By Ariane de Vogue, CNN Supreme Court Reporter
The Supreme Court Monday denied an emergency request filed by Democratic lawyers to reinstate a federal court order barring the Trump campaign from engaging in activities that Democrats allege could lead to voter intimidation in Ohio.
The ruling is a win for the Trump campaign and the GOP state parties, which have successfully fended off several pre-emptive lawsuits filed by Democrats across the country that accuse Trump and Republicans of “conspiring to threaten and intimidate minority voters in urban neighborhoods from voting in the 2016 election.”
Democrats are seeking temporary restraining orders against the Trump campaign and Republicans, as they raise the alarm of possible voter intimidation due to comments from the GOP nominee and others.
But while judges have at times been sympathetic, Democrats have now faltered in each case where a hearing has been held: Ohio, Nevada and Arizona. Monday, federal judges will hold hearings in two additional states, Pennsylvania and North Carolina.
Steve Vladeck, a CNN legal contributor and professor at the University of Texas Law School, said the lawsuits show how concerns about what happens at polling places are changing, but that could mean courts aren’t ready to jump in quite yet.
“Last-minute litigation isn’t unusual in election years, but those cases are invariably about the mechanics of voting,” Vladeck said.
“These cases, in contrast, present questions about ballot suppression by private actors that are, at least in contemporary times, novel. So I think some of what we’re seeing from the courts is reluctance to move too quickly on these claims, as opposed to more conventional election-related litigation,” Vladeck added.
Justice Ruth Bader Ginsburg, who had been under fire for comments last summer criticizing Trump, was the only justice to write separately. She made a point of saying that she voted to deny the Democrats’ request because the laws in Ohio already forbid voter intimidation.
After her comments last summer, there were some who argued that if the Supreme Court were to ever hear Trump v. Clinton type case after the election she would have to recuse herself.
Although the final vote count may never be known, Ginsburg’s statement also highlights that the eight-member court was not deadlocked in a case presented to it a day before the election.
By and large the rulings have been victories for the Trump campaign but experts say that the Democrats have managed to bring the issue to the forefront — and put it before judges in case something changes on Election Day.
“Although the Democrats did not prevail in these cases, they did at least force the Republican Party to state, for the record, that they will not engage in voter intimidation,” said Joshua A. Douglas, an election law expert at the University of Kentucky College of Law. “That by itself is important, as it means that the Republican Party is on record saying they will comply with all state voting laws.”
The challenges from the Democrats share much of the same language, charging that Republican state parties, the Trump campaign and Roger Stone, who runs an organization called “Stop the Steal,” are in violation of the Voting Rights Act and the Ku Klux Klan Act of 1871.
In Arizona and Nevada, the judges declined to issue injunctions against the Republicans.
Path of the Ohio case
A district court judge in Ohio ruled against the Trump campaign and issued an injunction on Friday. In a broad ruling, Judge James Gwin of the US District Court for the Northern District of Ohio mostly sided with Democrats against Trump. He issued an order restricting both campaigns of “interrogating, admonishing, interfering with, or verbally harassing voters” and also banned parties from “gathering or loitering” at polling places and “taking photos” of voters in and around the voting place.”
Chad A. Readler, a lawyer for the Trump campaign, filed an emergency motion with the 6th Circuit Court of Appeals lambasting the lower court’s order charging that if left to stand it would “irreparably” harm the campaign “as well as any unsuspecting citizen who falls in the district court’s cross-hairs.”
“Intimidating voters is illegal, and the campaign does not remotely condone such conduct,” Readler wrote.
On Sunday, a three-judge panel of appellate judges lifted the order, giving another victory to the Trump campaign. The court said the Democrats had failed to demonstrate a likelihood of success. A full panel of judges on the court declined to hear an appeal.
Sunday night, Democrats filed an emergency request with the Supreme Court asking justices to vacate the order from the 6th Circuit.
“Over the past several months, Donald J. Trump has warned that the 2016 election will be stolen from him unless supporters in Ohio and elsewhere swarm urban communities and “watch,” “(a)nd when (I) say ‘watch,’ you know what I’m talking about, right?” Marc Elias, a lawyer for the Democrats argued in briefs with the high court. “Trump has said “(t)he only way we can lose . . . and I really mean this . . . is if cheating goes on.”
Elias, also argued that a three judge panel of the federal appeals court ruled even before the Democrats were through filing their briefs.
“The 6th Circuit ordered the stay notwithstanding that it did not call for or receive a substantive response brief from Applicant and, by its own admission, had not yet reviewed the critical evidence on which the District Court relied,” he wrote.
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