The Volokh Conspiracy
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Justice Kavanaugh Stays District Court Order in Ohio Ballot Initiative Dispute
Not all of the action on the shadow docket involves President Trump.
On Wednesday evening, in Yost v. Brown, Justice Brett Kavanaugh entered a stay of a district court order in requiring Ohio Attorney General Dave Yost to publish two contested ballot initiative summaries. Justice Kavanaugh also called for a response by next Wednesday.
The underlying dispute concerns the wording of the ballot initiative summary prepared by the initiative proponents. Attorney General Yost rejected the summary prepared by the proponents on the grounds that it is not fair and truthful and the proponents sued. The district court entered an injunction requiring the AG to publish the summary, and this order was affirmed by a divided panel of the U.S. Court of Appeals for the Sixth Circuit.
Judge Karen Moore wrote the majority, joined by Judge Andre Mathis. Judge John Bush dissented.
Judge Moore's opinion begins:
Ohio Attorney General Dave Yost has eight times rejected a proposed summary of a proposed constitutional amendment, preventing its proponents from circulating a petition and collecting signatures needed to place it on the ballot. Each time, Yost concluded that the petition summary was not a fair and truthful summary of the proposed constitutional amendment. The district court held that this likely violated the ballot initiative proponents' First Amendment rights and entered a preliminary injunction ordering Yost to certify two ballot initiative summaries proposed by Plaintiffs here. However, upon Yost's request, the district court stayed the preliminary injunction pending appeal. Because we agree with the district court that Plaintiffs' First Amendment rights were likely violated here, and because the other stay factors do not weigh in Yost's favor, we GRANT Plaintiffs' motion to lift the stay and LIFT the stay entered by the district court.
Judge Bush's dissent begins:
I would deny the motion to vacate the stay of the district court's injunction. All the relevant legal factors support continuance of the stay. The driving consideration here is that the Ohio Attorney General is likely to prevail in this action because the First Amendment does not bar the State from regulating the content of a certified initiative summary. The summary is a legislative action that, at most, constitutes government, not private, speech. But even if it were private speech, the Attorney General's regulation of its content would still be permissible because the summary would constitute speech that occurs within a discretionary government benefit program, which the Supreme Court has held may be subject to content-based regulation. I explain these points more fully below.
Given the underlying First Amendment issue, it is conceivable that the Court accepts this case for argument. We shall see.
Yost v. Brown is not the only non-Trump action on the shadow docket. Earlier today the Court denied the application for a stay of execution in Mahdi v. Stirling.
