[EL] Motion for preliminary injunction and likelihood of success

[Mark Scarberry]

I am not completely sure that "likelihood of success" (as used by this
Massachusetts court and as used by the US S. Ct.) actually means greater
than a 50% chance of success.

If I put a bullet in one chamber of a revolver, give it spin, and prepare
to pull the trigger, you may well say, "Don't do that! You are likely to
die!" I doubt you would say, "Don't do that! You aren't likely to die but
you do have a 16.7% chance of dying!"

I have looked for clear confirmation of the meaning of "likelihood of
success" in this context and have not found it.

So it may be possible that both parties did, in a sense, have a substantial
likelihood of success.

This would soften the Supreme Court's stated requirements for preliminary
relief.

I suppose another way to put it is that if a party has a 40% chance of
succeeding, then its likelihood of success is substantial.

Thoughts?

Mark

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

On Mon, Nov 7, 2016 at 4:08 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

> *MA Court, Relying on State Constitution, Allows Three Voters to Vote Who
> Missed Registration Deadline <http://electionlawblog.org/?p=88951>*
>
> Posted on November 7, 2016 3:55 pm <http://electionlawblog.org/?p=88951>
>  by *Rick Hasen* <http://electionlawblog.org/?author=3>
>
> The opinion is here
> <http://electionlawblog.org/wp-content/uploads/ma-reg.pdf>. (Case brought
> by ACLU.)
>
> Doesn’t really seem to decide anything of significance except for these
> three voters. And the opinion contains this non-sequitur: “Both sides have
> a substantial likelihood of success on the merits.” That’s not how it
> works. If both sides have equally strong arguments, then the party bearing
> the burden of proof loses.
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88951&title=MA%20Court%2C%20Relying%20on%20State%20Constitution%2C%20Allows%20Three%20Voters%20to%20Vote%20Who%20Missed%20Registration%20Deadline>
>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>
>
>
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