Preliminary injunction: What’s your function?

“Hav­ing once granted the right to vote on equal terms, the State may not, by later arbi­trary and dis­parate treat­ment, value one person’s vote over that of another.”

—Bush v. Gore, 2000

“Vot­ing in Ohio is uni­form, acces­si­ble, fair and secure.”

— John Husted, Ohio Sec­re­tary of State

Your teenage child is headed out the door, jacket on and keys in hand. You ask where she’s going and when she’ll be back. She tells you that she’s going to a friend’s house and that a few other peo­ple are com­ing over. Your brain goes into par­ent mode and you have just a moment to make a deci­sion. If you let her go, the ship has sailed and the time to ask more ques­tions is gone. Instead, you put a hold on things and ask more ques­tions — ques­tions about who will be present, whether her friend’s par­ents will be home and what they’ll be doing. By doing so, you pre­vent irrev­o­ca­ble harm and allow for infor­ma­tion to be gath­ered before mak­ing a final decision.

The legal sys­tem does much the same thing with a pre­lim­i­nary injunc­tion — the “wait just a minute young lady” of the judi­cial process. Nei­ther a ter­mi­na­tion of the case nor a final order, a pre­lim­i­nary injunc­tion is instead a tem­po­rary order in place until a court can gather addi­tional evi­dence and make a final ruling.

In the fed­eral sys­tem a court must con­sider four fac­tors before decid­ing whether to issue a pre­lim­i­nary injunc­tion. First, the court must con­sider whether the party ask­ing for the injunc­tion will suf­fer irrepara­ble harm if the injunc­tion is not issued. Sec­ond, the court must con­sider whether the party ask­ing for the injunc­tion has a “strong like­li­hood of suc­cess” on the mer­its of the case. Third, the court must ask whether issu­ing the injunc­tion will cause harm to other per­sons or enti­ties. Fourth, the court must weigh whether the pub­lic good will be served by the issuance of the injunc­tion. Only after con­sid­er­ing all four of those fac­tors can the court decide whether to issue the tem­po­rary order.

Usu­ally, an injunc­tion is an order pre­vent­ing some­one from doing some­thing or requir­ing some­one to do some­thing. Fre­quently, the injunc­tion is an order pre­vent­ing a law from tak­ing effect or a gov­ern­ment offi­cial from car­ry­ing out a cer­tain act. Such was the case one week ago when U.S. Dis­trict Court Judge Peter C. Econo­mus ordered that Ohio Sec­re­tary of State John Husted not enforce Ohio Revised Code sec­tion 3509.03 that defines the days and hours that boards of elec­tions will be open for in-person absen­tee voting.

In his deci­sion, Judge Econo­mus deter­mined that the changes to Ohio’s early vot­ing require­ments had reduced the like­li­hood that peo­ple could vote early, placed an unequal bur­den on cer­tain classes of vot­ers who were more likely to vote on the week­end, and had cre­ated dif­fer­ent rules for over­seas and mil­i­tary vot­ers. In so con­clud­ing, he came to the deci­sion that the plain­tiffs were likely to pre­vail on the mer­its and that they would be harmed if an injunc­tion was not granted. He con­cluded that there would be harm to the State of Ohio by way of increased bur­dens on (and costs to) local boards of elec­tions but that this was out­weighed by the other fac­tors in the case. Finally, he con­cluded that the pub­lic inter­est was served by issu­ing the pre­lim­i­nary injunction.

Ohio Attor­ney Gen­eral Mike DeWine noted that Ohio has always had a dif­fer­ent set of rules for over­seas mil­i­tary vot­ers and stated that he would appeal the deci­sion to the 6th U.S. Cir­cuit Court of Appeals, the fed­eral appeals court that has juris­dic­tion over cases from Ohio. The Court of Appeals, know­ing that the elec­tion is just two months away, is likely to expe­dite the appeals process in an attempt to rule on the appeal prior to the election.

Because the appeal was forth­com­ing, Sec­re­tary of State Husted ordered local county boards of elec­tions to wait and not yet set absen­tee and early vot­ing hours on the days cov­ered by the injunc­tion. In response, the Dis­trict Court set a hear­ing for next Thurs­day to deter­mine whether it will order that those hours be set. The Sec­re­tary of State’s office has said that it will com­ply with what­ever rul­ing the court makes and will strive to make the vot­ing hours the same in all counties.

In-person absen­tee vot­ing begins 35 days before the elec­tion which means that you can vote at the Delaware County Board of Elec­tions early vot­ing cen­ter, 149 E. Orange Road, Lewis Cen­ter, at 8 a.m. Oct. 2. Whether that vot­ing will con­tinue through the week­end before Elec­tion Day is now in the hands of the 6th Cir­cuit Court of Appeals.

David Hej­manowski is a Mag­is­trate and Court Admin­is­tra­tor of the Delaware County Juve­nile Court and a for­mer Assis­tant Pros­e­cut­ing Attorney.

Posted by Dave Hejmanowski on Sep 6 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.