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Supreme Court of the United States ______ No. 16A-______ IN THE SUPREME COURT OF THE UNITED STATES ___________________________ OHIO DEMOCRATIC PARTY; DEMOCRATIC PARTY OF CUYAHOGA COUNTY; MONTGOMERY COUNTY DEMOCRATIC PARTY; JORDAN ISERN; CAROL BIEHLE; AND BRUCE BUTCHER, Applicants, v. JON HUSTED, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE OF THE STATE OF OHIO; AND MIKE DEWINE, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF OHIO, Respondents. ___________________________ EMERGENCY APPLICATION TO STAY SIXTH CIRCUIT JUDGMENT PENDING DISPOSITION OF A PETITION FOR A WRIT OF CERTIORARI ___________________________ DIRECTED TO THE HONORABLE ELENA KAGAN, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SIXTH CIRCUIT ___________________________ Marc E. Elias Donald J. McTigue Counsel of Record J. Corey Colombo Bruce V. Spiva Derek S. Clinger Elisabeth C. Frost MCTIGUE & COLOMBO LLC 545 East Town Street Rhett P. Martin Columbus, OH 43215 Amanda R. Callais PERKINS COIE LLP 700 Thirteenth Street, N.W. Suite 600 Washington, D.C. 20005 (202) 654-6200 [email protected] Charles G. Curtis, Jr. Joshua L. Kaul PERKINS COIE LLP 1 East Main Street, Suite 201 Madison, WI 53703 Counsel for Applicants September 1, 2016 STATEMENT PURSUANT TO SUPREME COURT RULE 29.6 Pursuant to Supreme Court Rule 29.6, the undersigned states that none of the Applicants has a parent corporation, and no publicly held corporation holds 10 percent or more of any Applicant’s stock. -i- TABLE OF CONTENTS STATEMENT PURSUANT TO SUPREME COURT RULE 29.6 ................................ i TABLE OF AUTHORITIES ........................................................................................ iii OPINIONS BELOW ...................................................................................................... 6 JURISDICTION ............................................................................................................ 7 STATEMENT OF THE CASE ...................................................................................... 7 A. Relevant Background ................................................................... 7 B. Procedural History ..................................................................... 11 REASONS FOR GRANTING THE STAY .................................................................. 15 I. There Is a Reasonable Probability This Court Will Grant Certiorari and a Fair Prospect the Court Will Reverse ................................................... 15 A. The Sixth Circuit’s Excessive Deference to the State’s Justifications For Its Elimination of Golden Week Conflicts With Decisions of This Court and Other Courts of Appeals .................................................................................... 17 B. The Sixth Circuit’s Misapplication of the Clear-Error Standard of Review Conflicts With Decisions of This Court and Other Courts of Appeals ........................................... 19 C. The Sixth Circuit’s Section 2 Framework of Analysis Conflicts With Decisions of This Court and Other Courts of Appeals .................................................................................... 24 II. Eliminating Golden Week Just Over a Month Before Its Scheduled Start Will Cause Irreparable Injury to Applicants and the Public Interest ............................................................................................................. 32 A. Applicants and the Public Interest Will Be Irreparably Injured Absent a Stay Pending This Court’s Consideration .............................................................................. 33 B. The State Will Not Be Harmed by a Stay .................................. 35 CONCLUSION ............................................................................................................ 37 APPENDIX CERTIFICATE OF SERVICE -ii- TABLE OF AUTHORITIES Cases Anderson v. City of Bessemer, 470 U.S. 564 (1985) .................................................... 20 Bush v. Gore, 531 U.S. 98 (2000) ................................................................................... 1 Chisom v. Roemer, 501 U.S. 380 (1991) .......................................................... 16, 28, 32 Crawford v. Marion Cnty. Bd. of Elections, 553 U.S. 181 (2008) ..................... 4, 18, 24 Frank v. Walker, 135 S. Ct. 7 (2014) ........................................................................... 35 Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) ........................................................... 25 Frank v. Walker, 773 F.3d 783 (7th Cir. 2014) ........................................................... 23 Gonzalez v. Ariz., 677 F.3d 383 (9th Cir. 2012) .......................................................... 29 Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) ........................................... 18 Harvell v. Blytheville Sch. Dist. No. 5, 71 F.3d 1382 (8th Cir. 1995) ........................ 20 Holder v. Hall, 512 U.S. 874 (1994) ............................................................................ 16 Hollingsworth v. Perry, 558 U.S. 183 (2010) .............................................................. 15 Husted v. Ohio St. Conf. of the NAACP, 135 S. Ct. 42 (2014) .......................... 1, 10, 35 Johnson v. Governor of Fla., 405 F.3d 1214 (11th Cir. 2005) .................................... 29 Lane v. Wilson, 307 U.S. 268 (1939) ........................................................................... 16 League of Women Voters of N.C. v. N.C., 769 F.3d 224 (4th Cir. 2014) ............. passim League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008) .......... 7, 22 Libertarian Party of Ohio v. Husted, 751 F.3d 403, 412 (6th Cir. 2014) ................... 33 McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215 (4th Cir. 1995) .......................... 18 Mich. St. A. Philip Randolph Inst. v. Johnson, No. 16-2071, 2016 WL 4376429 (6th Cir. Aug. 17, 2016) ............................................................................................ 21 N.C. St. Conf. of NAACP v. McCrory, No. 16-1468, 2016 WL 4053033 (4th Cir. July 29, 2016) ........................................................................................... 4, 20, 23, 30 N.C. St. Conf. of the NAACP v. McCrory, No. 16-1468, Order (4th Cir. Aug. 4, 2016) (ECF No. 156) ................................................................................................... 6 N.C. v. League of Women Voters of N.C., 135 S. Ct. 6 (2014) ..................................... 35 -iii- N.C. v. N.C. Conf. of NAACP, No. 16A168, 2016 WL 4535259 (Aug. 31, 2016) .......... 6 Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580 (6th Cir. 2012) ....................... 21 Ne. Ohio Coal. for the Homeless v. Husted, No. 06-896, 2016 WL 3166251, at *55 (S.D. Ohio June 7, 2016) ............................................................................. 10, 12 Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) ................................ 10, 21, 33 Ohio St. Conf. of NAACP v. Husted, 43 F.Supp.3d 808 (S.D. Ohio 2014) ................. 10 Ohio St. Conf. of the NAACP v. Husted, No. 14-3877, 2014 WL 10384647 (6th Cir. Oct. 1, 2014) .................................................................................................. 1, 11 Ohio State Conf. of NAACP v. Husted, 768 F.3d 524 (6th Cir. 2014) ................ passim Pilcher v. Rains, 853 F.2d 334 (5th Cir. 1988) ........................................................... 20 Pullman-Standard v. Swint, 456 U.S. 273 (1982) ...................................................... 20 Purcell v. Gonzalez, 549 U.S. 1 (2006) ........................................................................ 34 Thornburg v. Gingles, 478 U.S. 30 (1986) ........................................................... passim Veasey v. Abbott, No. 14-41127, 2016 WL 3923868 (5th Cir. July 20, 2016) ..... passim Veasey v. Perry, 135 S. Ct. 9 (2014) ............................................................................. 35 Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) ......................... 4, 18, 19 Statutes 28 U.S.C. § 1254 ............................................................................................................. 7 28 U.S.C. § 2101 ............................................................................................................. 7 52 U.S.C. § 10301 ................................................................................................. 2, 5, 27 Ohio Const. § 5.01 .......................................................................................................... 8 Ohio Rev. Code § 3501.109 .......................................................................................... 36 Ohio Rev. Code § 3503.01 .............................................................................................. 8 Ohio Rev. Code § 3509.01 .............................................................................................. 8 Other Authorities Resp. of N.C. St. Conf. of NAACP et al. to Applicants’ Em. Mot. for Recall and Stay of Mandate (Aug. 25, 2016) ............................................................................... 6 Settlement Agreement, Ohio St. Conf. of NAACP v. Husted, No. 14-404 (S.D. Ohio Apr. 17, 2015), (ECF No. 111-1) ...................................................................... 11 -iv- TO THE HONORABLE ELENA KAGAN, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SIXTH CIRCUIT: Applicants respectfully request an
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