Merrill v. Milligan

• Decision Date: 07 February 2022
• Docket Number: s. 21A375 (21–1086),21A376 (21–1087)
• Citation: 142 S.Ct. 879 (Mem)
• Parties: John H. MERRILL, Alabama Secretary of State, et al. v. Evan MILLIGAN, et al. John H. Merrill, Alabama Secretary of State, et al. v. Marcus Caster, et al.
• Court: U.S. Supreme Court

142 S.Ct. 879 (Mem)

John H. MERRILL, Alabama Secretary of State, et al.

v.Evan MILLIGAN, et al.

John H. Merrill, Alabama Secretary of State, et al.

v.Marcus Caster, et al.

Nos. 21A375 (21–1086)

21A376 (21–1087)

Supreme Court of the United States.

February 7, 2022

The application for a stay or injunctive relief presented to Justice THOMAS and by him referred to the Court in No. 21A375 is treated as a jurisdictional statement, and probable jurisdiction is noted. The application for a stay or injunctive relief presented to Justice THOMAS and by him referred to the Court in No. 21A376 is treated as a petition for a writ of certiorari before judgment. Respondents in No. 21A376 do not oppose treating the application as a petition for a writ of certiorari before judgment and do not oppose granting the petition (although they do oppose granting a stay).With that fact taken into account, the petition is granted. The district court's January 24, 2022 preliminary injunctions in No. 2:21–cv–1530 and No. 2:21–cv–1536 are stayed pending further order of the Court.

Justice KAVANAUGH, with whom Justice ALITO joins, concurring in grant of applications for stays.

I concur in the Court's stay of the District Court's injunction. I write separately to explain my vote, and to briefly respond to the principal dissent. Post, p. 883 (opinion of KAGAN, J.).

To begin with, the principal dissent is wrong to claim that the Court's stay order makes any new law regarding the Voting Rights Act. The stay order does not make or signal any change to voting rights law. The stay order is not a ruling on the merits, but instead simply stays the District Court's injunction pending a ruling on the merits. The stay order follows this Court's election-law precedents, which establish (i) that federal district courts ordinarily should not enjoin state election laws in the period close to an election, and (ii) that federal appellate courts should stay injunctions when, as here, lower federal courts contravene that principle. See, e.g., Purcell v. Gonzalez , 549 U.S. 1, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam ).

The principal dissent's catchy but worn-out rhetoric about the "shadow docket" is similarly off target. The stay will allow this Court to decide the merits in an orderly fashion—after full briefing, oral argument, and our usual extensive internal deliberations—and ensure that we do not have to decide the merits on the emergency docket. To reiterate: The Court's stay order is not a decision on the merits.

As background: This stay application arises from a dispute over Alabama's congressional election districts. The State recently adopted a districting plan that, according to the State, employs the same basic districting framework that the State has maintained for several decades. But two weeks ago, a three-judge District Court concluded that Alabama's congressional districting plan likely violates federal voting rights law. The District Court ordered that Alabama's congressional districts be completely redrawn within a few short weeks. The District Court declined to stay the injunction for the 2022 elections even though the primary elections begin (via absentee voting) just seven weeks from now, on March 30.

The State has appealed, contending that the District Court was wrong on the merits. And given that the primary elections begin next month, the State has also sought an emergency stay of the District Court's injunction with respect to the 2022 elections.

With respect to the request for a stay of the District Court's injunction for the 2022 elections, the State argues that the District Court's injunction is a prescription for chaos for candidates, campaign organizations, independent groups, political parties, and voters, among others. The State says that those individuals and entities now do not know who will be running against whom in the primaries next month. Filing deadlines need to be met, but candidates cannot be sure what district they need to file for. Indeed, at this point, some potential candidates do not even know which district they live in. Nor do incumbents know if they now might be running against other incumbents in the upcoming primaries.

On top of that, state and local election officials need substantial time to plan for elections. Running elections state-wide is extraordinarily complicated and difficult. Those elections require enormous advance preparations by state and local officials, and pose significant logistical challenges. The District Court's order would require heroic efforts by those state and local authorities in the next few weeks—and even heroic efforts likely would not be enough to avoid chaos and confusion.

For those and other reasons, the State says that any judicial order requiring the State to redraw its congressional district lines should not apply to the imminent 2022 elections that begin next month.

Under our precedents, a party asking this Court for a stay of a lower court's judgment pending appeal or certiorari ordinarily must show (i) a reasonable probability that this Court would eventually grant review and a fair prospect that the Court would reverse, and (ii) that the applicant would likely suffer irreparable harm absent the stay. Hollingsworth v. Perry , 558 U.S. 183, 190, 130 S.Ct. 705, 175 L.Ed.2d 657 (2010) (per curiam ). In deciding whether to grant a stay pending appeal or certiorari, the Court also considers the equities (including the likely harm to both parties) and the public interest. Ibid.

As the Court has often indicated, however, that traditional test for a stay does not apply (at least not in the same way) in election cases when a lower court has issued an injunction of a state's election law in the period close to an election. See Purcell , 549 U.S. 1, 127 S.Ct. 5, 166 L.Ed.2d 1. This Court has repeatedly stated that federal courts ordinarily should not enjoin a state's election laws in the period close to an election, and this Court in turn has often stayed lower federal court injunctions that contravened that principle. See ibid. ; see also Merrill v. People First of Ala. , 592 U.S. ––––, 141 S.Ct. 25, 208 L.Ed.2d 244 (2020) ; Andino v. Middleton , 592 U.S. ––––, 141 S.Ct. 9, 208 L.Ed.2d 7 (2020) ; Merrill v. People First of Ala. , 591 U.S. ––––, 141 S.Ct. 190, 207 L.Ed.2d 1113 (2020) ; Clarno v. People Not Politicians , 591 U.S. ––––, 141 S.Ct. 206, 207 L.Ed.2d 1154 (2020) ; Little v. Reclaim Idaho , 591 U.S. ––––, 140 S.Ct. 2616, 207 L.Ed.2d 1141 (2020) ; Republican National Committee v. Democratic National Committee , 589 U.S. ––––, 140 S.Ct. 1205, 206 L.Ed.2d 452 (2020) (per curiam ); Democratic National Committee v. Wisconsin State Legislature , 592 U.S. ––––, 141 S.Ct. 28, 208 L.Ed.2d 247 (2020) (declining to vacate stay).

That principle—known as the Purcell principle—reflects a bedrock tenet of election law: When an election is close at hand, the rules of the road must be clear and settled. Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others. It is one thing for a State on its own to toy with its election laws close to a State's elections. But it is quite another thing for a federal court to swoop in and re-do a State's election laws in the period close to an election.¹

Some of this Court's opinions, including Purcell itself, could be read to imply that the principle is absolute and that a district court may never enjoin a State's election laws in the period close to an election. As I see it, however, the Purcell principle is probably best understood as a sensible refinement of ordinary stay principles for the election context—a principle that is not absolute but instead simply heightens the showing necessary for a plaintiff to overcome the State's extraordinarily strong interest in avoiding late, judicially imposed changes to its election laws and procedures. Although the Court has not yet had occasion to fully spell out all of its contours, I would think that the Purcell principle thus might be overcome even with respect to an injunction issued close to an election if a plaintiff establishes at least the following: (i) the underlying merits are entirely clearcut in favor of the plaintiff; (ii) the plaintiff would suffer irreparable harm absent the injunction; (iii) the plaintiff has not unduly delayed bringing the complaint to court; and (iv) the changes in question are at least feasible before the election without significant cost, confusion, or hardship. Cf. Lucas v. Townsend , 486 U.S. 1301, 108 S.Ct. 1763, 100 L.Ed.2d 589 (1988) (Kennedy, J., in chambers); McCarthy v. Briscoe , 429 U.S. 1317, 97 S.Ct. 10, 50 L.Ed.2d 49 (1976) (Powell, J., in chambers).

Here, however, even such a relaxed version of the Purcell principle would not permit the District Court's late-breaking injunction. That is because the plaintiffs could not satisfy at least two of those four prerequisites—namely, that the merits be clearcut in favor of the plaintiff, and that the changes be feasible without significant cost, confusion, or hardship.

As to the merits, the underlying question here is whether a second majority-minority congressional district (out of seven total districts in Alabama) is required by the Voting Rights Act and not prohibited by the Equal Protection Clause. But the Court's case law in this area is notoriously unclear and confusing. As THE CHIEF JUSTICE rightly notes, there is "considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim." Post, at 883 (dissenting opinion). Indeed, an amicus brief filed by 14 States says (with some justification) that this Court and the lower federal courts "have been less than clear" about the rules that govern majority-minority districts, and bluntly adds that "States need clarity." Brief for State of Louisiana et al. as Amici Curiae 3, 25.

At this preliminary juncture, the underlying merits appear...