The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I am not able to offer a longer post right now, but one short observation about the remedies requested in some of the election litigation. Attorneys have asked for and are asking for, and courts have given and are contemplating giving, mandatory injunctions without recognition that those are disfavored. A mandatory injunction is one that requires an act to be done; a prohibitory injunction is one that forbids an act. Mandatory injunctions are disfavored for good reasons—because they are more likely to embroil a court in difficult management of the parties.
That mandatory injunctions are disfavored, especially preliminary mandatory injunctions, is blackletter law, even if it should turn out that some irreparable injuries are, well, irreparable. (For cites, see Myth of the Mild Declaratory Judgment at 1130.) This is a good place for a reminder that there is no equitable principle of "complete relief" for injuries (on the phrase's origin and initial context, see page 24 of this dissenting opinion by Judge Stras). To the contrary, there are a number of established equitable principles that give reasons for stopping short of complete relief for the plaintiff, as well as some that would allow overshooting of that point. And the usual principles about equitable remedies should apply fully in election-related cases. See, e.g., North Carolina v. Covington, 137 S. Ct. 1624, 1625–26 (2017) (per curiam) ("Relief in redistricting cases is 'fashioned in the light of well-known principles of equity.'" (quoting Reynolds v. Sims, 377 U.S. 533, 585 (1964)).
In short, without extraordinarily strong reasons—and just showing irreparable injury and strength on the merits are not enough—courts should not be granting mandatory preliminary injunctions. That applies both to the order for the USPS to "sweep" for ballots on Election Day (see here), and also to the Trump campaign's request for an injunction from the Supreme Court (see here).