I am finally returning to blogging a bit. From the “judicial smackdown” files: A week ago, a district judge agreed with arguments that Nevada’s 36-year-old statute requiring a “None of These Candidates” option on the ballot for statewide elections is likely unconstitutional and issued an oral preliminary injunction. That’s pretty remarkable – on what basis does he think there is a good argument that this statute is unconstitutional? We don’t know, because he didn’t issue a written opinion. His failure to issue a written opinion is also pretty remarkable, because the state made clear (repeatedly) that September 7 was the deadline for it printing ballots. And lest you think he had no time because the case had just come in the courthouse door, he had been sitting on the request for a preliminary injunction (which repeatedly requested expedited treatment) since mid-June. Anyway, the 9th Circuit has responded with its own remarkable action. Two days ago a unanimous three judge panel (including Reinhardt from the left and Bea from the right) granted Nevada’s emergency motion to stay the district court’s injunction. More striking is Judge Reinhardt’s concurrence, which states flatly (and repeatedly) that the district judge’s actions could be explained only as an attempt at evading appellate review, by issuing an oral order shortly before September 7 and the written opinion afterwards, at which point the ballots would have been printed. The quotation in the title of this post is representative of the harshness of the concurrence. Essentially, Reinhardt is accusing the district judge of bad faith and malfeasance. I must say that I have had a hard time coming up with a persuasive charitable explanation for the judge’s timing (maybe it’s too hot in Nevada to do much over the summer?). But that is one harsh concurrence.
H/T to Rick Hasen.
Update: from a commenter, here is the district judge’s harsh response to Reinhardt’s harsh concurrence.