suffered, if the preliminary injunction is not granted, by a party who is 80% likely to win, should weigh more heavily, because it is more likely to be imposed in error on that party. (Courts' predictive powers are of course imperfect; personally, I'm much better at predicting the past than the future, thought even then I sometimes get it wrong.) So perhaps a court could say that if it's likely the plaintiffs will prevail, the balance of hardships tips more toward the plaintiffs than it would if the defendants were likely to prevail. And vice versa. According to Posner,

"If the plaintiff does show some likelihood of success, the court must then determine how likely that success is, because this affects the balance of relative harms ....

"The idea underlying these ... approaches is that the task for the district judge in deciding whether to grant or deny a motion for preliminary injunction is to minimize errors: the error of denying an injunction to one who will in fact (though no one can know this for sure) go on to win the case on the merits, and the error of granting an injunction to one who will go on to lose. The judge must try to avoid the error that is more costly in the circumstances. That cost is a function of the gravity of the error if it occurs and the probability that it will occur."

I'm not a big Posner fan, but this approach could allow likelihood of success to be brought in as part of the balance of the hardships.

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Christopher S. Elmendorf
Sent: Tuesday, January 28, 2014 1:28 PM
To: John Tanner; Pildes, Rick
Cc: law-election at uci.edu
Subject: Re: [EL] questions about preliminary relief and the Voting Rights Act Amendments of 2014

Section 6(b)(4) of the VRAA states: "In any action for relief described in this subsection, the court shall grant the relief if the court determines that, on balance, the hardship imposed upon the defendant by the issuance of the relief will be less than the hardship which would be imposed upon the plaintiff if the relief were not granted." (emphasis added)

A committed textualist would presumably read this as foreclosing any consideration of the likelihood of success on the merits.

If I'm right that completely severing the PI standard from likelihood-of-success would run afoul of Boerne, it would behoove the sponsors of the VRAA to redraft this section so that it supplements rather than overrides the traditional 4-part test.

A reader of the listserve emailed me privately to suggest that Congress's power under Article III, Section 2 to regulate procedure in the federal courts may in effect exempt the PI standard of the VRAA from a Boerne-based challenge.  I'm not convinced.  Any PI standard unique to the VRAA is clearly meant to enforce the 14th and 15th Amendments, and a relaxed test for Pis under the VRAA creates a burden on defendant states.  Boerne would seem to require a congruence-and-proportionality justification for this burden (at least insofar as Boerne applies to enforcement legislation under the 15th Amendment).

--Chris

Christopher S. Elmendorf
Professor of Law
UC Davis School of Law
400 Mrak Hall Drive
Davis, CA 95616
530.752.5756

From: "john.k.tanner at gmail.com<mailto:john.k.tanner at gmail.com>" <john.k.tanner at gmail.com<mailto:john.k.tanner at gmail.com>>
Date: Tuesday, January 28, 2014 12:09 PM
To: Rick Pildes <pildesr at exchange.law.nyu.edu<mailto:pildesr at exchange.law.nyu.edu>>
Cc: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] questions about preliminary relief and the Voting Rights Act Amendments of 2014

It is both national in scope and to set a new standard, with the relative hardships tilting toward plaintiffs if the change occurs within the 6 months before an election or without the requisite notice.  I see no mention likelihood of success on the merits -- it would tend to operate as a prophylaxis against last-minute voting changes --  but it doesn't explicitly eliminate the traditional test, although that is a legitimate reading.

On Tue, Jan 28, 2014 at 2:51 PM, Pildes, Rick <pildesr at exchange.law.nyu.edu<mailto:pildesr at exchange.law.nyu.edu>> wrote:
My recollection is that the new PI standard in 6(b)(4) for voting cases is a nationwide standard.

From:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Scarberry, Mark
Sent: Tuesday, January 28, 2014 2:37 PM
To: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] questions about preliminary relief and the Voting Rights Act Amendments of 2014

Sorry for sending a quick response that may not take the text of the bill into account, but I have another engagement shortly.

To the extent that the new coverage formula may appropriately target certain jurisdictions, the bill could require judicial preclearance of all changes in those jurisdictions. If the bill instead temporarily prevents changes from going forward in the covered jurisdictions while the changes are considered by the court *only on a showing of relative hardships that favor the plaintiffs* this seems an even less intrusive measure.

Again, my apologies if this is not responsive to the statutory provision.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Christopher S. Elmendorf
Sent: Tuesday, January 28, 2014 11:19 AM
To: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: [EL] questions about preliminary relief and the Voting Rights Act Amendments of 2014

As I read the draft bill, Section 6(b)(4) seems to do away with the conventional four-part test for preliminary injunctions, in favor of a simple weighing of relative hardships.  Am I mistaken?  Is there any precedent for a statute that does away with the "likelihood of success" factor with respect to preliminary relief?  And if Section 6(b)(4) does in fact eliminate this factor, is it constitutional?  (How can the contemplated relief be "congruent and proportional" to the remedying or prevention of constitutional violations, if the relief can be had without any showing that a Section 2 violation is at least somewhat likely?)

Thanks in advance to anyone who can shed light on these matters.

Best,

Chris

Christopher S. Elmendorf
Professor of Law
UC Davis School of Law
400 Mrak Hall Drive
Davis, CA 95616
530.752.5756<tel:530.752.5756>

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