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Kobach v. United States Election Assistance Commission

United States District Court, D. Kansas

May 7, 2014

KRIS W. KOBACH, et al., Plaintiffs,
v.
THE UNITED STATES ELECTION ASSISTANCE COMMISSION, et al., Defendants.

MEMORANDUM AND ORDER

ERIC F. MELGREN, District Judge.

After this Court ordered the United States Election Assistance Commission (EAC) to add language requested by Arizona and Kansas to the state-specific instructions on the federal mail voter registration form, the EAC and four intervenor groups filed five motions for a stay pending appeal. (Docs. 161, 163, 164, 165, 166). Because the EAC and intervenors have not demonstrated that they would suffer irreparable harm, the Court declines to issue a stay. Additionally, the Court finds that any harm to the moving parties does not outweigh the harm to the states, that the public interest does not support a stay, and that the movants have not demonstrated a strong likelihood of success on appeal. Therefore, the motions are denied.

I. Factual and Procedural Background

On March 19, 2014, this Court ordered the EAC to add language to the state-specific instructions of the federal mail voter registration form to reflect the state laws of Arizona and Kansas that require proof of citizenship to register to vote.[1] The EAC and four intervenor groups have filed a notice of appeal.[2] The appeal has been docketed with the United States Court of Appeals for the Tenth Circuit.[3] The EAC and each of the intervenor groups have filed separate motions to stay this Court's order pending appeal.

II. Legal Standard

Rule 62(c) of the Federal Rules of Civil Procedure permits a district court to modify an injunction while an appeal is pending.[4] The purpose of a stay is to preserve the status quo pending the outcome of an appeal.[5] Because a stay intrudes into ordinary judicial review, it is generally not a matter of right even if irreparable injury might otherwise result.[6] A stay of an equitable order is a unique device that is rarely granted.[7] And the grant of a stay pending appeal is entirely discretionary.[8] A party must move first in the district court for a stay pending appeal before making a similar motion in the court of appeals.[9]

The party requesting a stay bears the burden of showing that the circumstances justify a stay.[10] A court considering a motion to stay must balance the competing interests.[11] These competing interests are articulated in a four-factor test, similar to the test for issuing a preliminary injunction:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.[12]

If the moving party can establish that the other three factors tip decidedly in its favor, the "likelihood of success" requirement is somewhat relaxed.[13] Under these circumstances, likelihood of success is demonstrated when the moving party has raised "questions going to the merits so serious, substantial, difficult and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation."[14]

III. Analysis

The EAC asserts that the balance of harm tips sharply in its favor such that it is appropriate to preserve the status quo until the Tenth Circuit rules on the appeal. On the other hand, the states argue that the balance of the three harm factors weighs in their favor. All parties agree that the probability of success factor carries less weight if the moving parties can demonstrate that the other three factors tip decidedly in their favor. As a result, this Court first addresses the three harm factors.

A. Harm to the EAC and the intervenors

The primary harm asserted by the EAC is that this Court's order renders the EAC unable to carry out what it considers its statutory mandate to regulate federal voter registration. The EAC argues that this Court's order unduly constrains its discretion to determine what is necessary to be included on the state-specific instructions. The harm asserted by the intervenors concerns their ability to conduct successful voter registration drives. In response, the states argue that the intervenors' claim that eligible voters will be prevented from registering to vote unless a stay is granted is purely theoretical. The states also maintain that the extra effort necessary to conduct voter registration drives according to the language ordered by this Court does not rise to the level of irreparable harm.

To obtain a stay pending an appeal, the EAC and intervenors must demonstrate irreparable harm, which is an injury that is "certain, great, actual, and not theoretical, " and not "merely serious or substantial."[15] They also must show that the harm is imminent.[16] The key word in considering irreparable harm is irreparable, which means that mere harm-even if substantial-in terms of money, time, and energy that would be expended is not enough.[17] In short, "[i]rreparable harm, as the ...


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