Pavek v. Simon

Background

The plaintiffs are Madeline Pavek, Ethan Sykes, DSCC, and DCCC. The defendant is Steven Simon, in his official capacity as Minnesota Secretary of State. The court had previously issued a preliminary injunction on June 15, 2020. That injunction barred enforcement of Minnesota Statute § 204D.13, subdivision 2, known as the “Ballot Order” statute. The statute required major political-party candidates to be listed on Minnesota general-election ballots in reverse order based on the average number of votes their parties received in the last state general election.

Instead, the preliminary injunction required the Secretary of State to conduct a lottery assigning Minnesota’s four current major political parties a single statewide ballot order for the 2020 general election. The intervenor-defendants—Donald J. Trump for President, Inc., the Republican National Committee, the National Republican Senatorial Committee, the National Republican Congressional Committee, and the Republican Party of Minnesota—later intervened and filed an appeal of the preliminary injunction with the Eighth Circuit. They then filed an emergency motion asking this court to stay, or pause, the preliminary injunction while that appeal was pending.

Legal standard

Under Federal Rule of Civil Procedure 62(d), a district court may suspend, modify, restore, or grant an injunction while an appeal from an interlocutory order is pending. The court described a stay as an extraordinary remedy and applied four factors: (1) whether the stay applicant made a strong showing that it was likely to succeed on the merits; (2) whether the applicant would suffer irreparable harm without a stay; (3) whether a stay would substantially injure other interested parties; and (4) where the public interest lay. The moving party had the heavy burden of establishing that a stay was warranted.

Likelihood of success on appeal

The intervenor-defendants argued that they were likely to succeed because the plaintiffs allegedly lacked standing and because the ballot-order dispute might present a nonjusticiable political question. They also identified questions concerning the proper constitutional test, whether the statute favored some political parties, whether ballot position imposed a significant burden on voting rights, and whether Minnesota had a legitimate interest in encouraging political diversity and reducing incumbency’s power.

The plaintiffs responded that these arguments showed, at most, a possibility of reversal and did not explain why the preliminary-injunction ruling was wrong or why the Eighth Circuit was likely to rule differently. The Secretary of State opposed the motion but did not address the likelihood-of-success factor.

The court found that the intervenor-defendants had not made the required strong showing. It relied on its earlier analysis of the Democratic Senatorial Campaign Committee’s and Democratic Congressional Campaign Committee’s standing and its earlier distinction of an Eleventh Circuit decision on which the intervenor-defendants relied. The court also found that the possibility that the Eighth Circuit might adopt reasoning from a nonbinding concurrence did not establish a strong likelihood of success. The intervenor-defendants’ list of issues largely repeated questions the court had already considered without explaining how the court had erred. The court further concluded that the cases cited concerning political diversity, term limits, campaign-finance limits, and ballot-order statutes did not demonstrate a strong likelihood of reversal.

Irreparable harm

The intervenor-defendants argued that they would suffer irreparable harm because there might not be enough time for appellate review before the Secretary’s deadline for setting ballot order. They also asserted that the lottery could harm their candidates’ electoral prospects and require the diversion of resources.

The court found these alleged injuries speculative. It noted that the intervenor-defendants had not provided affidavits, declarations, or other evidence supporting resource diversion. It also found that the lottery treated major political parties equally and gave the intervenor-defendants a 50 percent chance of improving their ballot position and a 25 percent chance of remaining in the same position. The court concluded that the loss of what it had found was likely an unconstitutional electoral advantage did not itself establish irreparable harm.

The court also rejected the claim that insufficient time for appellate review justified a stay. The intervenor-defendants had already intervened and filed their appeal, and the Eighth Circuit might review the matter on an expedited schedule. In addition, the court found that the timing problem was largely the intervenor-defendants’ own making because they waited to intervene and then waited further before seeking a stay.

Harm to others and public interest

The intervenor-defendants argued that the plaintiffs would suffer little harm from a stay because the ballot-order law had only an attenuated effect on voting rights. They also argued that the public interest favored enforcing legislation enacted by elected representatives and avoiding last-minute changes to election laws.

The plaintiffs argued that these positions were inconsistent with the intervenor-defendants’ claim that non-enforcement of the statute would cause them irreparable harm. The Secretary of State argued that another change in ballot-order procedures shortly before the 2020 general election would harm Minnesota election officials and threaten reliable ballot counting, including for absentee voters.

The court found that the harm to the plaintiffs and Secretary, together with the public interest, counseled against a stay. It relied on its earlier findings that the plaintiffs faced an imminent threat of irreparable harm without an injunction and that the public interest favored protecting their constitutional rights. It also stated that the public interest in enforcing duly enacted legislation yielded to the public interest in protecting constitutional rights when the court had already found the statute likely unconstitutional.

Disposition

After balancing all four factors, the court held that the intervenor-defendants had not met the heavy burden required for a stay. Judge Susan Richard Nelson therefore denied the intervenor-defendants’ Emergency Motion to Stay the June 15, 2020 preliminary injunction pending the results of their appeal.