On the Election Injunctions

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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).

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  1. The USPS shouldn't have been ordered to check for ballots they failed to deliver in a timely manner, after the illegally-appointed Postmaster General took deliberate measures to slow down mail delivery leading up to the election where mail-in ballots were expected to be used in mass quantities?

    Answer this: why not just say you favor disenfranchising voters?

    1. The Judge gave a large and complex entity an extraordinarily short and probably impossible time limit to accomplish the task.

      The USPS has over 500,000 employees in more than 8,500 facilities.

    2. I think his point was a salient legal point.

      Two types of injunctions:
      (A) Mandatory (do this); and
      (B) Prohibitory (you cannot do this).

      In the law, mandatory injunction, especially preliminary mandatory injunctions, are highly disfavored. It's somewhat surprising that no one has really mentioned it.

      Here is an example of the difference (being cute):
      A. You must keep mowing your lawn every day until X.
      B. You cannot mow the disputed lawn until X.

      The reason (A), and mandatory injunctions in general, are disfavored, is twofold. The first is, as pointed out, it tends to make Courts involved in micromanagement. The second is that, as a general rule, Courts are loathe (even in equity) to make parties do something, as opposed to prevent them from doing something. It's why you also seldom see specific performance (except contracts for land) as a remedy.

      Anyway, it's interesting to think about.

      1. First, think of this as habeus corpus with ballots.

        Second, election law is different, as anyone who practices election law learns quickly.

        Third, people who support or appease vote suppressors are lousy people who deserve the scorn of every decent person.

        Carry on, clingers.

        1. *shrug*

          I was in favor of the order, personally (regarding the USPS). And I do practice a little bit of election law, but mostly local. Someone has to do it. (He did address the election law issue at the end of the second paragraph; it's up to you whether it's convincing).

          That said, I think it was an interesting way to look at it. I hadn't really thought about it.

          PS- I would say that with the exception of some old-school judges, I haven't found the judiciary to be particularly keen on the mandatory/prohibitory distinction.

        2. First, think of this as habeus corpus with ballots.

          You can think of it any way you like. You can call it the writ of pinkus unicornus. That is not what it is.

          Second, election law is different, as anyone who practices election law learns quickly.

          A semi-valid point, but the Supreme Court has made clear that, at least at the federal level, unless Congress says otherwise, the traditional rules of equity apply when issuing an injunciton.

          Third, people who support or appease vote suppressors are lousy people who deserve the scorn of every decent person.

          Which means, what? We should simply toss all legal rules and precedent because someone cries "vote suppression?" The rules of equity have been around a long time, and deal with all kinds of bad situations. Your personal predilictions notwithstanding.

    3. Jason, voter FRAUD disenfranchises voters.

      Why do YOU favor disenfranchising voters???

      1. Ordering the USPS to sweep for ballots they failed to deliver on-time does not logically lead to voter fraud. For all you know, those ballots could still be legally delivered, or set aside for court challenges to their validity.

        That's called a non-sequitur.

        Try again.

  2. Election matters are different, aren't they?

  3. I'm curious what the basis is for commandeering federal officials (e.g., the USPS) to assist the states in conducting what are essentially state elections. A state can pass a law allowing ballots to be counted if they are received by mail, but I don't see how it can require federal officials to help them in this process, such as by prioritizing the processing of ballots over other mail services. And by extension, I don't see how a court can order the USPS to do so. Maybe there's some quirk to the anti-commandeering principle so that it only works in one direction, but it's curious that I haven't seen anyone mention this issue.

    1. If there's reason to believe the incumbent has directed his appointee over the USPS to interfere with the regular delivery of mail in order to prevent delivery of ballots, it isn't really "commandeering." I don't really know if it's illegal for the incumbent to do this but I should hope so. In which case, this is about preventing federal officials from interfering in the election.

    2. "I’m curious what the basis is for commandeering federal officials"

      So, commandeering refers to the federal government ordering state officials to carry out federal law. See, e.g, Printz.

      It doesn't refer to a federal court ordering a federal agency to do something.

      There is a slight side issue regarding the fact that many state and federal laws have a baked-in assumption regarding the mail (that the postal service exists, that it is carrying out its duties in good faith, etc.), but that's neither here nor there.

      ...yet.

  4. While the wrong guy being elected would be one of the biggest possible irreparable injuries, as long as any at-issue ballots are segregated (and provisionally counted) pending resolution of court cases, things are fine.

    1. A pity the Court couldn't be bothered to order them segregated BEFORE the election, instead of waiting until several days after.

      1. Well, PA promised to do so.
        I can't imagine why they didn't. Just like I can't imagine why they didn't correctly keep spoiled ballots for recounts and investigation rather than destroying them.

        1. You always destroy the evidence if you think you can get away with it, if you're up to no good. But I doubt the Supreme court is going to apply spoliation, either.

  5. I hope this doesn't preclude courts ordering a full forensic audit of the election, which is what needs to happen ASAP.

    1. Really?! We need to audit Texas, Florida, Ohio, California, New York, etc? Maybe we just do a recount in the states that require one for starters (Georgia, for example.)

      In the mean time, if the Trump campaign can provide more than hearsay evidence on actual ballot fraud, then audit those cases as they come up.

    2. "I hope this doesn’t preclude courts ordering a full forensic audit of the election, which is what needs to happen ASAP."

      Desperate, whining, delusional bigots are becoming my favorite culture was casualties.

      1. 71,000,000 Americans who have been disenfranchised is a dangerous thing. Just sayin....

        There's talk of a national trucker's strike starting November 29th.
        That would cripple the country -- peacefully, and without you being able to do a damn thing about it....

  6. The braying of the frustrated vote suppressors sounds great to me.

    Is there a single conservative law professor in America who does not favor race-targeting voter suppression designed to benefit Republican candidates?

    1. I don't think that dead people -- of any race -- should be voting...

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