Last night the Wall Street Journal Law Blog ran a post about how the Ninth Circuit issued stay that allowed citizens of Nevada to vote "none of these candidates" in the November elections. Two weeks ago, Judge Robert C. Jones struck down the Nevada law that requires "none of these candidates" to be printed on Nevada election ballots. Judge Jones thought that the ballot option was unconstitutional. Yesterday, the Ninth Circuit issued an emergency stay of that ruling.
The Law Blog noted that it seemed unlikely that Judge Jones' ruling was unlikely to stand given the concurrence to the stay filed by Judge Reinhardt. Quoting the concurrence, the post says:
"I wish to make clear that the panel is in agreement that the basis for our grant of the stay of the district court’s order…is that the likelihood of success on the merits favors the state,” Judge Reinhardt wrote. ”Plaintiffs’ arguments offer an inadequate basis for this court to conclude that Nevada’s 37-year-old statute providing for ‘None of these candidates’ ballots is contrary to the Constitution or to any federal statute.”The post goes on:
Judge Reinhardt said Judge Jones, an appointee of George W. Bush, dragged his feet in assigning the case and issuing his order, so the state wouldn’t have time to seek review by the appeals court.That caught my attention. What, I wondered, did Judge Jones actually do? According to Judge Reinhardt's concurrence, things went as follows.
“Such arrogance and assumption of power by one individual is not acceptable in our judicial system,” Judge Reinhardt wrote.
We’ve reached out to Judge Jones for comment
Nevada republicans brought a lawsuit in June seeking to remove the none option from the ballot. To accomplish this they filed a motion for a preliminary injunction marked "EXPEDITED TREATMENT REQUESTED." Both parties wanted the injunction handled quickly because ballots need to be printed no later than September 7, so that they can be sent to Nevadans serving overseas in the military.
The judge originally assigned to the case withdrew on June 11. Judge Jones--who as the Chief Judge assigns the judge to cover the withdrawl--took almost a month, until July 3, to assign the case to himself. Judge Reinhardt wrote that "the resultant delay had the prejudicial effect of rendering moot" the request for expedited briefing.
After assigning himself the case, Judge Jones waited 17 more days, until July 20, to schedule a hearing on the preliminary injunction motion. The judge did not wait 17 days to hear the motion, he waited 17 days to schedule the motion. By way of comparison, my experience in other federal district courts has been that the court is typically able to consult its calendar and schedule a hearing on the same day (and often same phone call) that the court becomes aware a hearing is needed. I have certainly never experienced a 17-day delay in getting a hearing scheduled.
On July 20, Judge Jones scheduled the injunction hearing to take place on August 22. Thus the parties waited more than two months to get the expedited hearing they requested. At the hearing, Nevada's lawyer requested Judge Jones rule so that an appeal could be made to the Ninth Circuit. Judge Jones responded, "that's your problem." However, the judge did give an oral ruling that he would issue an injunction and stated that he would issue a written order "as quickly as I can." Judge Reinhardt notes that no order was issued in the thirteen days between August 22 and the Ninth Circuit's emergency stay ruling yesterday.
Instead of issuing an order, when he learned that the parties had appealed the oral ruling, Judge Jones denied he had issued an oral ruling but instead scheduled another hearing on whether he should grant a stay of his order (which he didn't issue) for September 14, 2012. That date is a week later than the parties told the judge was the last possible day the ballots could be sent to the printer. Judge Jones then tried to say that the September 14 hearing was a precondition to the parties being able to appeal his August 22, ruling (or non-ruling depending on whom you believe). Judge Jones did this despite saying on the record on August 22, that he was denying an oral motion to stay enforcement of his injunction order "so that [Nevada] can ask the appellate court for a stay."
This set of events is pretty incredible. I cannot recall ever hearing of a district court acting this way. While it is strong language to accuse the district court of trying to thwart appellate review by the Ninth Circuit (and the Supreme Court), it is hard to see what other reason might explain the delays as well as the attempt by Judge Jones to directly contradict his statements at oral argument. Mr. Torvik, can you think of an explanation?