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.